FIRST WESTERN NATIONAL BUSES LTD v MR W CHALKER [2001] UKEAT 714_01_0810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 714_01_0810Case No Appeal No. EAT/714/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
FIRST WESTERN NATIONAL BUSES LTDAPPELLANTMR W CHALKERRESPONDENT
Before
Her Honour Judge A Wakefield Mrs J M Matthias Mr N D WillisDate 8 October 2001
[1]APPEARANCES For the Appellant Mr Woodhouse Solicitor Messrs Cartwrights Marsh House 11 Marsh Street Bristol BS99 7BB JUDGE A WAKEFIELD This is an ex parte preliminary hearing of an appeal by First Western National Buses against a reserved majority decision dated 1 May 2001 of an Employment Tribunal, sitting at Truro, by which it was found that the Applicant, the present Respondent, was unfairly dismissed by the Appellant, but that he had contributed to that dismissal to the extent of 50%.[2]The grounds of appeal are threefold. Firstly, it is said that the Tribunal failed to distinguish between a breach of contract simpliciter and a fundamental breach in their finding that the employee had been constructively dismissed. Secondly, that they failed to state, if such was their finding that the cause of the resignation of the Respondent was the failure which they had identified as a breach of contract, and thirdly that they failed to consider whether, even if there had been a dismissal, that dismissal was fair.[3]The Respondent, who had worked for the Appellant as a bus driver for about six years had resigned on 26 January 2001. The Originating Application claimed that he had been constructively dismissed and that the Appellants were in breach of contract. The then Respondents, the present Appellants, by their answer denied dismissal, constructive or otherwise, and did not seek to say that any dismissal was fair.[4]Dealing with the three grounds of appeal in turn. The first as to the alleged failure of the Employment Tribunal to distinguish between a fundamental or a repudiatory breach and any other kind of breach, we find that what they say in their Decision at paragraph 3, taken together with what the minority decision (which is expressed in paragraph 6) says clearly demonstrates that the Tribunal did direct its mind to the difference between a breach simpliciter and a fundamental breach. Just picking out a few points from those two paragraphs, the majority decision in paragraph 3 says that they find:
" the delay between 13 November, when Ms Chilcott went sick [she being the person dealing with the grievance procedure] and 26 January when the applicant resigned, during which absolutely nothing occurred in connection with the applicant's grievance procedure, amounts to a fundamental breach of contract."
Then the minority in dealing with that same point says, at paragraph 6:
"Each case turns on its own facts and whether the employer has committed a fundamental breach of contract is a question of degree. Although there may have been a breach of contract the minority finds that it was not a fundamental breach entitling the applicant to resign"
It therefore seems to us quite clear that the minds of the Tribunal members and of the majority were directed to the distinction and therefore in finding and using the word "fundamental breach" they have clearly accepted that the breach was repudiatory.[5]As to the causation issue we are satisfied that the sequence of events set out in paragraph 2, of the Decision, and especially what is referred to in sub-paragraph 20 of paragraph 2, is a clear finding that the failure to deal with the grievance was an effective cause of the Respondent leaving the employment. That sub-paragraph 20 says as follows:
"The applicant in his own words waited and waited and heard nothing and assumed that nothing was being done. He assumed that this had been deliberately put on the back burner or was not being given the proper degree of priority. His stress levels went up and eventually he consulted solicitors and resigned."
That is a clear finding in our view of causation.[6]The third point as to the question of the reason for the dismissal and fairness we accept has not been expressly addressed in the Decision. We are however satisfied that there was implicit in the Decision a clear finding that the employer, who throughout was asserting that there had never been a dismissal, had not shown nor had sought to show what was the reason for the dismissal, as is required under Section 98 of the Employment Rights Act 1996 . That being so, there was no requirement for the Tribunal specifically to address the question of fairness under sub-section 4 of Section 98 because that sub-section only requires fairness to be considered where the employer has fulfilled the requirement of sub-section 1, that is where he has shown what was the reason for dismissal. The employer had not done this here.[7]In all those circumstances, we are satisfied that on none of these three grounds can the appeal succeed and it is dismissed.