Borland v Vessey [1998] UKEAT 468_98_0106

EAT

Borland v Vessey

[1998] UKEAT 468_98_0106 · 1998-06-01

JUDGE HULL QC:

This is an appeal to us by Mr Peter Borland against a decision of the Industrial Tribunal sitting at Hull on 10 December 1997, under the Chairmanship of Mr D P Burton with two Industrial Members.

Mrs Vessey, the Respondent to the appeal, a lady in middle years, was employed by Mr Borland as a Cleaner at his public house, the Jenny Wren Inn at Susworth, Nr Scunthorpe, Lincs. She had complained that she had been unfairly dismissed. She was first employed in May 1993 and as the Industrial Tribunal found, on the facts as they found them, she had been continuously employed for the necessary period.

Her employment, which she said ended because she was dismissed, ended on 2 October 1997. She then made her complaint to the Industrial Tribunal. The answer which was put in by Mr Borland said that she was not dismissed, and the Tribunal sat to hear those issues and reached their decision, in due course, in favour of Mrs Vessey.

There has been, since then, an application for a review, which was refused by the Tribunal, and so there is an appeal to us launched on 9 March 1998. Under our Practice Direction the appeal is put into our list to see whether we can discover, with Ms Simler's assistance and that of Mr Borland, who has attended here today, any fairly arguable point of law.

Ms Simler has invited our attention first of all to what is said in the IT1 (the application to the Industrial Tribunal), in that Mrs Vessey says that she endured considerable criticism and bad language from Mr Michael Borland who is Mr Borland's brother. She says she suffered abusive and unfair criticism to such an extent that she could stand it no more and that she was leaving and not coming back. She says that Mr Michael Borland shouted and swore at her and he was pleased she was not coming back.

That was Mrs Vessey's complaint: unpleasant behaviour by Mr Michael Borland. It was of course for the Tribunal to say whether that was true on the evidence which they heard. They had to say whether, if it was true, it amounted to matters which were so serious that Mrs Vessey was entitled to end her contract, because that of course, it is common ground, is what happened; she walked out. She was going to have no more.

The Industrial Tribunal heard the evidence and when she was giving evidence Miss Vessey mentioned something which is not in her application. According to the Tribunal she said:

"g) ..... She tells us and we accept that Michael Borland told her that he would do the hoovering, that there should only have been an hour and a half of work to do that morning and asked her why she had not finished it. He told her that from that time on she had to do the work required within one and a half hours."

They went on to say that she gave them evidence about foul abuse and unpleasant behaviour by Mr Michael Borland.

The Tribunal found, having considered the evidence, including that of Mr Michael Borland, and Mr Peter Borland who has appeared before us today, that they preferred the evidence of Mrs Vessey. They accepted that. They had to decide a number of issues. They considered at some length whether Mr Borland, the Appellant, could be held responsible for the behaviour of his brother. They found that his brother was indeed an agent for the purpose of giving instructions and supervising Mrs Vessey, and therefore they found that he was liable for anything Mr Michael Borland did. As for their findings they said this:

"8. Having found Peter Borland to be responsible for the actions of his brother, we then have no difficulty in finding that Michael Borland's conduct of 1 and 2 October amounted to conduct designed to breach the implied term of trust and confidence that exists between any employer and employee. Michael Borland also attempted to impose a unilateral reduction in the applicant's working hours. Those acts therefore amounted to repudiatory breaches of contract and as such, acts of constructive dismissal within the meaning of s.95(1)(c) of the Employment Rights Act 1996. That dismissal cannot and has not been justified today and accordingly, we find it to be an unfair dismissal."

