MS H E DAVID v INTERNATIONAL MARKETING & PROMOTIONS LTD [2002] UKEAT 1295_01_1505

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1295_01_1505Case No Appeal No. EAT/1295/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS H E DAVIDAPPELLANTINTERNATIONAL MARKETING & PROMOTIONS LTDRESPONDENT
Before
Mr Justice WallSir Gavin LairdDate 15 May 2002
[1]APPEARANCES For the Appellant MR MARC JONES Solicitor Messrs Underwoods Solicitors 83/85 Marlowes Hemel Hempstead Hertfordshire HP1 1LF For the Respondent MS DAPHNE ROMNEY (of Counsel) Instructed by: Messrs Beachcroft Wansboroughs Solicitors 100 Fetter Lane London EC4A 1BN MR JUSTICE WALL This is an appeal by Ms Helen Elizabeth David against the Decision of the Employment Tribunal held at London South, on two days, 30 and 31 May and then in Chambers on 31 August with the Decision being promulgated on 15 September of last year. It was the unanimous Decision of the Tribunal that Ms David was not unfairly dismissed by International Marketing Promotions Ltd, her former employer, and that the Respondent employer was not in breach of the Applicant's contract of employment.[2]In her form IT1, Ms David had listed a series of complaints as to the way she said she had been treated since 1990, when she joined the Respondent Company, and she also relied on what she described as matters coming to a head on 21 January 2000, when Mr Atkinson, her line manager, she said, had called her into his office and informed her that she had two choices, either resign and keep her reputation, or that he would have to dismiss her, in which case the matter would get what he described as "very personal". She says she was astounded by that threat. Mr Atkinson, she said, made it clear that she had no future with the Respondent, despite the fact, she said, that she had not received any previous warnings and there were no grounds for dismissing her.[3]According to her form IT1, she said she wanted someone to witness what had been said, and asked for someone else to be present. Mr Atkinson arranged for Mr Perkins, the Personnel Director to attend. Ms David said she was unhappy about that because she did not think he would be impartial. Mr Perkins informed her that he would have to investigate the matter, and said it would be better if she left while the investigation was carried out.[4]The Appellant put it to them, she said, that she had been given two choices: either resign or be dismissed, to which they did not reply. She says that after years of unfair treatment, this was the last straw and it was clear to her that she had no future with the Respondent. She went home and saw her GP. He confirmed she was unable to work. She then spoke to Mr Perkins who confirmed that he wanted to speak to her, and told her that she had not been dismissed but would be receiving a final warning. She said that she was astounded by that. No grounds were mentioned, there was no disciplinary process and accordingly, she considered her position and resigned. The letter of resignation is dated 15 February 2000. She also asserted that she had not been provided with any previous written or oral warnings before 21 January 2000. Her case was that her employer's treatment of her amounted to a repudiatory breach of its duty and trust and confidence towards her and, accordingly, she wished to claim constructive and unfair dismissal and breach of contract.[5]The Respondent put in a detailed response to the Form IT1 which I will not read because of what occurred. The nature of that defence will become clear as we go through the facts.[6]The Respondent is an advertising agency and Ms David had been employed as an Art Buyer and thereafter a Senior Art Buyer from February 1990 until she resigned. The Tribunal began, after its recitation of the evidence that it had heard, and the statements that it had read, to list the allegations which Ms David made, and then to summarise the nature of the incident on 21 January which led to Ms David's resignation.[7]It then recorded how the case was being put on her behalf by Mr Jones who appeared before the Tribunal, and also appeared today before us. He submitted that the giving of the "resign or be dismissed" ultimatum by the Respondent was an actual dismissal of Ms David. Alternatively, he submitted that her employer was in breach of the implied contractual term that it should not do anything which was calculated to destroy or seriously damage the trust between employer and employee, and taking both his written and oral submissions into account, put forward three points.[8]Firstly there was the fact that Ms David had been sent home on 21 January. That amounted to a suspension and in turn, a breach of the implied term of trust and confidence. Secondly, Mr Perkins had failed to confirm in writing the contents of a meeting on 21 January, leading to confusion as to whether Ms David had been suspended or not. Thirdly, Mr Perkins failed to confirm in writing that Ms David had not been dismissed, failing also to inform her in writing of the allegations made against her and that she would have to attend a disciplinary hearing.[9]In the alternative Mr Jones argued that other accusations, including rumours that she had been dismissed, together with the conduct of Mr Perkins in failing to put anything in writing and the effect of the whole situation on her health, amounted to a series of acts and a breach of the implied term of trust and confidence. The Respondent joined issue with Ms David, very substantially, on the facts and, again, I will come to those in a moment.[10]The Tribunal set out the law in five paragraphs which I do not propose to read because they are not criticised in any way by Mr Jones and they represent a succinct and accurate summary of the law on this aspect. In their summary form, they are entirely consistent with the various decisions, particularly the decision of Malik -v- Bank of Credit and Commerce International . We were this morning, referred to a number of different passages in the authorities, including a passage from the speech of Lord Mackay of Clashfern in that case, which as I indicated a moment ago is consistent with the thrust of the statement of the law set out by the Tribunal.