MRS D QUIRK v (1) D P HARDY & CO (2) PROFESSIONAL EXECUTORS LTD [2002] UKEAT 1086_01_0503

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1086_01_0503Case No Appeal No. EAT/1086/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS D QUIRKAPPELLANT(1) D P HARDY & CO (2) PROFESSIONAL EXECUTORS LTDRESPONDENT
Before
Lord Davies of CoityDate 5 March 2002
[1]APPEARANCES For the Appellant MR STEPHEN PINDER Messrs Edwards Abrams Doherty Solicitors 125/131 Picton Road Liverpool L15 4LG MR COMMISSIONER HOWELL QC: In this appeal which is before us today for preliminary hearing, Mrs Dot Quirk seeks to have set aside as erroneous in law the decision of the Liverpool Employment Tribunal, on her claim for unfair dismissal and other relief against D.P. Hardy & Co, a firm of solicitors for whom she worked as a welfare rights adviser for some five and a half years, between November 1994 and July 2000.[2]There was a Second Respondent to the proceedings before the Tribunal, a company called Professional Executors Ltd, but it is common ground that that was a company owned and controlled by Mr Hardy who was the sole practitioner in the firm of D.P.Hardy & Co, and that nothing material turns on the difference between the two for the purposes with which we are concerned.[3]The proceedings brought by Mrs Quirk alleged that she had been unfairly dismissed in circumstances where she had resigned from her employment on 19 July 2000, by reason of a repudiatory breach on the part of Mr Hardy of her contract of employment such as to amount to an unfair constructive dismissal of her. What led up to her resignation, by letter on 19 July, is explained in the Tribunal's findings of fact. These are set out in detail in several sub-paragraphs of paragraph 8 of their Extended Reasons sent to the parties on 3 August 2001 following a hearing spread over a total of three days between March and May 2001, at which evidence was given by Mrs Quirk and numerous other witnesses. In particular, as appears from the Tribunal's findings, Mrs Quirk had been employed as a welfare rights adviser at the firm's then office in Dale Street, Liverpool until she resigned. The work which she undertook on behalf of the firm was advice to welfare benefits claimants and other people, under what was known as the Green Form Scheme for solicitors. Mrs Quirk was a paid employee of the firm, not being a qualified solicitor herself but experienced in this type of work.[4]As from January 2000, under the new arrangements for legally aided work, Mr Hardy's firm lost its franchise for Green Form advice for this type of work. Consequently, it was not possible for work to be done by Mrs Quirk for clients of the firm under that scheme. She did however, have quite a number of on-going matters and existing clients whose needs needed to be dealt with.[5]Discussions took place over an extended period as to whether Mrs Quirk could remain with the firm, in the altered circumstances that it was not possible to obtain payment for her services under the Legal Aid Scheme. As recorded by the Tribunal this began with a letter of 6 April 2000 from Mr Hardy to Mrs Quirk, saying that in effect Mrs Quirk was potentially redundant as a result of the change that had happened but he, as the Tribunal specifically recorded in paragraph 8(b) of their Extended Reasons, had at that stage made no decision to dismiss Mrs Quirk or to make her redundant and there was no specified intention to break her contract of employment.[6]There then followed a series of meetings at which various suggestions were put forward as to how welfare rights work could continue to be done by the firm and Mrs Quirk could continue in its employment. These were inconclusive and by 21 June according to the Tribunal's findings Mr Hardy was expressing doubts about whether he would be able to maintain a welfare rights department at all.[7]A Mr Farrell, who by that stage was assisting Mrs Quirk in the negotiations, tried to progress matters by saying that if Mr Hardy did not accept their proposals and had no alternative to put up, then Mrs Quirk should be made redundant.[8]A further meeting took place on 23 June, when Mr Hardy said he still had not made up his mind but would see them on 26 June, although when they called on that date Mr Hardy was not in. At that point Mrs Quirk went on holiday but Mr Farrell saw Mr Hardy on 29 June, when he said he still had not made up his mind whether or not to make Mrs Quirk redundant but would write to her before the date of her return from holiday on 17 July confirming his decision.[9]Mrs Quirk rang Mr Hardy from her holiday and he said that she should return to Dale Street after her holiday and that a letter would be sent.

