MR ANTHONY CAMPBELL v CANDY DOMESTIC APPLIANCES LTD [2000] UKEAT 0190_00_0706
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON. JUDGE ALTMAN: This is an appeal from the decision of an Employment Tribunal sitting at Liverpool on 24 November 1999. It comes to us by way of preliminary hearing to determine whether there is a point of law, sufficient to justify this matter being heard in full before the Employment Appeal Tribunal.[2]The Appellant was the employee and he made a complaint of unfair dismissal arising out of a constructive dismissal. The Employment Tribunal found that he was not dismissed. They came to that conclusion because the 3 matters of which he made complaint did not, they found: - "Either individually or collectively, go to the heart of the contractual relationship between the applicant and the respondent company and Mr Campbell may have been affected by the 3 incidents but they did not destroy the implied term of trust and confidence. In other words, there was no fundamental breach of his contract, nor indeed did the breach cause the employee to resign. Mr Campbell resigned for his own reasons."[3]Accordingly the Employment Tribunal made a two-fold finding. First of all they found that the incidents, about which, it appears, there was no issue as to whether they had happened, were not sufficiently serious to amount to a breach of trust and confidence and secondly they did not accept the Appellant's evidence that those incidents were the reasons why he left when he did.[4]The Tribunal found the factual background as follows. At the time the Appellant was a Production Operator and a Convenor for the Union at the place where he worked. There was a redundancy process in which he was instrumental and effective on behalf of his members apparently in negotiating a very satisfactory process. During the course of that process, the respondents arranged with the appellant that, although for those within the redundancy exercise their employment was terminated in about February or March 1999, the Respondents would make an exception in the case of the Appellant. They made a separate agreement with him to defer the termination of his contract for redundancy until 24 August 1999 and they point out that that was some 7 months later.[5]The Appellant in fact handed in his notice on 5 July and left on 9 July because he says that he was dismissed, before the due date for the ending of his employment for redundancy, and that the dismissal was due to the breach of the implied term of trust and confidence because of the 3 incidents of which he made complaint. The Respondents submitted that at the time the Appellant did not use the grievance procedure and that the 3 incidents were not significant. They described them as "the usual sort of badinage on the shop floor" and they submitted that the handing in of notice was purely voluntarily. For the Appellant these incidents were serious complaints and the third one was, although they are not his words as I understand it, "the last straw which broke the camel's back" and which led him to leave. The Appellant was a very experienced Trade Union official having been with the company for some 13 years. The 3 incidents were found to have occurred as follows: First was an altercation between the Appellant and Mr Altan the Factory Director who accused the Appellant of putting nails in the coffin of the company, of trying to destroy it by his interventions and bring it to an end. That was a particularly hurtful remark so far as the Appellant was concerned, because he had worked for many years with the company, it is a large plant and he was being accused of trying to have it shut down, where he had been the convenor for many years responsible for a large number of people, where he had worked hand in hand with management as a Union Convenor, that he had worked during his holiday times, at nights and had done nothing but the very opposite of what he was being accused. He says, and the Tribunal found, that he was so upset by the accusations that he went off sick. When he came back off sick, he was persuaded to stay by Mr Alton, we were told, who did apologise. The Appellant hoped that would be the end of it. The next matter occurred, which was that Mr Burgess the Senior Production Engineer was described as screaming and shouting at the Appellant and accusing him of being destructive at every opportunity and guilty of sabotage of machinery. That again, for the reasons that the first matter hurt the Appellant, hurt him afresh. The Tribunal found that the incident seemed to fizzle out and nothing came of it. The Appellant says that he complained and his complaints were ignored and the matter was not resolved. It was not that it fizzled out and he also says that insofar as the Employment Tribunal found that there was an apology for that incident, they were incorrect about it. The third incident involved a Mr Fields who accused the Appellant of trying to ingratiate himself with a married woman, and that suggestion was offensive to the Appellant and no doubt, he says, hurtful to the woman concerned. It is true that Mr Fields, who made this comment, apologised for it but by then the Appellant had already, on 5 July, handed in his notice because this incident was the culmination of the demonstration of the breach of trust and confidence which meant that he could not remain there any more. "In each and every case, he had an apology and there is no reason why the contractual relationship should not continue until 24 August when it was agreed that he would leave for redundancy purposes." They also rejected the complaint that the Appellant was dismissed for his trade union activities because there was no relationship between these incidents and those activities which, indeed, the Appellant himself regarded as personal.