[11]So this is a case where there is no criticism of the Tribunal's statement of the law It is, however, argued that its application of the law to the facts of the case, is where the Tribunal was at fault, so we have to look at the facts as they were found by the Tribunal. As I am sure everyone in this room appreciates, the EAT is a Tribunal of law not of fact. Findings of fact are for what has often been described as the "industrial jury" to make, and attacks on the facts found by a Tribunal can only be sustained if the findings are themselves perverse; that is to say there was no basis upon which they could possibly be found. In this particular case, when the matter was before the Employment Appeal Tribunal on the preliminary hearing, His Honour Judge Pugsley made it clear, and it is not in issue today, that perversity was not an argument open on the facts to this Appellant, and we need say no more about it, we are therefore entirely bound by the findings which the Tribunal made.[12]The first finding was of a general nature and related to the statement by Mr Atkinson, and indeed, others, that Ms David had what had been described as a "vicious temper" and that she had, on occasions over the course of her employment, blown up and fallen out with other members of staff. From their own observation of her in the witness box, and also from the evidence they heard, the Tribunal was satisfied that that was the case.[13]I move, therefore, straight away to 19 January, where there was an incident involving two other members of staff, Ms Bester and Ms Singleton. There was a conflict of evidence as to exactly what happened but it was not necessary for the Tribunal to resolve that for the purposes of the application because the essence of what happened was not in issue. Both Ms Bester and Ms Singleton are white South Africans, or come from South Africa, and they alleged that Ms David had been rude to them and had made an offensive comment relating to the style of white people in South Africa. These two women obviously took that remark sufficiently seriously to complain about it to their superior, Ms Barnes, who in turn spoke to Mr Atkinson. Mr Atkinson spoke to the two women to obtain details of the incident and considered it potentially serious.[14]On 21 January he asked Ms David to join him in a meeting room. This meeting which took place on that date is at the heart of the issues in the case. I have already indicated what was in the form IT1 and recorded earlier that Ms David had alleged that Mr Atkinson had told her that she could either leave then and keep her reputation or be dismissed and go to a hearing which would become personal. The Tribunal found as a fact that that was not said, and as a consequence, that allegation as an allegation of breach of trust and confidence, or breach of contract, obviously falls away. It is common ground that Mr Perkins joined them, although Ms David said that she had asked for a woman called Laura Jones, a Board Director, to join them.[15]Ms David's version was that she asked why she had been given the ultimatum, and was told that an investigation would be carried out and that she should leave whilst that was being done, as she would upset everybody by being there. She said that she could not return to work because of the ultimatum, and Mr Perkins was to make contact with her on 25 January, the following Tuesday. She then went on to say, as part of her case, that she had received telephone calls from colleagues at home who had formed the impression that she had been dismissed and been replaced, and the Tribunal found that she had not been replaced, although temporary assistance had been obtained. She said that Mr Perkins had not contacted her on the 25 th . He had rung on the 26 th , the time when she was with the doctor. They had spoken the following morning and that Ms David asked what decision had been reached, following the investigation. She said Mr Perkins declined to discuss this on the telephone and asked for a meeting, Ms David said that her GP had signed her off work as suffering from stress and she asked if she still had a job because she had heard rumours to the contrary, and Mr Perkins confirmed that she was still employed, although he refused a request for her to confirm that in writing. He asked for the names of those who had been spreading rumours, but she declined to give them. She says that he was aggressive during that conversation and that her mother then spoke to him. She then wrote the letter of resignation.[16]The version given by Mr Atkinson and Mr Perkins was different and this is what the Tribunal found about it:
"29 ……Mr Atkinson told us that he had told the Applicant that a formal complaint had been made about her conduct, and that it would have to be dealt with formally. On this occasion, in contrast to previous occasions, it would have to be dealt with through the disciplinary procedure. He said that that would mean that the people with whom she worked would be involved. He said that it may have been possible to terminate her employment by agreement if she wished to pursue the career change which had been discussed some months previously. He denied that he had told the Applicant that she would be dismissed, and pointed out to us that he could not have done so because he was not in a position to prejudge the outcome of the disciplinary process. 30 The Applicant then asked for a third party to join the meeting - Mr Atkinson did not recall her mentioning Ms Jones. Mr Atkinson asked Mr Perkins to join them. Mr Perkins did not then know about the alleged incident, and said that he would have to talk to those involved. The Applicant became emotional. Mr Perkins suggested that it would be better if she were not present for a few days, because all involved sit in an open plan office. She was asked to return the following Tuesday when matters would be discussed, to which she agreed. 31. The Applicant asked Mr Perkins if she had been dismissed and Mr Perkins replied that she had not. However, he said, the informal approach which had been adopted previously had not worked and the disciplinary procedure had to be adopted as the alleged conduct was unacceptable. Mr Perkins told us (but not the Applicant) that dismissal would have been in his view an unlikely outcome and that the maximum penalty would have been a final written warning. They all discussed the possibility of the Applicant leaving by mutual consent if that was the route which she preferred. 32. Mr Perkins then carried out the internal investigation. He did not pursue the investigation as quickly as may have been the case, because the Applicant sent in a sick note. The Applicant did not report for work on 25 January as Mr Perkins expected. He denied being aggressive during the conversation on the telephone with the Applicant and her mother. He confirmed that she had not been dismissed, and told her that he wanted to meet with her to discuss the investigation."