(d) of their Extended Reasons as follows:

"Mrs Quirk returned from Tenerife on 17 July. She found that part of the office which did work other than benefit work had been vacated, although the name of D.P. Hardy was still outside. Clients still arrived for benefit advice and the phones and electricity were still on, but there was no stationery or typing facility and there was no photocopier. Mrs Quirk had to buy her own stamps and go to a nearby shop to use its photocopying facilities. She wrote to approximately 170 clients telling them to contact Walton Breck Road [that being the address of the office to which Mr Hardy was relocating] and took the files up to that office and decided that she could not carry on but should resign. She wrote to Mr Hardy, complaining that he had not written to her as promised to clarify her employment position and because of his action she could not do her job properly. She said that she had no option other than to resign 'as and from today' (19 July 2000)."
[10]The Tribunal then recorded submissions made by the representatives for both sides on the detailed evidence heard by the Tribunal, including submissions on behalf of Mrs Quirk by Mr Pinder, who appeared for her at the Tribunal and has also appeared on her behalf before us on the appeal hearing today. Mr Pinder's submission, as recorded, was that Mrs Quirk's complaints reflected the evidence given by her and Mr Hardy. She had been concerned after eleven weeks of inconclusive discussions and had been seeing clients without back-up and was concerned about her relationship with them. Mr Hardy had never written in response to dispute what she said. Mr Pinder founded on the submission that what had happened involved a breach of trust and confidence as between employer and employee. This was not simply a case of the possibility of redundancy, it was a case where it was a matter of trust and confidence and Mrs Quirk had been justified in her resignation because of the way she had been treated. In particular, he referred the Tribunal to the fact that no arrangements had been made to supervise Mrs Quirk's work at Dale Street after her return from holiday. No assistance had been offered to her, she was left on her own, and no concern was shown for her as an employee. Despite six meetings in eleven weeks Mr Hardy had even failed to deliver on a promise to make a decision on her return from holiday. Finally, he submitted that the failure to write to her at all on her return from holiday had been "the straw that broke the camel's back" and justifying her immediate resignation.[11]The Tribunal's decision was to reject the claim and find that there had been no act of dismissal on the part of Mr Hardy or his firm at all, because all that had been indicated to Mrs Quirk by Mr Hardy was that her job would be coming to an end at some time in the future. There was no evidence before the Tribunal that Mr Hardy evinced an intention to do other than abide by the contract, while it remained in force, and there was nothing to suggest that he had intended to terminate the contract without proper notice in accordance with the agreed terms.[12]The Tribunal's reasons for rejecting the allegation of constructive dismissal on the basis of a total breakdown of trust and confidence were expressed shortly in the last two paragraphs of their Decision as follows:
"We then turned to the question of whether [there] was a breach of the term of trust and confidence. We do not think that the state of the Dale Street office entitled Mrs Quirk to resign without notice – we think that she made up her mind to go too quickly. Nor do we think that this was the last straw, taken with Mr Hardy's inability to make up his mind. In any event the period of consultation was not excessive. Our unanimous decision is therefore that there was no dismissal in this case and no redundancy. Mrs Quirk resigned without there being a fundamental breach of her contract of employment and her application to the Tribunal on these grounds should be dismissed."
[13]Against that decision Mrs Quirk appeals on the grounds set out on her behalf by Mr Pinder in the Notice of Appeal dated 7 September 2001 and his helpful Skeleton Argument, and developed by him in oral argument before us. As summarised in his oral argument, the issues he seeks to pursue on this appeal really come down to two arguments. First, the Tribunal's conclusion that there had been no constructive dismissal in the circumstances of this case was a perverse one. It was unreasonable on the part of the Tribunal not to hold that there had been a fundamental breakdown of trust and confidence and, therefore, a fundamental breach of contract by the employer in the circumstances as they stood on 19 July 2000. In particular, Mr Pinder refers to the course of events and the final straw of the failure even to respond to Mrs Quirk with a definite decision by the time she returned from holiday, leaving her to return to find Dale Street office in the unsatisfactory state it was. Secondly, Mr Pinder submits, that whether or not that be so, the conclusions expressed by the Tribunal in the paragraphs of their decision to which we have referred are, in any event, an inadequate decision on these issues. They do not enable the Appellant or, indeed, any reasonable reader to be satisfied that the material issues on the trust and confidence points have been properly addressed by the Tribunal in reaching their decision. He developed those arguments by pointing our attention to the lack of any express mention in the final paragraphs of the Decision to the failure to meet the promise to have a letter waiting for Mrs Quirk giving a decision when she returned from her holiday; and the points he had taken before the Tribunal and repeated before us that Mrs Quirk was entitled to the supervision of a solicitor when working in and meeting clients in an office bearing the name of a solicitor even though she herself was giving only welfare rights advice. Moreover, she had had to deal with other clients coming in to the office without any administrative support and, as recorded in paragraph 8(c) of the Tribunal's Extended Reasons, there was a prolonged history of dilatory conduct on the part of Mr Hardy on which the evidence of Mr Farrell and Mrs Quirk had been wholly, if not entirely, accepted by the Tribunal.