NICOLAS UK LIMITED v MRS L TROQUET [2004] UKEAT 0923_03_1208

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0923_03_1208Case No Appeal Nos UKEAT/0923/03/TM UKEAT/0082/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
NICOLAS UK LIMITEDAPPELLANTMRS L TROQUETRESPONDENT
Before
Mr Justice Beatson Mr P GammonDate 12 August 2004
[1]APPEARANCES For the Appellant MR J GALBRAITH-MARTEN (of Counsel) Instructed by: Messrs Hallens Tempsford 31a St Stephen's Road Hounslow Middlesex TW3 2BH For the Respondent MR J DONOVAN (of Counsel) Instructed by: Messrs Bindman & Partners Solicitors 275 Grays Inn Road London WC1X 8QB SUMMARY The Tribunal's decision that the employee had been constructively unfairly dismissed was upheld. The Tribunal's summary of the test in Weston Excavating (ECC) Ltd v Sharp [1978] IRLR 27 and its findings concerning the employee sufficed to show a finding that she had left "in response to" the employer's repudiatory breach. The Tribunal's decision was not perverse. THE HONOURABLE MR JUSTICE BEATSON This is an appeal by Nicolas UK Ltd, the former employers, against the unanimous decision of the London Central Employment Tribunal which, after a four-day hearing, upheld a complaint by Mrs Troquet, the respondent to this appeal, that she was constructively unfairly dismissed. An appeal against the remedy granted by the tribunal was not pursued.[2]The facts relating to this matter can be shortly stated and we primarily take them from the written decision of the tribunal which was sent to the parties on 15 September 2003. Mrs Troquet was employed by Nicolas (UK) Ltd as a shop manager from 1998 until she resigned on 11 July 2001. Nicolas is a retail wine merchant owned by a French company with about 25 branches in the London area. The relationship between Mrs Troquet and Nicolas deteriorated in the spring and summer of 2001. In April 2001 Mrs Troquet, who had expressed interest in being transferred to the larger Primrose Hill branch as one of the managers there, was told she was not to be moved. She remained at the Kings Road branch but decided to look around for another job as she was disappointed that she had not been promoted. At about the same time the assistant manager at the Kings Road branch was promoted and transferred, and three managers, including Mrs Troquet, were left to cover two shops for several weeks.[3]On 26 June 2001 there was a robbery at the Kings Road branch. Mrs Troquet's colleague, Franck Leclerq was working alone in the shop. A gun was held to his head and the takings were stolen. Mrs Troquet was told about the incident by Mr Leclerq shortly afterwards. She invited a Metropolitan Police Crime Prevention Officer to inspect the premises. Andrew Booth, a Crime Prevention Officer in the Kensington and Chelsea Police Division visited the shop. His report, dated 29 June 2001, was critical of the security arrangements. It stated the burglar alarm was not working properly, the personal attack facility was badly sited, and access control was very poor. The report suggested that an electric door release system should be in place in conjunction with CCTV and that the cash desk should be relocated. On 27 June 2001 Mrs Troquet had written to Mr Hanns, Nicolas' managing director, asking that the firm "take action to give us a safe environment to work in". The letter stated that "after repeated requests for CCTV to be installed, personal alarms, or even mirrors to aid us to watch customers; nothing has been done to improve our safety or security within our shop" Mr Hanns replied in a letter dated 28 June 2001 stating that the company took the robbery very seriously and that "we are taking all possible action to reduce the chance of it happening again". The letter stated that a firm's representative had contacted the crime prevention officer, that the firm would organise a general managers' meeting with a talk on crime prevention, and that assistance in the form of a trainee and then a further two people would be given to the shop.[4]The next development was a meeting on 29 June between Mrs Troquet, Mr Leclerq, and Mr Philip Sabot, the company's area manager and personnel manager. In its decision the Tribunal records that recollections differed as to what happened. Mrs Troquet said that Mr Sabot was bullying towards her and she felt intimidated. Although initially Mr Leclerq's recollection of this meeting was vague he recalled an occasion when all three met saying that there had been no solution at the meeting and that Mr Sabot had said that if they could not find a solution he would put them in a shop where they had to travel two hours a day. The Tribunal accepted the evidence of Mrs Troquet and Mr Leclerq that they were not offered time off and that the employer did not agree to introduce CCTV and personal alarms. It stated that as at 29 June the company's proposals to deal with the security issues raised by the robbery were those set out in Mr Hann's letter dated 28 June.[5]The Tribunal stated that it appeared that following her return to work after the robbery Mrs Troquet worked alone in the shop for 2 days. On the evening of 2 July she had an unpleasant encounter with a customer who attempted to carry out a credit card fraud and became abusive when challenged. That evening Mrs Troquet wrote to Mr Hanns stating that she wanted action taken within 5 days so she could work in safety. She asked that another staff member be on duty so she did not need to work alone, for CCTV and a portable alarm to relay with a security company in case of further attacks to be installed, and for all further recommendations made by the crime prevention officer to be considered and to be carried out within a reasonable time scale. On 5 July Mrs Troquet was signed off sick for 2 weeks because of stress at work. Mr Hanns and Mr Sabot arranged for a meeting on 6 July. Although Mrs Troquet denied that a meeting had been arranged, an e-mail from her to Mr Hanns on 6 July refers to it and explains that she was not in a position to attend meetings because she was off ill. The Tribunal decision states that Mr Hanns and Mr Sabot's written evidence stated they had arranged a meeting with Mrs Troquet and Mr Leclerq on 4 July although when giving oral evidence they said they had been mistaken and it was on 6 July. The Tribunal found that possibly the meeting had been arranged with Mr Leclerq rather than Mrs Troquet although it noted the reference to the meeting in her e-mail of 6 July.