Tower Hamlets Consortium Ltd v Fisher [1998] UKEAT 97_98_0111

EAT
Tower Hamlets Consortium Ltd v Fisher
[1998] UKEAT 97_98_0111 · 1998-11-01
MR JUSTICE LINDSAY : We have before us an appeal in the matter of Ms S M Fisher v Tower Hamlets Consortium. Tower Hamlets Consortium lost below and it is their appeal. It is an appeal against a decision of the Industrial Tribunal at Stratford under the Chairmanship of Miss Lewzey. There had been a hearing on 21st August 1997 and the award was promulgated on 25th September 1997.The decision against which Tower Hamlets Consortium appeals was a majority decision in the following terms:
"The majority decision of the Tribunal is that:- (i) the Applicant was dismissed;
(ii) the Applicant was unfairly dismissed by reason of her conduct;(iii) the Applicant contributed to her dismissal and it is just and equitable that a percentage reduction of 80% should apply to the basic and the compensatory award; and

(iv) the issue of remedy was adjourned to 15 October 1997."

On the appeal today we have before us Ms Woodhead representing the Tower Hamlets Consortium. Ms Fisher does not appear and is not represented.It is quite plain from the papers that on Christmas Eve 1996 Ms Fisher purported to resign. However, if that apparent resignation was in truth a justified response to the employer's conduct, the employer being in fundamental breach of contract, then rather than it being seen as a resignation it would be seen to be a case of constructive dismissal. Once one gets to the stage of constructive dismissal one could then move on to see whether that constructive dismissal was unfair. So the whole nub of the case was whether or not there was a constructive dismissal.The procedural history began, inevitably, with an IT1, and in that IT1 Ms Fisher set out very fully the nature of her complaint. It runs over several pages. It is not just a case of a simple statement of the bare nature of the complaint or anything like that, it is something close to being a witness statement. What Ms Fisher said was on this crucial question (foot of page 17 of our papers - describing a meeting):
"... either, she dismiss me, or I resign, I went for what I thought was my best option - so I resigned."
The IT 3 that answered that denied that there had been a dismissal. It asserted that there had been a voluntary resignation and that therefore there was no constructive dismissal. Tower Hamlets Consortium put in written witness statements which makes our life easier because we can see what the evidence-in-chief was. There were two ladies who put in witness statements on behalf of Tower Hamlets Consortium. The first was Mrs Amanda Johnson, who is a director of Tower Hamlets Consortium. She gives detailed evidence of a meeting on 24th December 1996. She said:
"11.On 24 December 1996 Ms Fisher arrived and was offered coffee. Whilst I was preparing coffee for her in the communal kitchen she proceeded to state in a loud voice that she intended to resign because she knew I was going to sack her. I suggested that she should wait until we reached the meeting room to discuss her confidential affairs because other staff present could overhear what she was saying. I also said that her assumption was wrong and that her dismissal was not a foregone conclusion, the disciplinary hearing having been arranged for 13 January 1997.
12. Ms Manning joined us on our way into the meeting room. We commenced the meeting and Ms Fisher said she wished to resign and she wanted to leave immediately. I attempted to dissuade her and again stressed that she should seek advice from her union. I explained the disciplinary policy and procedure and THC [ Tower Hamlets Consortium ] requires employees to act in a particular way and she may [ our emphasis ] have breached this code of conduct. Therefore, in order to address the issues arising from this we would have to proceed to the disciplinary hearing on 13 January 1997. I also advised her that she would be required to repay the money she owed for personal calls.13. Ms Fisher kept saying that she was going to resign. I said that she should think about this over the holiday and that I would see her in the new year because I would be on leave until 13 January. She said that she wanted to change career direction as she had never been lucky in this career she had chosen. She said again that she wanted to resign and demanded a piece of paper. I advised her that she really should sit alone and think about this because she was doing the wrong thing and Ms Manning and I then left the room.14. Ms Fisher then came to my office some 10 minutes later and handed me her resignation. I expressed my concern and sadness of what she had chosen to do but said that I would respect her decision to leave immediately if she was certain that was what she wanted. ...15. Ms Fisher had been very calm and unemotional throughout, consistently stating her intention to resign. I am sure she had decided before the meeting started that she would resign. I was concerned throughout the meeting to counsel her not to resign."The other person whose witness statement we have is Kristina Jackson, a finance assistant. She was at the meeting. She says:
"5. Susan [ Ms Fisher ] was very quiet, agreeing with what Amanda [ Mrs Johnson ] was saying, and she admitted that she did make all the calls and she wanted to resign. She began to say that she had been working in the caring field for eight years and she wanted to change career direction. She said something along the lines of she has never been lucky in her chosen career and had already registered with agencies.
