TURNER COULSTON (A FIRM) v MRS M E JANKO [2000] UKEAT 1394_99_1804

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 1394_99_1804

Case No Appeal No. EAT/1394/99 EAT/171/00 PA/486/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

TURNER COULSTON (A FIRM)APPELLANT

MRS M E JANKORESPONDENT

Before

Mr Justice Lindsay

Date 18 April 2000

[1]APPEARANCES For the Appellants MR TURNER (Solicitor) For the Respondent IN PERSON MR JUSTICE LINDSAY (PRESIDENT) : We have before us three matters that are related but so far we have heard argument upon only two of them. They all relate to an application made by Moya Emma Janko against her erstwhile employers, Turner Coulston, a firm of Solicitors. The first two matters, that we can deal with together, are appeals by Turner Coulston in that case. They are both merely at the preliminary hearing stage. Mrs Janko was a matrimonial legal executive working for Turner Coulston, the firm, and the first appeal before us concerns the IT1 that she lodged on 1 December 1998 claiming breach of contract and constructive dismissal. Box 10 in that form, indicating the outline of her case, said "Breach of contract and express terms and implied terms by unsafe working conditions".

[2]There was a four-day hearing at Bedford in July and September 1999 under the chairmanship of Mr Robjant. The decision was sent to the parties on 19 October 1999 and the unanimous decision of the Tribunal was that the Applicant was unfairly dismissed by the Respondents on or about 7 October 1998. The second paragraph made a provision for a remedies hearing, which we will come on to.

[3]It was a constructive dismissal case and the Tribunal held there to have been a breach of the implied term of trust and confidence. It is not clear from the decision whether they held any other term, express or implied, had been broken or anything in relation to unsafe working conditions.

[4]On 23 November 1999 there was a full Notice of Appeal from Turner Coulston. A great many of the points advanced in that Notice of Appeal and, indeed, advanced before us today by Mr Turner of that firm, consist of arguments on the lines that, given that the only evidence or the agreed and uncontested evidence on a given subject was such and such, then the Tribunal's decision on the point was perverse in the sense of not being a conclusion open to the Employment Tribunal.

[5]Another typical head of complaint in the Notice of Appeal is that the Tribunal's conclusion on this or that point failed to take into account such and such allegations in the evidence. Such arguments are extremely difficult to sustain on an Appellants' part and perversity, it has to be recognised, is an exceptionally difficult case to make. They are also, of course, allegations which are difficult for us to rule upon because we do not know what the evidence was on given points save so far as we can find that directly from the Tribunal's decision itself. We have found this case this morning far from easy and far from clear. But there are some allegations in the Notice of Appeal that are not quite of that difficult character, for example in paragraph 11 it says:

"The Tribunal erred in law in finding that the facts demonstrated that there were breaches of sufficient importance to justify the employee resigning or that there were a series of incidents so sufficient." ` And on page 8 of our bundle, at paragraph 14(c), it says: "

The Tribunal erred in law in finding that the conduct of the Appellants found to be unreasonable could, when taken together, amount to either a fundamental breach of contract or a breach of the implied term of trust and confidence."

[6]That formulation seems to refer back to a case called Brown v Merchant Ferries Limited

[1998] IRLR 682

, which had been cited to the Tribunal below, a case in the Northern Ireland Court of Appeal. Mr Turner had today, I fear, no real recollection of the citation of the case but it does arguably at any rate (and, of course, at this stage we are concerned only with what is arguable) raise a serious point and that is this; that the correct approach where one is complaining of constructive dismissal in the light of an alleged breach of the implied term of trust and confidence is not to ask whether the employer was reasonable or unreasonable but, much more rigorously, whether he was in breach of contract and also one has then to judge the impact of the alleged breach on the employee but that that is to be objectively regarded. It plainly does not suffice for an employee merely to throw his or her hands up in the air and say "That caused me to lose trust and confidence" if, objectively regarded, that conclusion would not have been reached.

[7]This is not an easy corner of the law because there is another line of cases that might arguably have some relevance, what one might call the "eggshell skull" line of cases, that a plaintiff has to take his or her defendant as he or she finds them. Of course here, it is the other way round in the sense that Mrs Janko is the Applicant, but there may be room for doubt as to how far the "eggshell skull" principle dovetails, if it does, with the Brown v Merchant Ferries line that the impact on the employee has to be objectively regarded.

[8]But perhaps the most important point emerging from Brown v Merchant Ferries is that ultimately the right question is this: viewed objectively, could the employee properly conclude that the employer was repudiating the contract? - see paragraphs 18 to 20 of that case. It is, in other words, very far from any breach that entitles an employee to say there has been a repudiation. There is no doubt that the Tribunal in our case knew of Brown v Merchant Ferries and knew about the need for an objective view of whether the employee could properly conclude that the employer was repudiating the contract. They say that quite clearly in their paragraph 9. By the time they get to paragraph 19 they say this:

"We conclude that the Respondents were in breach of the implied term of trust and confidence. This did go to the core of the employment contract."