[14]All that Mr Pinder submitted, should have been taken into account by the Tribunal; in particular the final failure to meet the promise to give a decision and it was not possible to see from paragraph 10 of the Tribunal's Extended Reasons that these matters had been adequately addressed.[15]Having considered all the arguments that Mr Pinder advanced before us in writing and orally, we have not been satisfied that either of those two grounds provides a sufficiently arguable issue of law to warrant our directing that this case should go forward to a full hearing, inter partes, before the Employment Appeal Tribunal.[16]On the first argument we have not been satisfied that the Tribunal's conclusion, that rejecting a constructive dismissal and holding that resignation was not the only practicable option open to Mrs Quirk in the circumstances of 19 July, was itself a perverse and unreasonable conclusion.[17]In our judgment it was plainly open to the Employment Tribunal to conclude, on the evidence it recorded, that the circumstances facing Mrs Quirk on 19 July did not justify an employee resigning immediately without exploring other possibilities, and did not justify her in treating the contract as repudiated by a fundamental breach on the part of the employer such as to give rise to a constructive dismissal. In our judgment it was open to the Employment Tribunal to reach the conclusion they did on the facts and evidence before them.[18]We remind ourselves that the question for us is not what conclusion we would have reached on the evidence. It may be that there is room for the view that Mrs Quirk justifiably felt herself to have been messed around over a prolonged period of time by the way Mr Hardy had conducted himself, but the issue is whether any reasonable Tribunal could have reached the conclusion this Tribunal did. In our judgment their conclusion was within the area of what it was proper for a Tribunal to reach.[19]Secondly, we have not been satisfied either that the stated reasons given by the Tribunal in paragraph 10 of the Extended Reasons were inadequately expressed, so as to leave any real doubt that the material issues were, indeed, properly addressed by the Tribunal. Paragraph 10 is admittedly expressed fairly shortly but that must, in our judgment, be read in the context of and in conjunction with the detailed findings of fact recorded by the Tribunal on the evidence, in paragraph 8 which extends over several sub-paragraphs.[20]As Mr Pinder rightly points out, the issues of primary fact recorded there, as to the course of events and the dilatory attitude of Mr Hardy over an extended period from April to June and July 2000, were largely, if not entirely, decided in favour of the Applicant by accepting the evidence that the Applicant and Mr Farrell presented to the Tribunal. That being so, Mr Pinder said it was surprising and inconsistent that the Tribunal's actual conclusion at the end of the day should be found to go against the contentions he had put forward on her behalf. However in our judgment it is a question of fact and degree for the judgment of the Tribunal hearing the case whether, on such facts as were found to have existed here, the conduct of the employer at any particular stage of a history extending over several months, has or has not amounted to such a fundamental breach of the terms of the employee's contract (in particular the implied term as to trust and confidence) as to justify the employee treating the contract as at an end. Paragraph 10 is, as we have said, shortly expressed but it does appear to us to address the two crucial issues in this case which were (first) whether the particular circumstances facing Mrs Quirk when she returned from holiday on 17 July and found the Dale Street office in the state it was, by themselves amounted to a fundamental repudiation of her terms of contract; and (second) whether that and the failure to give her an adequate response over such a prolonged period of time amounted to what was referred to as "the last straw" justifying the employee treating the whole pattern of the employer's behaviour as repudiatory by that stage. In our judgment those two issues, which were the deciding issues in the case, were clearly and in the circumstances adequately addressed by the Tribunal in paragraph 10 of their decision (as appears to us clear on a reasonable reading of that paragraph in conjunction with the earlier paragraphs of the Tribunal's decision); and those two issues have been decided against the Applicant.[21]That being so, it appears to us that the issues on this appeal fall within the general principle that it is not for the Appeal Tribunal to interfere with the judgment of the Employment Tribunal on such questions of fact and degree. We have not therefore been able to see that there is a sufficiently arguable error of law in this Tribunal's decision to warrant our directing that the appeal should go forward for further hearing. In those circumstances we therefore unanimously dismiss this appeal. TRICIA Mr Commissioner Howell QC did the amendments (on disk). I checked the amendments with the yellow draft. There are only two differences (that I can see). In para 16 he added "that" and in para 20 he's changed "secondly" to "second". Iris 29/4/02