MRS K MARCELLINE v MIDDLE EAST AIRLINES [2002] UKEAT 834_01_3008

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 834_01_3008Case No Appeal No. EAT/834/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS K MARCELLINEAPPELLANTMIDDLE EAST AIRLINESRESPONDENT
Before
His Honour Judge J R ReidDate 30 August 2002
[1]APPEARANCES For the Appellant MR SIMON PERHAR (of Counsel) Instructed by: Barnes & Partners Solicitors 4 Little Park Gardens Enfield Middlesex EN2 6PQ For the Respondent MR MARTYN WEST Advocate Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB JUDGE J R REID QC This is an appeal from a Decision of an Employment Tribunal which was held at Watford between 27 and 30 April of last year. The Decision was promulgated on 25 May 2001. By the Decision the Tribunal unanimously held that the Applicant, Mrs Marcelline, was not unfairly dismissed by the Respondent, Middle East Airlines; against that Decision she appeals. The basis of her claim to have been unfairly dismissed was that she asserted that she was constructively dismissed when she resigned on 11 July 2000, when she was coming to the end of a period of some three and a half months of sick leave.[2]The grounds of appeal are, in effect, two: the first that the Decision of the Tribunal was perverse, and the second that the Tribunal did not comply with its requirements under the well known decision in Meek , because it failed to deal with parts of the evidence and it failed to give sufficient account of the way in which it reached the conclusions which it did.[3]The background facts are that Mrs Marcelline was employed by Middle East Airlines. On 14 November 1988 she was initially employed as a secretary. As I have said, she left their employment on 11 July 2000, when she wrote a letter of resignation; at that stage, her designation was "Traffic Supervisor". The airline had a London office in Albermarle Street, but it also had a presence at Heathrow and it was at Heathrow that Mrs Marcelline was employed. In 1996 the staff of the airline at Heathrow was some twenty five people, but in that year the number was reduced to five at Heathrow because the airline contracted out a large part of its functions. The problems really appear to have started from then. The position was that Mrs Marcelline, although initially employed as a secretary, had gone on to do a wide variety of tasks. The Tribunal found as a fact that insofar as the duties which she did were varied and were expanded in 1996, beyond anything which she could have been required to do under her original written contract of employment, the variation was accepted by her and was affirmed, and Mr Perhar, appearing on her behalf did not seek to persuade us otherwise today.[4]The basis of her claim that she was constructively dismissed was that the volume of work that she was required to do was so great that, in effect, the employer was in fundamental breach of the terms of her contract. The law, so far as is material for the appeal, I think I can take fairly briefly. If an appeal is going to succeed on the grounds of perversity, the Employment Appeal Tribunal has to be satisfied that the Decision on the evidence before the Employment Tribunal was such that it could properly be described as irrational or as offending reason or obviously wrong, or not a permissible option, or flying in the fact of properly informed logic, to use expressions which have been used in other cases.[5]The failure of a Tribunal to give proper reasons may also lead to its decision being set aside - see Meek -v- City of Birmingham City Council . As to the role the Employment Appeal Tribunal has in a constructive dismissal case, as Lord Denning explained it in Woods -v- W M Car Services [1982] IRLR 413 at paragraph 15 where he said this:
"In the result I think the Employment Appeal Tribunal in these cases of constructive dismissal should only interfere with the decision of the Industrial Tribunal if it is shown that (i) the Industrial Tribunal misdirected itself in law, or (ii) the decision was such that no reasonable Industrial Tribunal could reach it. The Employment Appeal Tribunal ought not to interfere merely because it thinks that upon those facts it would not or might not itself have reached the same conclusion, for to do that would be for the Appeal Tribunal to usurp what is the sole function of the tribunal of fact."
So, in the Eclipse case, Eclipse - v- Wright [1992] IRLR 133 , at paragraph 14, Lord Allanbridge said:
"It can never be for an appellate tribunal concerned only with errors of law, to take upon itself the task of deciding what weight should be attached to particular facts."
