MR C E NOEL v EMPLOYMENT TRIBUNAL SERVICE [1999] UKEAT 259_99_0706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 259_99_0706Case No Appeal No. EAT/259/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C E NOELAPPELLANTEMPLOYMENT TRIBUNAL SERVICERESPONDENT
Before
His Honour Judge Peter ClarkLord Gladwin of CleeDate 7 June 1999
[1]APPEARANCES For the Appellant MR C NOEL (brother on behalf of Appellant) JUDGE PETER CLARK: This is an appeal by Mr Noel, the Applicant before the Bristol Employment Tribunal sitting on 9 th to 10 th December 1998, dismissing his complaint of Unfair Dismissal the Respondent, the Employment Tribunal Service. That decision with extended reasons was promulgated on 7 th January 1999. The Appellant had been employed in the Civil Service for 28 years. Since 1992 he had held the post of Interlocutory Section Manager at the Cardiff Regional Office of Employment Tribunals. His line manager was Mr Rees, the Secretary.[2]Following complaints about the Appellant by female members of staff, Mr Rees interviewed the Appellant on 18 th March 1998. The meeting became heated. The Appellant began shouting and swearing. His language included particularly offensive remarks about female members of staff. He was heard by members of staff working nearby, the Tribunal found. Following the meeting he left in a temper and then went off sick and has never returned to work.[3]Thereafter Mr Rees sought advice from Mr Oates of personnel. The Secretary of Tribunals in Scotland, Mr Easton, was asked to investigate. The Appellant was suspended on 1 st April 1998; a charge letter was sent to him, and on 7 th April he was interviewed by Mr Easton and at that time was represented by a Trade Union representative. During that interview the Appellant apologised unreservedly for his behaviour, referring to domestic stress. Mr Easton recommended downgrading and a transfer.[4]The recommendation was accepted by Mr Oates, who informed the Appellant by a letter dated 20 th May 1998 that he found four out of the five charges substantiated and imposed the following penalties: first that he should be demoted from the managerial grade to an administrative grade; secondly that there would be no promotion for three years; further that he would be on probation for one year; and finally that he was to receive training and a severe written warning that any further offences may result in dismissal. Although he has not returned to work due to sickness, the Appellant remains in the employment to this day.[5]The Appellant appealed internally against Mr Oates' decision, first to the Chief Executive of the agency, Mr Jones, and then to the Permanent Secretary of the Department of Trade and Industry, Mr Scholar. Those appeals were unsuccessful. The Employment Tribunal accepted that an employee may be dismissed, notwithstanding that he remains in the employment in a different capacity, Hogg v Dover College (1990) ICR 39; see also Alcan Extrusions Ltd v Yates (1996) IRLR 327.[6]However, they found that the Respondent was entitled contractually to impose the disciplinary penalties, which it did. In these circumstances they found that there was no dismissal and accordingly the complaint was dismissed.[7]In this appeal the Appellant is represented by his brother who first submits that this case is analogous to that of Hogg, in that the effect of the disciplinary penalties imposed, particularly the downgrading from a managerial to an administrative position, has the effect of imposing a new and different contract on the Appellant which he has never accepted. Further, he refers to certain alleged breaches of the Respondent's contractual disciplinary procedure, which he submits amounts to a fundamental breach of contract.[8]We reject those two submissions as they have been put to us. We accept the distinction drawn by the Tribunal between the unilateral variation in terms imposed in the case of Hogg and the imposition of disciplinary penalties provided for under the existing contract. Further, we consider that the Tribunal was entitled to conclude that the points taken on the Respondent's disciplinary procedures were not so significant as to go to the root of the contract entitling the Appellant to treat himself as Constructively Dismissed under the Hogg principle.[9]However, our concern in this case is with the submission put in the grounds of appeal in these terms:
"If I was not summarily dismissed then I believe that the subsequent actions of the respondents in demoting me to a Grade 4 Administration Officer and the subsequent reduction in pay amounts to a constructive dismissal."
We couple that with the Employment Tribunal's self direction at paragraph 20 of their reasons which, supplying a word which we think is missing from the text, reads as follows:
"If such a power were exercised completely [without] cause, that would be outside the provisions of the contract but that is not the case. There was misconduct, a disciplinary procedure and a decision. Whatever procedural criticism can be made, in our judgement, down grading which is the main point at issue, is well within the terms of the contract. Consequently the applicant cannot regard the letter of 20 May as constituting a direct dismissal."
It appears from that paragraph that the Tribunal are directing themselves as a matter of law, that provided the contract provides for certain penalties to be imposed for disciplinary offences, there can be no breach of contract in these circumstances. That direction arguably appears to overlook the principle to be found in British Broadcasting Corporation v Becket (1983) IRLR 43, that the imposition of a penalty wholly disproportionate to the disciplinary offence or offences, may amount to a fundamental breach of contract, entitling the employee to treat himself as constructively dismissed.[10]It is unclear at this ex-parte preliminary hearing, whether that point was sufficiently before the Employment Tribunal below to entitle the Appellant to take it here. See Jones v Burdett Coutts School (1998) IRLR 521 . It will be open to the Respondent to argue that point at the full appeal hearing.[11]Nevertheless on that sole ground we shall permit the matter to proceed to a full appeal hearing. It will be listed for half a day, Category C. There will be exchange of Skeleton Arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those Skeleton Arguments to be lodged with this Tribunal at the same time. There are no further directions.