Having looked at Mr Borland's Notice of Appeal and the other papers in this case, it appeared to us - this impression was at first not dispelled by what Ms Simler told us - that Peter Borland's complaint about the hearing was that Mrs Vessey had come up for the first time with this allegation - that Michael Borland had tried to shorten her hours. It is not in her application and therefore I understood that it was going to be said "well Mr Peter Borland was surprised and disadvantaged". The Tribunal had either ignored that part of the evidence or not given Mr Borland a proper opportunity to meet it, by perhaps recalling Mr Michael Borland or granting an adjournment or something of that sort. But it then emerged, when Mr Borland himself addressed us, after Ms Simler had done so, that that was not the main thrust of the appeal at all. What was said was that although Mrs Vessey had given this evidence and the Tribunal therefore were entitled, subject to the dictates of fairness, to pay attention to that and find that evidence was true, she had also given some evidence which is not recorded. Mr Peter Borland tells us that he asked Mrs Vessey, by way of cross-examination, "did that act of my brother in trying to shorten your working hours lead you to resign?" and she said "no, it was not that, it is what I put in my application. It was the foul, abusive, unpleasant, boorish behaviour of Mr Michael Borland". "Therefore" says Mr Borland, "this Tribunal have got it wrong and that does take me by surprise". He said "for the first time, on looking at paragraph 8, I see that the Tribunal are saying that there were two grounds on which this lady was entitled to end her contract. One of them, at any rate, she had said she did not rely on".

That sounds all very well. It is a lawyer-like point, if I may say that. So one looks to see whether in fact it avails Mr Borland. Under Section 95 of the Employment Rights Act , which the Tribunal quite rightly referred to, it provides:

"(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, only if)– (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."

It does not say that the employee who has been subjected to such unacceptable and improper conduct has to say "I relied on all of it". It does not say that the employee has to rely upon, as a reason for going, any of it. It simply says that the employee must terminate the contract in circumstances in which he/she is entitled to terminate it without notice, by reason of the employer's conduct.

Here then there can be no appeal it seems to us against the finding of fact that Mr Michael Borland treated this lady in a disgusting way. That is a finding of fact and we are not entitled to go behind that. There can be no going behind, it seems to us, the fact that Mr Peter Borland is responsible for the conduct of his brother in one way or another. Can it be said that simply because this lady said in terms that she relied upon this unpleasant behaviour of Mr Borland's brother, but not on his attempts to shorten her hours, that therefore this decision is in some way flawed? It seems to us that that is, with all respect, a complete non sequitur. The lady established what she had said in her application to the satisfaction of the Tribunal. She was therefore, in the view of the Tribunal, entitled to reject her contract and say "I am accepting this repudiation by my employer, or on his behalf, as terminating my contract". It is perfectly true that she gave further grounds upon which she could have accepted it and then told Mr Borland that she was not relying on those grounds. The Tribunal have recorded nearly all the grounds which she had on which she could have terminated her contract and said that she was entitled to do so. It seems to all of us that that is entirely proper. It is not a case, as we now learn, of Mr Borland saying "I would have wanted an adjournment, I needed to meet this evidence". It is simply this lawyer-like point of saying "she did not rely on this second ground". She did tell the Tribunal that. For present purposes we accept that allegation, of course if this case went on to an appeal we should have to ask the Chairman because it is not in the decision.

The fact is that what cannot be challenged in this decision is that Mrs Vessey had good grounds for terminating her contract in the foul and abusive behaviour of Mr Michael Borland and did terminate it in those circumstances, as Section 95 requires. She is therefore correctly held by the Tribunal, as a matter of law, to have been dismissed. That is, in our view, the end of the matter. It follows that the complaint, as expanded and explained to us, is one which in law does not avail Mr Borland. It is not suggested that the Tribunal acted perversely or wrongly in its decision. They found plenty of grounds in the behaviour of Mr Borland for her to take advantage of, and to say "I will not, in the circumstances, continue in the contract". She did, and they found that she was unfairly dismissed as a result. That, it seems to us, is beyond criticism as a matter of law, and the apparent criticisms which are made do not in fact avail Mr Borland, and therefore we have to say this is not a fairly arguable case and must not proceed to a full hearing and we dismiss it now.