MR V D BECKFORD v THE SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENT [2002] UKEAT 1071_01_0602

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1071_01_0602

Case No Appeal No. EAT/1071/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR V D BECKFORDAPPELLANT

THE SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENTRESPONDENT

Before

Mr Justice Lindsay

Lord Gladwin of Clee

Date 6 February 2002

[1]APPEARANCES For the Appellant MR P EPSTEIN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us, as a preliminary hearing, the appeal of Mr V D Beckford in the matter Beckford -v- The Secretary of State for Education and Employment . It is on appeal from London South and concerns unfair dismissal. This morning Mr Beckford has been represented by Mr Epstein, under the ELAAS scheme, and we are very grateful to him, as also should be Mr Beckford, for the care with which he has approached the task.

[2]The history of the matter is that on 16 March 2000 Mr Beckford lodged an IT1 for unfair dismissal. He said that he had been employed from November 1997 to March 2000. His IT1 can perhaps be best summarised by quoting paragraph 17 of it, on our page 16:

"The way I have been treated has been so appalling that I consider myself to have been effectively dismissed. In particular I have been subjected to capricious and arbitrary treatment, there has been a break down in trust and confidence and my employers have not taken reasonable care to safeguard my health and safety. I consider these to be fundamental breaches of the implied terms of my contract."

[3]The form of unfair dismissal that he was claiming was constructive dismissal. On 13 April the employers put in an IT3. They said that there was no fundamental breach of contract and that he had resigned because he knew that disciplinary sanctions loomed. He had, indeed, they said, contributed to his own dismissal.

[4]There was then a two day hearing on 6 and 7 March 2001, later followed by some consideration of the matter by the Tribunal in Chambers, and on 5 July 2001, the Decision, which was of a Tribunal under the Chairmanship of Mr C P Baron at London South, was unanimous and it was that the application should be dismissed. On 9 August 2001, there was a letter from Mr Beckford to the Employment Appeal Tribunal and then, on 6 September, another one and together, in effect, they were treated as being a Notice of Appeal. Mr Beckford, at that point, did not have professional help so far as one can see.

[5]Mr Beckford's IT1, as we mentioned, was for unfair dismissal of the constructive dismissal variety. Although he mentioned his failure to be supplied with contract particulars in the letters treated as a Notice of Appeal that, earlier, had not been framed as a separate head of complaint such as to lead to relief under section 11 of the Employment Rights Act 1996. So far as one could tell from the way it was put in the original complaint and at the hearing, it was relied on as simply one of the factors leading to an alleged breakdown in trust and confidence.

[6]In any event, as a matter of fact, it was denied. The Secretary of State for Education and Employment had said at 7.1 of their Notice of Appearance as follows:

"The Applicant was employed by the Respondent as an Administrative Officer on a PB8 grade. He worked in several of the Respondent's JobCentres. His terms and conditions were set out in the Respondent's Staff Handbook The ES and You, Your Rights and Responsibilities. All staff are sent, with their contract of employment, a copy of a booklet, The ES and You - A Guide to Working in the ES. This booklet summarises these terms and conditions and draws the attention of staff to the ES & You, Your Rights and Responsibilities. In addition, members of staff have daily access to this handbook through the Respondent's computer system. The Applicant was aware of the terms set out in the Staff Handbook and indeed referred to its terms on correspondence with the Respondent. He also made use of its procedures including its grievance and harassment policies."

[7]There had been a prehearing discussion at the Employment Tribunal on 17 June 2000 and the issues in the case were then gone through; they were identified. Mr Beckford was, on that occasion, represented by a solicitor, and the issues were identified as follows:

"The Applicant makes a complaint of constructive unfair dismissal. 2 The Applicant alleges that he resigned in response to breaches of contract leading to a breakdown in trust and confidence. In particular: (i) failure by the Respondent to deal with the Applicant's grievance of 1 July 1999 (ii) harassment/bullying by the Applicant's line manager. (iii) failure by the Respondent to deal with the Applicant's application for a transfer. 3 The Respondent denies that the Applicant was dismissed. The Respondent says that the Applicant resigned rather than face disciplinary proceedings and therefore there was no dismissal. 4 The Respondent raises no other grounds of resistance to the complaint and therefore if the Applicant was constructively dismissed it is unfair dismissal."

So relief under Section 11 was not claimed. At the most the failure to give the necessary information could thus only be a factor towards constructive dismissal. A supply or non supply of contractual particulars was not identified as an issue before the Tribunal hearing.

[8]There was opportunity to correct the Chairman's indication of what the issues were so that, had there been some view on the Applicant's side that the issues, as framed, contained some omission, that could have been corrected. As I mentioned, Mr Beckford was at the time represented by a solicitor, but no such opportunity seems to have been taken.

[9]So it was with the issues framed in that way that the case went to the Employment Tribunal and in the course of their Decision the Employment Tribunal set out the issues in exactly the same way, I think even word for word, and Mr Beckford was, at the hearing below, represented again by a solicitor and Mr Owen, who was that solicitor, submitted that the Respondent was in breach of three implied terms of the contract.

[10]The second of the three was as follows:

" Secondly, there had been a breakdown in the obligation to maintain mutual trust and confidence. There had not been an induction procedure, there was no training given, and he was not issued with any written contract of employment. His application for a transfer to Croydon had been neglected for nine months. His pay had been miscalculated."