[6]Those authorities make it clear that what we have to look at is whether there was evidence on which the Tribunal could find as it did, or whether truly, the Decision could be regarded as perverse and whether the Decision was adequately explained. In looking at whether the Decision was adequately explained, we are not to look for a work of literature. All that we are required to do is to see that the Decision was one from which the Reasons of the Tribunal can be properly discerned, and the legal basis on which the Tribunal acted can be properly discerned.[7]In this case, there is no doubt at all about the legal basis upon which Tribunal purported to act; no criticism has been made by either party of the way in which the Tribunal dealt with the law at paragraph 16 of its Decision. That was in these terms:
"By virtue of Section 95(1)(c) of the Employment Rights Act 1996 "
For the purpose of this part an employee is dismissed by his employer if (and, subject to subsection (2) in Section 96, only if) ………. (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct" " Guidance on the interpretation of this provision have been provided by the Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] ICR 221 where it was determined that "a significant breach going to the root of the contract or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract is a fundamental breach of contract and which would entitle an Applicant to regard herself as being dismissed within the meaning of Section 95(1)(c)." There are numerous cases referring to the implied duty "not to destroy the mutual duty of trust and confidence". In Courtaulds Northern Textiles Ltd -v- Andrew [1979] IRLR 84 the Employment Appeal Tribunal expressed it that "where an employer conducts themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties" there is such a breach. Similarly, it is now well-established that the employer has an obligation to provide a safe system of work for its employees and that an employer has a duty to take reasonable care to ensure that the duties allocated to an employee should not damage their health. Patch -v- Customs and Excise Commissioners [1993] ICR 795. A further implied term in contracts of employment, based on the implications of Part 1 Employment Rights Act 1996 is the obligation of the employer to provide a satisfactory grievance procedure. Where the employer does not do so it may be, in all the circumstances, that a breach of Section 95(1)(c) occurs, Goold (Pearmark) Ltd -v- McConnell [1995] IRLR 516 ."[8]The Tribunal's findings of fact which are attacked, are to be found, in essence, at paragraphs 18-21 of the Decision. The Tribunal said this:
"18. We find that the duties given to the Applicant to perform all fell within the work which she could properly be given to do in accordance with her contract of employment. We arrive at that conclusion as we find that the Applicant's duties were varied and expanded in 1996, that insofar as any change in duties may have been outside her original written contract of employment these were accepted by her and the variation affirmed. 19. The Applicant was required to work hard and did so. We do not find any evidence which would enable us to conclude that either the volume, the variety, the nature of the work or the combination of all three and the responsibilities which flowed was such that the Respondents broke the obligation to take reasonable care to ensure that the duties allocated to the Applicant should not damage her health. 20. The Applicant was provided with a grievance procedure, even if the Respondent had not resolved the grievance, the Applicant did not pursue the grievance and it was resolved. The Applicant had sufficient time, the capacity and the ability, to pursue that grievance."
Those were the findings of fact, and from that the Tribunal went on:
"21 We find that the Respondent did not breach either in any particular incident nor cumulatively through a series of incidents, the implied duty of mutual trust and confidence which is in all contracts of employment. 22. We find that the Applicant's resignation did not amount to a dismissal. It follows therefore that the Applicant was not unfairly dismissed by the Respondent."
[9]The position in which Mrs Marcelline found herself by the autumn of 1999 was this: that she had taken on a different role. The previous Station Manager, a Mr Andrews, had retired in 1998. For a short time he had been replaced by a Mrs Giselle Koram, but in April 1999, that role was taken over by Mr Baugi, who was new to the role. During Mr Baugi's tenure, it appears that he was more ready than his predecessors had been to offload work on to Mrs Marcelline. However, the Tribunal found that she could, generally speaking, do her duties, many and various as they were, within her thirty seven and a half hours per week of contracted work, and also that she was able to take all her annual leave.[10]She was concerned about the level of work that she was required to do, and in the early autumn, she wrote a letter on 27 September, setting out her grievance. She did not receive any response to that letter; she sent it to Mr Baugi and also to Mr Habib, who was Mr Baugi's superior, and primarily operating out of the office in Albermarle Street. The evidence was that the letter never came to Mr Habib's attention and, so far as Mr Baugi was concerned, his evidence was that he had talked to her about her grievance, and shortly after the letter, it was resolved.[11]There was a conflict of evidence as to whether or not there had been such a resolution, and the substantive point as an issue of fact, which the Appellant says the Tribunal should have resolved was which of those two versions the Tribunal accepted. In our judgment, it was not necessary for them to resolve what was a fairly small difference because, on the evidence as it was given, Mrs Marcelline never followed up on the grievance letter at all. She was, shortly afterwards on 13 October, redesignated as a Traffic Supervisor and in January, since matters appeared not to have got better, she wrote a letter of complaint.[12]At some time between the beginning of 2000 and 28 March, over a period of nineteen days, Mr Baugi was away from Heathrow. Over that time, Mrs Marcelline was required to, and did, fill in as Station Manager. That meant that she worked for nineteen days without any days off; she did, however, receive days off in lieu. Unhappily, her health was by this time suffering as a result of stress, though there is no finding as to the cause of that stress, and on 28 March she was signed off work, suffering (apart from anything else) with an ulcer.