MR P LANDMAN v EXEL MANAGEMENT SERVICES LTD [2002] UKEAT 1277_01_1005

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1277_01_1005Case No Appeal No. EAT/1277/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P LANDMANAPPELLANTEXEL MANAGEMENT SERVICES LTDRESPONDENT
Before
Mr Justice Wall Mr J HoughamDate 10 May 2002
[1]APPEARANCES For the Appellant MR PAUL LANDMAN (the Appellant in person) THE HONOURABLE MR JUSTICE WALL This is the Preliminary Hearing of an appeal by Mr Landman against the decision of the Employment Tribunal sitting at London Central on 16 July 2001, with full reasons promulgated on 13 September 2001. The decision of the Tribunal, which was unanimous, was that Mr Landman had resigned from his employment with Exel Management Services Limited, the Respondent in the Tribunal below, and that as a consequence his claim for constructive dismissal failed, as did his claim for wrongful dismissal. The Tribunal made no order as to costs.[2]The relevant facts which we will deal with quite shortly are that Mr Landman was employed by the Respondent who had a contract to provide patient transport services to St Mary's Hospital Trust in Paddington. Mr Landman's contract of employment, with which I will deal in a little more detail later, was set out by the Tribunal in its reasons. What precipitated the hearing before the Tribunal was an incident on 23 November 2000 when an incident occurred during the course of which it would seem that Mr Landman did not secure the wheelchair of a patient in a vehicle that he was driving with the result that the patient in question was thrown backwards and hit her head. That resulted in a disciplinary process being instigated by the Respondent. During the course of that investigation Mr Landman delivered a resignation letter which was in these terms:
"It is with regret; I hereby inform you that I wish to offer my immediate resignation from Exel as ambulance driver. I feel that I am unable to continue with my employment safely due to the requirement of continual excessive hours under a consistent and heavy workload with the absence of reasonable set breaks. I have previously raised this issue with you, but the work situation did not improve. Alternatively if you prefer, I can give you two weeks notice of my resignation from the date of this letter in accordance with the requirement of our contract of employment."
There was an issue in the Tribunal as to precisely why Mr Landman had resigned, since the Respondent's representative who spoke with Mr Landman on 5 December (the day after the letter) told the Tribunal that Mr Landman had confirmed that the reason for his resignation was that he had already had one disciplinary hearing found against him and he felt it was time to move on.[3]In any event, the Tribunal had to consider the claim for constructive unfair dismissal. The way it went about it seems to us entirely correct. It cited Section 95(1)(c) of the Employment Rights Act which sets out the basis upon which constructive dismissal can be claimed. It then dealt with the case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 CA. It pointed out that Mr Landman had to show, firstly, that there was a breach of his contract of employment; secondly, that the breach was fundamental, going to the root of the contract and entitling him to treat it as repudiated; thirdly, that he must act on the breach and fourthly he must act and must do so without delay.[4]The first issue the Tribunal considered was the question of the breach of contract alleged by Mr Landman against the Respondent. The Tribunal identified 3 limbs to that allegation. The first being an allegation that the contract exceeded the maximum 48 hours working week. Secondly, an implied duty to take reasonable care for Mr Landman's safety. Thirdly, an implied duty of mutual trust and confidence. The terms of the contract, to which I referred earlier, were summarised by the Tribunal in these terms; clause 6 states:
"The basic hours of duty, excluding meal intervals, will be worked out as follows: Amount days per year less amount of weekend days per year, multiplying the remainder days by nine hours. Any employees starting during the year a similar calculation will be used as above, days left in the year less the amount of weekend days."
The Tribunal found that Mr Landman did not work 45 hours per week between February and October but he was paid for 45 hours per week.[5]Dealing with that contractual term, this is what the Tribunal said at paragraphs 20 to 23:
"20 We first considered Mr Landman's claim that there was a breach of contract in that he was required to exceed the maximum of 48 hours per week. His contract of employment, dated 23 February 2000, stated at clause 6 …. [which I have already cited] 21 Mr Landman's claim is that the number of hours he worked exceeded the maximum under Regulation 4 of the Working Time Regulations 1998. However, Regulation 18 of the Working Time Regulations sets out excluded sectors, which at Regulation 18(a)(i) includes "air, rail, road, sea, inland waterway and lake transport". 22 Mr Landman was employed as an ambulance driver. The sector of activity in which he was operating was road transport and the Working Time Regulations do not apply. The terms of his contract of employment provide for annualised hours and we had at p95 and p96 of the bundle details of the hours worked which reflected this. 23 For these reasons, there is no breach of a term of Mr Landman's contract of employment that his employment should not exceed 48 hours per week."
We have been shown today, apart from the contract itself, in a bundle produced by Mr Landman, a letter from Mr Strevens, the Patient Transport Services Manager of Exel, dated 23 February 2000, which says:
"Dear Paul As discussed on the 17 February 2000, I would like to calm your apprehension towards the new contract of employment. This contract is based on your old contract of 45 hours per week, but has been calculated for the year. Your fears of the company making you work excessive hours day after day have no foundation. The company will try to balance your hours from week to week, along the lines of 45 hours per week depending on the needs of the business. We will not expect any employee to work excessive long hours on any day without their consultation. In short Paul we will still ask drivers to "stay on" if the need of the business so require it. I hope this will clear up any doubt you might still have, this letter will be attached to your new contract of employment."
[6]It may be, although the reasons of the Tribunal do not suggest it, that there was a misunderstanding and that Mr Landman was simply using the Working Time Regulations as a comparator, but whatever the factual position, we are quite clear that the Tribunal was entirely entitled to find, on the material it had before it, that there was no breach of the contract by the employer and certainly no fundamental breach entitling Mr Landman to repudiate the contract. The Tribunal not only refers to the documentation and to what Mr Landman told them but it also, of course, refers to the Working Time Regulations and evidence produced by the Respondent of the hours which Mr Landman actually worked. In these circumstances it seems to us there is no factual or legal basis for the complaint that the Tribunal misdirected itself in law when dealing with the question of Mr Landman's contract.[7]Mr Landman also criticised the Tribunal, before us this morning, for failing properly to apply Western Excavating (ECC) Ltd v Sharp to the facts of his particular case. In our view the analysis which the Tribunal conducted with some care over a number of pages, looking at the suggestions that there was a fundamental breach entitling Mr Landman to repudiate, demonstrates that they did not, in our view, fall into any error.[8]Mr Landman, also this morning raised, with us a number of complaints which he had about the Tribunal and the conduct of the Tribunal, particularly by the Chair. Notably, that he felt he was rushed, that he was given documents with only a very limited amount of time to read them, and that due to his lack of experience he was put at a disadvantage before the Tribunal. As we pointed out to Mr Landman this morning when he made those allegations, we feel that had they had any validity or strength to them, they should, and would, have formed a substantial part of the Notice of Appeal. There has been no opportunity to put them to the Chair of the Tribunal. They are, in any event, substantially out of time, as would be any application to amend the Notice of Appeal. Therefore we cannot possibly take them into account.[9]We are of the view, having looked carefully at the Tribunal's decision, that it covered the ground carefully and that its factual findings are unimpeachable. It seems to us also that it applied the law appropriately to those facts. In those circumstances we feel there is no arguable point of law to go forward to the full Tribunal. It follows that the appeal must be dismissed at this stage.