[6]On 9 July 2001 Mrs Troquet submitted her first complaint to the Tribunal claiming violations of the equal pay legislation and alleging discrimination. On 11 July she wrote to the company resigning. She stated that she had had no reply to her grievance note of 2 July or her e-mail of 6 July. She stated that she had concluded that the grievance procedure, under which she asked the company to take action to enable her to work in a safe environment, had broken down and that she regarded herself as having been constructively dismissed. Mr Hanns replied on 13 July denying that the company had not dealt with Mrs Troquet's grievance properly and setting out the steps that had been taken. He stated that he attended the branch on 6 July with Mr Sabot to meet Mr Leclerq and Mrs Troquet to discuss the grievance and consider the best way forward. He accepted her resignation "with regret".[7]On 1 October 2001 Mrs Troquet presented a second Originating Application claiming wrongful dismissal, unfair dismissal and sex discrimination. The Tribunal hearing was postponed on three occasions due to Mrs Troquet's ill health but came before the Employment Tribunal on 26 June 2003. The Tribunal dismissed her complaint of sex discrimination but held that she had been constructively unfairly dismissed. The Tribunal was satisfied that the company had not provided a safe system of work for the Applicant. Mrs Troquet had been requesting additional security for a long time but they had not met this request. The Tribunal stated that the failure to provide Mrs Troquet with a safe system of work:
"…was not remedied even after the incident on 26 June and the applicant had to submit a grievance, which was not appropriately handled by the respondent. Mr Sabot's attitude towards the applicant and her colleague demonstrated the respondent's unwillingness to confront the problem and we find the respondent's conduct amounted to a breach of the implied duty both of trust and confidence. In addition we find the respondent did fail in its duty to provide a safe system of work as they failed to take such steps as are reasonably practicable to [prevent] Mrs Troquet's exposure to unnecessary risk."
[8]The employers appealed on the following grounds: i) The Tribunal's finding that no meeting was arranged to discuss Mrs Troquet's grievance or that her grievance was not properly dealt with was perverse. ii) The Tribunal improperly relied on matters not pleaded. The employers argued that the Tribunal's conclusion that Mrs Troquet was required to work in excess of the Working Time Regulations and was subject to unreasonable constraints in taking leave were findings that in part led it to conclude that she had been constructively dismissed although those allegations were not in the issues defined by the Tribunal at any of the directions hearings. They argued that the allegations were raised for the first time at the hearing. Accordingly, since they were expected to respond to issues of which they had previously been unaware were part of the claim for constructive dismissal, they were not given a fair hearing on those matters. iii) The Tribunal reached perverse findings of fact in its decision concerning the Working Time Regulations since its findings of fact were in contradiction to Mrs Troquet's express reasons for resigning as set out in her letter of resignation of 11 July 2001. iv) The Tribunal failed to make a finding as to whether Mrs Troquet resigned as a consequence of the company's breach of contract or for some other reason. v) The Tribunal erred in law in substituting its view of the employer's actions contrary to the test set out in Dutton and Clark Ltd v Daly [1985] IRLR 363, and making no findings of fact whatsoever as to whether the action taken by the company in respect of the provision of a safe system of work was outside the band of reasonable responses to be expected of a reasonable employer. They also argued the Tribunal's conclusions that the employers failed to provide a safe system of work was perverse and contrary to the evidence.[9]The grounds of appeal also included complaints that the Tribunal's finding that Mrs Troquet had been asking for additional security for a long time and that additional evidence produced by her after the hearing which the Tribunal did not accept in evidence but which the chairman read de bene esse , denied the company a fair hearing. These were not pursued.[10]On behalf of Mrs Troquet it was argued that, give the factual background, in particular the meeting of 29 June in which the Tribunal concluded (paragraph 45) that the employer's unwillingness to confront the problem was demonstrated, it was not perverse of the Tribunal to conclude that the offer of a further meeting to talk, as opposed to taking action, could not be treated as a reply to the grievance. We agree. The issues raised by Mrs Troquet had all been discussed at the meeting on 29 June. The evidence was that in arranging the meeting on 6 July Mr Sabot and Mr Hanns had talked with each other, not with Mrs Troquet. Mr Sabot's written evidence states that after the receipt of Mrs Troquet's letter of 2 July:
"I spoke with Mr Hanns about this letter and we agreed to attend at the shop to talk to Mrs Troquet about her concerns about [gap in tape] among other things. However, when we arrived at the shop on 4 July, she was not there."