[13]During the period she was off work she was phoned about work matters on three occasions until it appears Mr Baugi became aware that telephoning her about work matters was not assisting her recovery. Thereafter she was phoned by colleagues but only on a social basis. The time passed and she was due to resume work in the mid part of July. It was at this stage that she decided that she could not face going back to work and wrote her letter of resignation, to which I have already referred. That letter, drafted with professional advice, makes it plain that she is asserting that the company has failed to take reasonable steps to avoid a workload which endangered her health, and that she believed that she had been constructively dismissed.[14]The Tribunal set out the story in a fairly brief form. The hearing had taken two days out of a period from 27 - 30 April, and we have had the advantage of seeing not only the Chairman's Notes of Evidence which ran to twenty six pages, but also, incorporated into it, the witness statements which were verified by each of those witnesses who gave evidence before the Tribunal. They comprised first of all, and most substantially in terms of volume, Mrs Marcelline, then Mrs Koram, then Mrs Love, who was the senior secretary, but employed not at Heathrow, but at the Albermarle Street office, and Ms Jane Bennett-Burgers who was part-time passengers services agent, who was employed by the airline and was at Heathrow. Those were the witnesses on behalf of the Applicant. Mr Habib and Mr Baugi were the two witnesses called on behalf of the airline. All of their evidence is referred to in the Tribunal's Decision, as one can see from paragraph 2.[15]The position, it was submitted on behalf of Mrs Marcelline, was that the way in which the Tribunal dealt with the matter was inadequate; it was said first of all, that the duties that she carried out could not properly be regarded as secretarial and they could not properly be regarded as being of an administrative nature, which was the description given to them in paragraph 5 of the Extended Reasons, and it was said that the finding in paragraph 18 that the duties given "fell within the work which she could properly be given to do in accordance with her contract of employment" was clearly wrong.[16]In our judgment there is nothing in those points. The fact of the matter was that this was a small operation from 1996 onwards and the Tribunal found, as was plainly the fact, that whatever may have been in her original contract of employment back in 1988, by the later 1990s the nature of the tasks that she undertook, she being a willing and versatile worker, had by her tacit agreement increased and that the ambit of her employment was therefore contractually varied.[17]Counsel for Mrs Marcelline then went on to point out that Mr Baugi in his evidence had said that Mrs Marcelline was unable to act as Traffic Supervisor until a secretary was appointed and could not do both jobs, but the evidence was that she had in fact done both jobs over a period of time. So far as that was concerned, and the further finding that she had covered the role of Station Manager (which it is said was made but then was disregarded) the Tribunal found that she could in general terms do her job within her contractual hours and that she was getting all the leave that she was entitled to do. The explanation appears to be that some of her many and various duties were less pressing than others and those that were less pressing got put on the back burner, but there was an express finding of fact, which was not effectively challenged, that she was in general terms able to do the job within the hours required of her by her contract; obviously, everybody from time to time has to work late.[18]In those circumstances it seems to us that the Tribunal, on the way in which the case was presented to them and the evidence which it had before it, was entitled to come to the conclusion which it did and it cannot be said that the Tribunal came to a Decision which can be properly attacked as being perverse. That is not to say that we would necessarily have come to the same conclusion had we been the Tribunal dealing with the matter at first instance. It does not matter what we would have done had we been the Tribunal at first instance; we are concerned only with questions of law, one of which is whether as a matter of law it could be said that the Decision of the Tribunal was perverse.[19]The second and third grounds of appeal first of all suggested that there was a passage in the Chairman's Notes which cannot have been accurate. The position so far as that is concerned is that it is in the notes and is therefore taken to be an accurate record of the evidence which was given, unless and until a specific challenge is taken and the matter is tested which would require, amongst other things, affidavit evidence.[20]Here the challenge is mounted simply on the basis of a paragraph of the Skeleton Argument and what is said to be contradiction between two notes of evidence, one saying "Baugi always capable from day one" and the other saying "Baugi, he is changed 500%, he is now a very good Manager". Those two are not, as we read it, in any event, inconsistent but, in any event, the note cannot be challenged. It may well be that there will be inconsistencies between two passages in a note because there are inconsistencies in the evidence which is being recorded.[21]The further challenge is that the Tribunal did not go on and deal with what are described as the "decision making process based round conflicting evidence" or to resolve the conflicts. The reality is that there was very little in the way of direct conflict of evidence. The one particular point that we have already mentioned was the question as to the unresolved issue on whether or not the grievance had been sorted out. On that we have already made our comment that the reality was that there was very little between the parties, and in any event, it was not a point which it was necessary for the Tribunal to resolve in order to reach their conclusion.[22]That disposes of the grounds which were raised essentially in the Skeleton Argument on behalf of the Appellant, and urged orally on behalf of the Appellant by Mr Perhar, for whose argument we are grateful. When one takes the matter in the round, what we were being asked to do, although dressed up as a perversity appeal and dressed up as being a failure to properly explain its Decision, was to allow an appeal on the facts. That we could not do, even if we were minded to do so.[23]We are satisfied that the Tribunal's Decision discloses no inadequacy or error of law which would entitle the Employment Appeal Tribunal to quash the Decision, and in those circumstances, the appeal fails and must be dismissed.