[9]This is a point we have found difficult but arguable and, again, we emphasise that we are only concerned with what is reasonably arguable. The breach or breaches that the Tribunal had in mind in that first two lines of paragraph 19 are not fully identified and the question of whether they could, objectively regarded, be taken to have been a repudiation by the employer of the whole of the employment contract is arguably not clearly raised nor clearly answered. Merely to say that "This did go to the core of the employment contract" especially when one is not clear about what were the breach or breaches in mind, might arguably be said to be insufficient. So there is there an argument possible on a point of law.

[10]We would not wish it to be thought that we have been able to identify points of law in the repeated assertions of perversity in the Notice of Appeal and in Mr Turner's argument. But that is not to say that there is necessarily nothing in the points that there have been touched on and we think that the better course is to devise a process under which what the evidence was on this subject or that or was not can be better ascertained so that the full hearing could be properly informed on such subjects. Accordingly, we devise this as a course to be followed. When we mention time intervals they are to be taken to be running from two days after the sending out by the Employment Appeals Tribunal of the transcript of the judgment that we are now giving. Our proposal is as follows.

[11]First of all, the Appellants and the Respondent should within the next 28 days identify in writing which assertions, if any, in the Notice of Appeal, as to the nature of the evidence or the lack of it can be agreed and which cannot. The Appellants are to write on the subject, within the next seven days from the starting point we have mentioned, which I call "the transcript date", to the Respondent and the Respondent is then to have the next 14 days in which to answer and the Appellants are to reply to the Respondent in a final 7 days so that by the expiry of the total of the 28 days from the transcript date there will have emerged, one would hope, either agreement that the evidence was on this subject or that of such and such a character or that the subject cannot be agreed. If, in relation to any assertion in the Notice of Appeal as to the evidence, there has been no agreement within that 28 days, then either side may wish to request Chairman's Notes. They are first of all to write to the other side indicating which witnesses' evidence they would wish to have notes of or which subjects they would wish to have notes of, bearing in minding the Practice Direction on the subject which aims to limit the request for a Chairman's Notes as far as is practical. Obviously, if a subject has been agreed under the first series of correspondence that we have spoken of well then Chairman's Notes are unlikely to be necessary upon it, but there may be subjects which remain contentious and as to which one side or the other wishes to have the Chairman's Notes.

[12]If Chairman's Notes are to be requested, then in the first place the request should be in writing and to the President here, it to be coupled with the results of the earlier enquiries as to what was agreed or what was disagreed, which evidence is requested and so on. It is highly likely that by the time agreement on evidence or Chairman's Notes is available, the present Notice of Appeal will be seen to have been overlarge in some respects or possibly understated in others. I will expect the Notice of Appeal to be amplified or to be trimmed accordingly. If the Respondent wishes to argue, in the light of what has become clear as to the evidence, that certain points in the present Notice of Appeal disclose no arguable error of law in the light of the Chairman's Notes or of the agreement as to evidence which will by then have emerged, then the Respondent can either argue that at the full hearing or, alternatively, she can ask for there to be an oral inter partes directions hearing on that point.

[13]But, subject to the machinery for further investigation into the evidence which we have described, we leave the Notice of Appeal as it stands at the moment to go to a full hearing, although, as we have indicated, we shall expect it to be trimmed if further investigation indicates that passages of it are hopeless or if the Respondent, in argument, succeed in showing that. The category for the full hearing is Category A. It should take half a day and skeleton arguments should be exchanged between the parties and sent to the EAT not less than 14 days before the hearing. So much for the first appeal.

[14]The second appeal is as to remedy. The decision was sent to the parties on 23 December 1999. Again, the nature of the argument in many respects raises issues as to what the evidence was or what the evidence was not, whether it was agreed and so on, in much the same way as it had done in the liabilities appeal. Again the matter is far from easy but there is, in our view, just enough to say that there is an arguable point of law. It is that despite its expressing a view that the Respondents' behaviour was not solely responsible for Mrs Janko's state of psychiatric health, the Tribunal's computation of loss arguably at least reflects a view that her inability to work in the legal profession was wholly the Respondents' fault. There is there just a glimmer of an arguable point of law, but, just as we prescribed in the liabilities case for a process under which the questions as to the evidence were refined and Chairman's Notes were limited and so on, we will prescribe exactly the same process and timetable, mutatis mutandis , in the remedies hearing as we prescribed in the liabilities hearing. The remedies hearing also is to go to a full hearing on an estimate of half a day, not half a day additional to the other half day but in the expectation that both together will take only the half a day and, of course, as the two are to come on together, Category A

[15]We said that there were three matters. Mrs Janko is present this morning and she wishes to raise a third matter. In the light of what we are about to say, it does not seem necessary to call upon her but on 15 April, that is to say very recently, she indicated a wish to cross-appeal on the remedies decision, so far as concerned the impact of Recoupment Regulations. Her case is that incapacity benefit which, she says, is the relevant benefit to consider, does not fall within the Recoupment Regulations. We extend time for service of a Notice of Appeal or Cross-Appeal, whatever would be appropriate on Mrs Janko's part, to 16 April. On that basis that validates the Notice of Appeal which she has already sent in. There is, as it seems to us, here an arguable point of law. On a pro forma preliminary hearing of the Notice of Appeal, which we just validated, we direct that it too should go to a full hearing with the other two to be heard at the same time. We have not heard Mrs Janko on this at all. If she wishes to add something on this third point she is at liberty to do so. Since we have given her all that she asked for, it may be that she has nothing further to say.