Keung v Chui [1999] UKEAT 1412_98_2603

EAT

Keung v Chui

[1999] UKEAT 1412_98_2603 · 1999-03-26

MR JUSTICE HOLLAND : By an IT1 dated 17 June 1998, Mrs Laura Keung complains of unfair constructive dismissal and of breach of contract. Those complaints arise out of the following circumstances.

From January 1985 to 2 April 1998, she was employed as a clerical worker by the Respondent. It is convenient to go immediately to the complaint as it was presented to the Industrial Tribunal, it reads as follows:

"I was employed as a clerical assistant by Peter C K Chui T/A C K Chui and Co and Eastern Travel Centre from January 1985 to 2nd April 1998.

A note was left on my desk on 11th March 1998 that CCTV will be installed in the office for security. On 13th March, a camera was installed on a bookcase immediately behind my desk to my left and a microphone to my right. This room is only occupied by me so that all I did and said could be continually monitored and recorded by Respondent in his office by a 14" colour monitor with recorder. This monitoring equipment was not installed to monitor other members of staff.

On 16th March 1998, I wrote to the Respondent to explain that I felt intimidated and harassed by the monitoring equipment which had been installed. I said that I am intending to move to another available desk to work or he move the camera to a more suitable location to avoid a problem. I also asked to view the tape to reassure myself of his genuine intention to install the CCTV for security reason only.

After my letter, on 17th March 1998, after I left work at 5pm, a second camera was installed above the front door at the top of the stairs and at the same time the camera behind me was relocated slightly away from my desk but covering both desks in the room so that I was unable to relocate myself to the unoccupied desk next to mine so that I was not continually in the direct line of the camera. The Microphone remain unchanged.

I have written to the Respondent on 19th March and 28th March but he has failed to respond to my letters, he has failed to remedy the situation. He just ignored me complete as if nothing has happened.

On 2nd April 1998, I felt no longer able to cope with the Respondent's conduct and I felt forced to resign. By virtue of his conduct towards me. I believe the Respondent was in breach of my contract of employment and I was entitled to terminate my contract without notice. I contend that I was constructively dismissed and the dismissal was in these circumstances unfair."

The complaint came before an Employment Tribunal held at Manchester on 5 August 1998. In the overall result, the Tribunal dismissed that complaint. The reasons were initially given in summary form and subsequently they were given in extended form. By way of those Extended Reasons they make substantial number of findings of fact. The crucial findings are that the camera and microphone had been installed with the aim of improving the security of the premises, for the safety of the employees and for the protection of the clients and their property.

They then note that there had been a poor personal relationship between the Applicant and the Respondent for some two years immediately preceding her termination, hence the fact of communication between the parties by way of letter only. Then the Tribunal conclude by directing themselves as to the principles involved in a case of constructive dismissal as laid down by Lord Denning MR in Western Excavating (ECC) Limited v Sharp

[1978] IRLR 27

and on that premise then deal with the matter in these terms:

"There is an implied essential term in every contract of employment that the employer and employee will not, without reasonable cause or excuse act in such a way, so as to undermine the mutual trust and confidence which needs to exist between employer and employee. Such a term existed in the Applicant's contract of employment. The Applicant contended in this case, that the Respondent's conduct in installing a close circuit television camera and microphone in her room, was a breach of this essential term. When we considered the facts which we had found proven, it was clear that prior to the installation of this close circuit television system, there had been a very poor working relationship between the Applicant and the Respondent. For a period of two years or more before the Applicant terminated her employment, the Applicant and the Respondent had not spoken to each other. Having said this it was clear to us, the Respondent had not breached any term of the contract of employment, including the essential term referred to above, since he had installed the close circuit television system in order to make his employees, including the Applicant and his property safe. It had not been installed with the intention to spy upon the Applicant. Furthermore, when she wrote to him to complain about the location of the camera, he complied with her criticism and moved it. We found that in the circumstances, the Respondent had not been guilty of any conduct towards the Applicant which was a breach of an essential term of the contract of employment, going to the root of the contract, which showed that he no longer intended to be bound by one or more of its essential terms. In these circumstances, we found that the Applicant had not been constructively dismissed. We also found that as she had not been dismissed, her complaint of unfair dismissal was not well founded and we therefore dismissed it."

Against that finding, there is an appeal to this Tribunal. As we have already explained, our functions at this preliminary hearing are as follows. If we can discern an arguable point of law arising out of that decision, we will then send the matter forward for a further hearing at which the Respondent can be represented. If on the other hand we can find no such point, then it is our present duty to dismiss this appeal.

Turning then to the Notice of Appeal, this was prepared on behalf of Mrs Keung, by some advisers and it raises several points. In particular, it raises or seeks to raise a point as to whether there is not an issue here of human rights, by reference to

Article 8 of the European Convention on Human Rights

. Mrs Keung with commendable courtesy and candour, has said that she really cannot add to that notice. It either raises a point or it does not.

With candour of that sort, sympathy comes readily to this Tribunal and she must rest assured that these papers have had a very careful consideration, not least, because on a personal level we have some sympathy with the tensions that a CCTV may in certain circumstances create. But we are not the Tribunal of fact as we have explained, we are a Tribunal to concern ourselves with law and we say straight away, that we cannot find a point of law rising out of this decision which would justify the matter going forward.

Leave aside the matter of human rights, the Notice of Appeal raises nothing that goes to law. As far as the matter of human rights is concerned, that was never raised before and therefore there are no findings at all by this Tribunal which deal with it, nor as we think can they be criticised for that. We are quite satisfied that there simply is not a point that we can identify, which will justify this matter going forward and sympathetic that we are, we have to dismiss this appeal.