It is not clear whether evidence was in fact given on the point of whether contractual particulars had been supplied or not. Still less is it clear whether, even if Mr Beckford had said that in evidence, he would have been believed, because, unfortunately for him, a poor view was taken of his credibility. The Tribunal said, in their paragraph 6:

"We find that the evidence of the Applicant was not reliable."

And a little later, they said:

"Where there is a conflict of evidence we prefer the evidence of the Respondent."

The Employment Tribunal noted that Mr Owen's formulations of what was complained of, in point of contractual breach, went outside the issues previously agreed . There is certainly no hint of any application that the IT1 should have been asked to be amended to contain a claim under section 11.

[11]Breach of section 11 thus remained, if in play at all, as an obligation on the employer's part said to have been broken by the employer and, as such, relied on by the employee as one item amongst a number which were said to be breaches which, cumulatively, were said to have justified his accepting the contract as repudiated by breach. But the claim for constructive dismissal failed for a totally different reason.

[12]The Employment Tribunal held that Mr Beckford did not resign because of a reaction to cumulative breaches by the employer but because of an incident on 17 January 2000 at the Croydon JobCentre, which arose because Mr Beckford had a partner, Ms Whyms. Although off sick at the time he accompanied her to an office of the Respondent on 17 January and, of that incident, the Tribunal said this:

"There was an incident on 17 January 2000. Briefly, Ms Whyms had been declined JobSeeker's Allowance by the Respondent in accordance with normal rules She visited the Croydon JobCentre and swore and was verbally abusive to staff and threw a calculator. The Applicant was off sick at the time, but went with Ms Whyms to the JobCentre. He joined in and was also abusive to the staff. The police were called. The relevant reports are at …"

And there is a reference to some documents which are not in fact before us.

[13]That had led to an argument on the Respondent's part below, as follows:

"Ms Maney, for the Respondent, reminded us that the Applicant must prove a fundamental breach of contract. She submitted that the evidence of the Applicant was unreliable, and had been changed to suit the circumstances. She also submitted that we should find that the reason that the Applicant had resigned was because the incident of 17 January 2000 was bound to become the subject of disciplinary proceedings."

And that submission and view of the facts was accepted, because at paragraph 40, the Tribunal say this:

"However, quite irrespective of the points made above"

[14]Just pausing there, we will come back to "some of the points made above"…... "…..quite irrespective of the points made above, we find that the Applicant fails because we find as a fact that the reason for his resignation of the Applicant, was related to the incident of 17 January 2000, at the Croydon JobCentre. We note that he was told at the meeting on 21 January with Ms Cannon that she was aware of the incident, and that he became annoyed. We consider that the Applicant must have known that he would be the subject of disciplinary proceedings. The time lag between the raising of the other issues by the Applicant in July 1999, and the relative speed with which he resigned after the January 2000 incident leads us to infer that the resignation was connected to that incident." So, putting it the vernacular, Mr Beckford jumped before he feared he would be pushed and thus the only function, if there was any, of the complaint about a failure to supply contract particulars, as part of Mr Beckford's case, failed not because it was held not to be a breach on the employer's part but because, whether it was or not, it became irrelevant because Mr Beckford had not resigned on account of the employer's breaches. Why we have dealt with this point at some length is that it is the only point identifiable as a conceivable error of law in Mr Beckford's two long letters which have been taken as the Notice of Appeal. That point, as we see it, gives rise to no arguable error of law.

[15]Mr Epstein has carefully taken us through some other passages, in particular, paragraphs 37, 38 and 39, hoping to show that there is at least arguable error of law in relation to the Tribunal's handling of the matters dealt with in those passages, matters such as complaint about a failure to train adequately to do the job - a continuing kind of complaint, or a continuing kind of failure - and complaints about transfer. Unfortunately, from Mr Beckford's point of view, we do not see how that avails Mr Beckford, because as the beginning words of paragraph 40 indicated:

"However, quite irrespective of the points made above"

[16]The Tribunal were saying, in effect, whether their view was right or wrong about failure to deal adequately with, for example, transfer or training, nonetheless it was not that that caused the resignation by the Applicant but, instead, it was the incident of 17 January 2000 and the perception of what that would lead to. So it does not avail Mr Beckford to look in detail at those earlier paragraphs because, ultimately, whether they were right or wrong, it was not that that caused the resignation.

[17]Mr Epstein also complains that it is arguable that there was no adequate basis in fact for the inference that Mr Beckford did know, or as the Tribunal put it, must have known, that he would be the subject of disciplinary proceedings arising out of the Croydon JobCentre incident. But we have no material whatsoever for forming a view even that that is arguable, namely that there was inadequate evidence to justify the inference which the Tribunal has drawn. Again, it has to be remembered that Mr Beckford was taken to be an unreliable witness, and so a mere assertion on his part (had there been one, which we know not) that he did not have that knowledge might well not have sufficed.

[18]Accordingly, having examined not only the original grounds in the Notice of Appeal, or in the letters treated as a Notice of Appeal, but also the further grounds in Mr Epstein's skilful argument, nonetheless, we see no arguable error of law on the Tribunal's part and, accordingly, dismiss the appeal even at this preliminary stage.