In oral evidence he accepted that the date was mistaken but what is significant is that he did not refer to any communication with Mrs Troquet. Mr Hanns also accepted that the date in his witness statement was mistaken. That witness statement also mentioned no arrangement with Mrs Troquet. The Tribunal was in these circumstances, entitled to conclude that the arrangement may have been with Mr Leclerq, particularly since Mrs Troquet was off work from 5 July. In those circumstances its conclusion that the meeting could not be treated as a reply to Mrs Troquet's grievance is one to which it was entitled to come. Accordingly, we reject this ground of appeal.[11]We also reject the argument that the Tribunal improperly relied on matters not pleaded. Mrs Troquet's amended Originating Application raises complaints of excessive hours in paragraphs 2 and 4. Her witness statement dealt with both the excessive working time complaint and a complaint that the leave arrangements were inadequate. These were pleaded as part of the background to the relationship between the parties against which the Tribunal was invited to assess whether the events in late June and early July amounted to a breach of the implied duty of trust and confidence and therefore a constructive unfair dismissal. The Tribunal, in its conclusion section treats it in this way. The Appellant relied on the decisions in Chapman v Simons [1994] IRLR 124 , Bradford Hospitals v Al-Shabib [2003] IRLR 4 and Ahuja v Inghams [2002] EWCA Civ 1292 . These were all cases in which unlawful race discrimination was alleged. In Chapman v Simons the Court of Appeal held that a complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination but that it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. In that case an employment tribunal had rejected an allegation of discrimination in the way that complaints against a black teacher and a white teacher were processed but found that the head teacher had prejudged the case against the black teacher and that this amounted to unlawful discrimination. The EAT allowed an appeal against this finding and the decision of the EAT was upheld by the Court of Appeal. It is, however, important to note that in that case, the court stated (see Balcombe LJ at paragraph 33) that no complaint was ever made by the black teacher relating to the matters which the employment tribunal found to have constituted racial discrimination. Similarly, in Bradford Hospitals v Al-Shabib the EAT stated there was nothing in Mr Al-Shabib's ET1 or the witness statement he annexed to it which could properly have put the trust on notice that there was any claim for discrimination by victimisation. The position is different in this case. Mrs Troquet was not required to mention the working time allegation in her letter of resignation but she did raise it in both her ET1 and her witness statement as part of her complaint that the employers had constructively unfairly dismissed her. The complaints could not have taken the employers by surprise. Moreover, the Tribunal's findings relating to the working time regulations are also not perverse findings of fact as alleged in a separate ground of appeal in view of the evidence before the tribunal from Mrs Troquet as to the hours she worked.[12]The next ground of appeal, described by Mr Galbraith-Marten as the "causation" ground, was that the Tribunal failed to determine whether Mrs Troquet resigned in response to the breach. In Walker v Josiah Wedgwood & Sons Ltd [1978] IRLR 105 Arnold J stated:
"…it is at least requisite that the employee should leave because of the breach of the employer's relevant duty to him, and that this should demonstrably be the case. It is not sufficient, we think, if he merely leaves…and secondly, we think, it is not sufficient if he leaves in circumstances which indicate some ground for his leaving other than the breach of the employer's obligation to him."
In the present case the employers rely on the finding that Mrs Troquet decided to leave her job as early as April 2001 as she was disappointed by the Respondent's failure to promote her and felt she was not supported by her management (decision paragraph 22). Mr Galbraith-Marten submitted that in view of this finding it was incumbent on the Tribunal to consider the question whether Mrs Troquet's resignation was in response to the breaches or for some other reason, as well as concluding that the company had acted in breach of contract. In failing to do so, they argue the Tribunal erred in law. On behalf of Mrs Troquet it is argued that the tribunal summarised the requirement of causation by reference to the test in Weston Excavating (ECC) Ltd v Sharp [1978] IRLR 27 . The Tribunal stated that in that case:
"the Court of Appeal held that the employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that employer no longer intends to be bound by one or more of the essential terms of the contract. In those circumstances, an employee is entitled to leave with or without notice in response to that breach so long as there is no delay."