6. Amanda said that Susan should go away and think about it, but Susan said she had thought about it and she wanted to resign. In the end Amanda said I'll leave you to sit and think about it but I really think you should go away over the holiday period and think about it. However, Susan was quite adamant she wanted to resign and asked for a piece of paper. She was quite sure what she wanted to do.. ..8. At no time during this meeting did Amanda say anything to suggest that Susan would be dismissed if she did not resign, not even to suggest that she would be dismissed after the disciplinary hearing on 13 January."Well, plainly there was a conflict about what had happened on 24th December 1996. It is most important to note that the totality of the tribunal, not just the majority or the minority, but all of them, came to this conclusion at paragraph 10:
"10 On 24 December, Ms Fisher came to the Respondent's office and Mrs Johnson called another member of staff into the meeting. There was a conflict on the evidence on what took place at the meeting on 24 December and the Tribunal accepted the evidence of the Respondent concerning that meeting. ..."
That can only mean a number of things, namely, that Ms Fisher was told that dismissal was not a foregone conclusion; that the case was only one that she may have breached the code of conduct; that at no time was she told anything to suggest that she would be dismissed if she did not resign, or that she would be dismissed after the disciplinary hearing; that she was calm and unemotional at the meeting; that she repeatedly said that she was going to resign; that she had said that she wanted to change her career direction; that she was told to sit alone and think about it before resigning because she was doing the wrong thing; that she did indeed sit alone for some ten minutes or so, but then that she handed in her letter which speaks of resignation.The majority of the tribunal say in paragraph 17:
"17 The majority view of the CBI and TUC member of the Tribunal was that Ms Fisher felt [ our emphasis ] under threat that she would lose her job because of the letter she received on 20 December and that if she was sacked, she would lose the means to get another job. ..."
But the test of what is a fundamental breach is not so subjective. There was no express finding by the majority that there was indeed in fact a threat to her and there could not have been such a finding, given that they had preferred the respondents' evidence on the point. Despite that, it is this finding, subjectively described - that Ms Fisher felt under threat - that the majority at first rely upon because they then go on to say in the same paragraph:
"17 ... The view of the majority was that this pressure gave Ms Fisher no alternative but to resign and as such, the pressure constituted a breach of the implied term of mutual trust and confidence in the contract of employment. ..."
So their first view is that she felt she was under threat, and yet there could have been no factual basis for that, and then they move on to treating it as if there was a real threat, and seeing that real threat as that which constituted the implied breach. That finding could fairly be described as genuinely perverse, in the sense that a reasonable tribunal properly directing itself could not have held that that was a fundamental breach given that they had preferred the evidence of the respondents on the crucial meeting of 24th December 1996. Perhaps because there was some feeling on the majority's part that they had strayed from the true path, that they rather change tack and a little later in paragraph 17 they say this:
"(e) On hearing that Ms Fisher did not receive the letter of 16 December, a reasonable employer would have been flexible enough to go back to their original plan of having an interview before taking further action, unless investigation had led them to the conclusion that Ms Fisher was lying when she said that she had not received their letter. Instead, management not only moved straight to the next stage of discipline, but did so under the procedures for gross misconduct. It is this management behaviour that the majority felt breached the implied term of mutual trust and confidence and went to the root of the contract, provoking a genuine fear for her job in Ms Fisher and resulting in her resignation on 24 December. If management had acted differently, they might have forestalled the extreme reaction of Ms Fisher and the outcome might have been of a different order of magnitude."