There were then a series of sick notes sent in by Ms David. Mr Perkins wrote to her asking to see another doctor on 13 February, but she did not do so.[17]The letter which Ms David wrote is in our papers. It is clear from it that she was aware that she had not been dismissed, although she says, and there is no issue about this, that it was not confirmed in writing to her. She said, however, she did not see how she could return to work:
"Pat [Mr Atkinson] has made it absolutely clear that he would use any means to get rid of me, including "getting personal" at a dismissal hearing if necessary. Everyone believes I have been dismissed."
And she then repeated the allegation that someone had been got in to do her job. That was therefore her resignation.[18]Of those incidents, the Tribunal says this:
"Of the varying versions of the events from 21 to 26 January, where there is a conflict, we prefer the evidence of Mr Atkinson and Mr Perkins. We were not satisfied with the credibility of the Applicant when giving her evidence. We found Mr Atkinson and Mr Perkins to be credible witnesses whose evidence was internally consistent, and which was consistent one with the other. The evidence of Mr Atkinson about earlier discussions with the Applicant fits in with his evidence about the incident in January 2000. In particular we reject the evidence of the Applicant that she was told by Mr Atkinson that she must either resign or be dismissed. That is not consistent with his reference to the disciplinary procedure being implemented. It is also inconsistent with the procedure of investigation adopted by the Respondent, which procedure the Applicant acknowledged was taking place. We find as facts that Mr Atkinson did not make the alleged statement, but that he did discuss the possibility of the Applicant changing her career."
Those are very clear findings which of course are binding on us.[19]The Tribunal then went through the series of complaints which Ms David made about the way she had been treated over the course of her employment. It is not, we think, necessary to deal with those at all because the Tribunal effectively rejected them and there is no appeal in relation to those matters. They are essentially finding of fact which the Tribunal made and against which there can be no appeal.[20]Criticism is, however, made - and this is the main thrust of the argument - against the conclusions reached by the Tribunal in relation to the incidents which culminated in Ms David's resignation. This is what the Tribunal said about them. I think I need to read them in full from paragraph 46 onwards. "46 The principal claim by the Applicant was that she was told that she must resign or be dismissed, and that she did resign, and that is a matter of law that amounts to a dismissal. The legal submission is correct. However we have found as a fact that she was not given the alleged ultimatum. That head of claim fails." I pause to say that is un-appealable as a proposition and is not argued today. That is a clear finding of fact. "47 Mr Jones submitted that either alone, or together, the sending home of the Applicant, the failure of Mr Perkins to write to the Applicant following 21 January 2000 to confirm the position, and the failure to inform the Applicant of the allegations against her and that she would have to attend a disciplinary hearing amounted to a breach of the implied term relating to the maintenance of trust and confidence.48. We are all of the opinion that Mr Perkins could have handled the matter more sensitively. He declined to confirm to the Applicant in writing that she had not been dismissed, and cited previous practice as the reason. We consider that the best practice would have been for Mr Perkins to have written to the Applicant on 21 January confirming that she had been suspended while enquiries were made, and requesting her to return on the following Tuesday. Apart from anything else, such a letter would have avoided the confusion that arose as to whether the Applicant was due back in any event, or whether she was to wait for Mr Perkins to contact her. We find that such failure does not amount to a breach of contract entitling the Applicant to resign.49. We see nothing wrong in the fact that Mr Perkins did not notify the Applicant in writing of the allegations against her, and that she would have to attend a disciplinary hearing. As at 21 to 25 January 2000, the matter was still at an investigatory stage. Mr Perkins was wishing to interview the others involved, and then obtain information from the Applicant. He was not able to discuss the matter with the Applicant simply because she did not return to work. We find that the Applicant knew very well, at least in general terms, what the allegations were, and the absence of a letter of the nature suggested by Mr Jones does not amount to a breach of contract. In any event, it was not possible for Mr Perkins to have written a letter stating that the Applicant would have to face disciplinary proceedings because the matter had not gone beyond the investigatory stage." The Tribunal finally deals in its last paragraph with the list of complaints to which I earlier made reference, and which are not the subject matter of this appeal.