Mr Donovan relies on the word "in response to that breach" as showing the Tribunal understood the requirement of causation. The fact that Mrs Troquet had decided to leave and in effect to look around for another job is, as Mr Donovan submitted, not the same as a decision to resign forthwith. Mrs Troquet had, the Tribunal found, made her decision to look around in April but did not resign until 8 July. She contended (see paragraph 8.2 of the Tribunal's decision) that the employer's conduct after the robbery was the last straw suggesting by implication that she was close to resigning even before the events of late June early July. We have concluded that, although it would have been preferable for the Tribunal to make an express finding on the point, in view of its findings as to Mrs Troquet's state of mind in April, its correct summary of the requirement of causation as including the need for the employee to leave "in response to" the repudiatory breach, and the repudiatory breaches the Tribunal identified in paragraphs 44 and 45, that the Tribunal implicitly found that Mrs Troquet left in response to those breaches.[13]We turn to the argument that the Tribunal erred in law in substituting its view of the employer's actions contrary to the test set out in Dutton and Clark Ltd v Daly and making no findings of fact as to whether the action taken by the company in respect of the provision of a safe system of work was outside the bounds of reasonable responses to be expected of a reasonable employer. Mr Donovan submitted that the decision in Dutton and Clark Ltd v Daly is of doubtful authority since, as stated by the editors of Harvey on Industrial Relations and Employment Law division D1, paragraphs 421-422, it requires an employment tribunal to apply a more exacting test as to whether a contract of employment has been breached than that applied by the courts. He also submitted that in any event the Tribunal, which set out the test in Daly in paragraph 43, purported to apply it in paragraphs 44 and 45. The Tribunal found that Nicolas had carried out no risk assessments prior to the robbery, notwithstanding its legal duties, nor at any time had it consulted with employees: paragraphs 23-24 and 44. The Tribunal held that, after the robbery, Nicolas had failed promptly to correct the situation, thereby failing in its duty to provide a safe system of work. It is clear from these findings, made immediately after the Tribunal set out the test in Dutton and Clark Ltd v Daly , that the Tribunal applied the test in that case. It is an inevitable inference that it found that in the circumstances no reasonable employer would have expected Mrs Troquet to work in the conditions that she did. Since it is clear that an employee who leaves because the system of work is unsafe may claim unfair dismissal (see British Aircraft Corporation v Austin [1978] IRLR 332 and Keys v Shoefayre Ltd [1978] IRLR 476 ; Jagdeo v Smiths Industries Ltd [1982] ICR 47) the tribunal was entitled to reach the conclusion it did. We have not found it necessary in this case to address the criticisms made by the editors of Harvey on Industrial Relations and Employment Law of Dutton and Clark Ltd v Daly . Since, however, the issue before a tribunal is whether the employee has left in response to the employer's repudiatory breach of contract, there does not appear to us to be a good reason for making a difference in the tests. In any even, as Mr Donovan argued, if Dutton and Clark Ltd v Daly was incorrectly decided, and the tribunal should have applied a stricter test, in view of the tribunal's conclusions, Nicolas would inevitably have failed it. The basis for the tribunal's conclusion would be stronger and the result would fall within the "plainly and unarguably right" category Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 , and thus not susceptible to reversal in the EAT. We also reject Mr Galbraith-Marten's alternative way of putting his criticisms of the tribunal's approach was neither perverse nor contrary to the evidence. Mr Sabot and Michael Taylor, the company's research director accepted that before the robbery on 26 June 2001 the company had not conducted any risk assessments. Mr Sabot was unaware of health and safety requirements under European law. Although Mr Hanns stated that the company had complied with the statutory duty "informally" and that it was the manager's duty to carry out the risk assessment, the Tribunal concluded that there was no evidence that the company consulted with its employees. We have set out the Tribunal's conclusions as to the steps that the company took after the robbery and their conclusion that the failure to provide Mrs Troquet with a safe system of work was not remedied after the robbery. The Tribunal was entitled to rely on these facts to conclude that the employers failed to provide a safe system of work.[14]For these reasons we consider that the Employment Tribunal was entitled to reach the conclusions which it did on the evidence before it, and that it has not misdirected itself in any way. Accordingly, this appeal is dismissed.