At paragraph 18 the tribunal continue:
"18 The majority of the Tribunal considered that the breach of the implied term of mutual trust and confidence was a matter with a major impact in the particular circumstances and Ms Fisher was unable to accept the threat to her. The majority considered that the breach of the implied term of mutual trust and confidence went to the root of the contract of employment because of the circumstances and management behaviour which made Ms Fisher feel that she should resign."
I have not set out the earlier history of the case, but there is no suggestion that Tower Hamlets Consortium knew before the 23rd December, when Ms Fisher telephoned, that she had not received the earlier letter of 16th December. By the time she telephoned on 23rd December, the disciplinary hearing had already been convened for 13th January. Tower Hamlets Consortium had had no reason to know that the failure of Ms Fisher to attend on 20th December was otherwise than a wilful failure; she had not made any contact at all before the 20th December.The letter of 20th December could perhaps be regarded as somewhat heavy-handed. It is debatable whether a reference to gross misconduct was suitable or not. So there might have been a certain amount of heavy-handedness there. But there is no evidence whatsoever that Ms Fisher knew of the proper procedural steps and knew that they had been departed from, even if they had, and no evidence whatsoever that she was impressed by the fact that there had been a breach of disciplinary process, or that she felt that the breach of disciplinary process indicated some inexorable steps being taken towards dismissing her. What she had relied on from the very start was that passage that I read earlier:
"... either, she dismiss me, or I resign, I went for what I thought was my best option - so I resigned."
But that must have had no basis in fact, given that the Industrial Tribunal all preferred the view of the respondents on the conduct of the meeting of 24th December.Nor is it even fair to regard management as having moved straight to the next stage of discipline, which is what paragraph 17(e) says. Because, of course, what had happened was that on 24th December, the day before Christmas, a specially convened meeting at an informal level took place at which Ms Fisher had her complaint heard in the manner that the evidence has indicated. The employer, it seems, responded with some sympathy to Ms Fisher's position, and had gone to some lengths to arrange a meeting on the very day before Christmas, and the evidence, which I read out earlier, indicates a sympathetic reaction to Ms Fisher's plight at the time.The majority view speaks of a threat in that paragraph 18, which I have read, but the only threat actually referred to, is the earlier reference in paragraph 17 to the perceived, but unfounded view, that she would lose her job. It seems to us that the majority was in effect doing this: they were saying that there was something which Ms Fisher could have relied upon as a fundamental breach, and then jumped to a view that she had relied upon it. They failed to notice firstly, that they had preferred the evidence of the respondents, in which case, Ms Fisher's allegation that it was a case of resign or be fired, had no basis of fact. Secondly, that she had made no complaint that her understanding of the disciplinary process was such that she understood it to represent an inexorable step towards an inescapable dismissal. It is a case, in other words, where the majority substituted their own view for Ms Fisher's view. That, it seems to us, is an error of law.In our view, there was no constructive dismissal. Once a tribunal had got to the stage where they preferred the evidence of the respondents, as they say that they did, no reasonable tribunal could have moved on from that to have found that there had been constructive dismissal.The majority view then went on to say at paragraph 26 of their reasons:
"26 The majority decision of the Tribunal (the Chairman dissenting for the reasons set out above) was that the dismissal was unfair as no full investigation and disciplinary procedure was concluded."
The majority had earlier held that Ms Fisher's claim of constructive dismissal succeeded. We see no proper ground for the claim that there had been a constructive dismissal.It is hard to see also, although perhaps this is stripping more gilt off the lily, how it could be that Tower Hamlets Consortium was criticised for not having a full investigation/disciplinary procedure. Once, on 24th December, Ms Fisher had made it manifestly plain that she was resigning, to have a further full investigation/disciplinary procedure would seem to be quite redundant. Indeed, how, in practical terms, could it have been arranged, in the sense that as Tower Hamlets Consortium was no longer the employer, they had no ability to call Ms Fisher to any further meeting. Once a person has made it manifest that he or she intends to resign, there are plainly difficulties in the way of a further investigation.But that we do not need to go into, because our basic ground for overturning the decision is that no reasonable tribunal properly instructing itself could have held that this was a constructive dismissal and accordingly we allow the appeal. We set aside the decision for error of law. We find that the applicant was not dismissed but rather that she had resigned and had done so in circumstances that did not involve constructive dismissal.