[21]The nature of the case being put and the failure of the Tribunal, allegedly to deal with it, is I think, as put by Mr Jones in paragraph 47 of the Reasons. Either alone or together, those events were sufficient to warrant a breach of the implied term, and it was that argument, the cumulative argument, if I may put it like that, which persuaded the Employment Appeal Tribunal at the preliminary hearing of this appeal, in a constitution chaired by His Honour Judge Pugsley, to allow the matter through. They said:
"We think there is force in the submission that there may be an arguable ground as to whether this Tribunal failed on its own findings of fact to look at the cumulative position and ask itself whether or not the Respondents were in breach of the mutual trust and confidence. We say that because it is quite clear from the submissions that were being made on the Appellant's behalf before the Tribunal at paragraph 11, that the Tribunal was in fact being asked to consider not just one matter but a number of matters."
[22]We turn, therefore, briefly to look at the items individually. The first is Ms David's state at the meeting in January which was said to be emotional. We do not see how that could, of itself, or indeed as a cumulative issue, constitute a breach of the implied term for trust and confidence. Our understanding from the evidence is that Ms David became emotional when the matters were put to her.[23]Similarly, the confusion which she demonstrated is not, in our judgment, anything which can properly be laid at the door of the Respondent. In the amended Notice of Appeal, Mr Jones seeks to argue that the Tribunal made conflicting findings of fact when finding on the one hand that of the varying versions of events, they preferred the evidence of Mr Atkinson and Mr Perkins, which inevitably meant that they must have believed Mr Perkins telling the Applicant to return to work on 25 January. He contrasts that with paragraph 48 in which it is said that:
"a letter would have avoided the confusion that arose as to whether the Applicant was due back in any event, or whether she was to wait for Mr Perkins to contact her"
Therefore, he argued the Employment Tribunal erred in law. With respect to Mr Jones, we think that is a non sequitur. The confusion which arose, arose only in the mind of Ms David. She was plainly, and the Tribunal found, sufficiently told that she should return to work on 25 January. We see no conflict in the finding in the two paragraphs which Mr Jones referred. In any event, it was, in our judgment, perfectly reasonable for Mr Perkins in these circumstances to tell Ms David to go away whilst the matter was investigated and come back shortly after it had been. We are told that this is an open plan office, that had Ms David been present on the Monday when investigations were due to take place, everybody would have known about it, and it would have been a matter of some acute embarrassment to her.[24]It is also suggested by Mr Jones that Ms David was not aware of the nature of the allegation being made against her. It is, I think, unfortunate that this issue has to be dealt with in the absence of the Chairman's Notes, but the finding of the Tribunal was:
"the Applicant knew very well, at least in general terms, what the allegations were"
And we have also been shown various of the witness statements, including the statements of Mr Atkinson and Mr Perkins which make it reasonably clear that that finding by the Tribunal, to put the matter at its lowest, is clearly warranted. We do not think, therefore, there is anything in the point that Ms David was not informed of the nature of the case against her. She, in our judgment, plainly was.[25]As to the letter which it would have been advisable for Mr Perkins to write to her, I have of course read out what the Tribunal said. It would have been good practice to have done so, or perhaps, best practice to have done so, simply because it would have put on the record what the respective cases were, but we are satisfied that all the essential elements of what Ms David needed to know had been told to her reasonably clearly, and the failure to put it in writing is not, in our judgment, either a breach of the term as to trust or confidence, or to put the matter at its lowest, in our judgment, the Tribunal was perfectly entitled to reach the conclusion, as it did, that it was not such a breach.[26]Given the Tribunal's findings of fact, we are of the very clear view that no error of law is displayed in their reasoning. They were perfectly entitled, in our judgment, to reach the conclusions they did on the basis of the facts they found, and it follows therefore, inevitably, that this appeal must be dismissed.