MR A LEVINSON v PICKFORDS LTD [2004] UKEAT 0985_03_0204

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0985_03_0204Case No Appeal No. UKEAT/0985/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A LEVINSONAPPELLANTPICKFORDS LTDRESPONDENT
Before
His Honour Judge Prophet Mr M Clancy Mrs D M PalmerDate 2 April 2004
[1]APPEARANCES For the Appellant MR JOHN HORAN (of Counsel) Instructed by: Messrs Hodge Jones & Allen Solicitors 31-39 Camden Road London NW1 9LR For the Respondent MR RICHARD HARRISON (of Counsel) Instructed by: Messrs Eversheds Solicitors Cloth Hall Court Infirmary Street Leeds LS1 2JB SUMMARY Unfair Dismissal The appeal was in respect of the ET's finding that Ms Levinson was not constructively dismissed. We could find no merit in submissions based on an attempt to introduce a range of implied terms into the contract of employment. HIS HONOUR JUDGE PROPHET Mr Levinson worked for Pickfords as a Branch Manager. He resigned from his employment by a letter dated 14 June 2002 which date was the effective date of termination. Prior to that date he had been absent sick from 29 January 2002. In a claim submitted on 10 September 2002 to the Employment Tribunal at Watford he alleged that he had been constructively dismissed and that that dismissal was unfair.[2]An Employment Tribunal, with Mr Pettigrew as the Chairman and Ms Barnett and Mr Underwood as the lay members, held a hearing over 5 days from 19 May 2003 to 23 May 2003. Both sides were represented by Counsel, i.e. Mr Horan on behalf of Mr Levinson and Mr Harrison on behalf of the employer. The decision was reserved and promulgated with Extended Reasons covering 34 pages on 25 June 2003. It was a majority decision that Mr Levinson was not constructively dismissed.[3]A Notice of Appeal by Mr Levinson was submitted to the Employment Appeal Tribunal on 6 August 2003. Initially that was rejected under Rule 3 (7) of the Employment Appeal Tribunal Rules 1993 ; but by an Order of His Honour Judge Clark on 9 December 2003 the appeal was set down for a full hearing and we are constituted today to conduct that hearing. We have the very considerable benefit of the same Counsel as appeared in the Employment Tribunal attending here today.[4]The statutory provisions regarding constructive dismissal appear from the Extended Reasons to be well appreciated by the Employment Tribunal in this case. It is generally accepted that the contractual test based on Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 provides a considerable hurdle for any employee who resigns to surmount if he is to satisfy an Employment Tribunal that he has in that situation been dismissed.[5]In the case we are considering the Employment Tribunal was called upon to examine in considerable detail a series of alleged express and implied terms of the contract of employment. The point at which there was a difference of view between the majority of the Employment Tribunal and one lay member, Mr Underwood, was in respect of whether a breach of the employers of one aspect of the contractual disciplinary procedure, that is to say in respect of investigation of some matters, was a fundamental breach. The majority concluded that it was not; the minority that it was.[6]Mr Horan's challenge relates to that and to what were otherwise unanimous conclusions by the Employment Tribunal that there was no fundamental breach of contract arising from any other alleged terms in Mr Levinson's contract of employment whether express of implied.[7]The attempt by Mr Levinson to introduce a large number of implied terms into his contract of employment was not in our view helpful to a proper consideration of a case of unfair dismissal, and made it more difficult for the Employment Tribunal to distinguish the wood from the trees. Indeed, to approach the employment relationship on the basis that there exists a wide range of implied terms would be, in our respectful view, to leave it in an unworkable state.[8]We agree with Mr Harrison's broad approach to the introduction of implied terms into contracts of employment. Where there are express terms there is likely to be little if any scope for the introduction of implied terms into the operation of the express terms. Indeed, in this case there were express terms in respect of both disciplinary procedures and grievance procedures; and the Employment Tribunal did not find it appropriate to accept submissions of additional implied terms.[9]In any event, there is one well-recognised implied term in all contracts of employment, i.e. the implied term of trust and confidence. If, therefore, in a particular situation an employer with, say, a written grievance procedure fails to apply it properly, for example by serious delay, the employee could proceed on the basis of there being a breach of the implied term of trust and confidence.[10]We are not able to accept Mr Horan's submission that the case of Goold v McConnell [1995] IRLR 516 , notwithstanding that it was a judgment of a former President of this Tribunal, is authority for the proposition that there is an implied term in every contract of employment that an employee should have a means of having a grievance redressed in a proper manner. We have no doubt that, as was the position in the Goold case, in the absence of an express term providing a means of redress such a term can properly be implied and that that may well be a sub-species of the implied term of trust and confidence, as Mr Harrison suggests.[11]However, where there is an express term covering that matter the only additional implied term which bears on it is that of trust and confidence. Similarly, where there is a contractual disciplinary procedure no specific implied term such as that advanced to us today by Mr Horan that the disciplinary procedure be conducted fairly is necessary. Indeed, he accepts that he can find no authority for any such implied term existing. This may well be because alleged breaches of disciplinary procedures or alleged unfairness in the operation of the procedures are usually examined by Employment Tribunals in the context of the statutory procedures for unfair dismissal; or, alternatively, through the route of the implied term of trust and confidence.[12]The Employment Tribunal considered the complaints of Mr Levinson within the implied term of trust and confidence; and it is apparent from their findings of fact that they could find no fundamental breach of that term in any respect.[13]On the area of the breach of the contractual procedure, it is well known that it is for the Employment Tribunal to assess in the particular situation whether a breach of a contractual procedure is or is not fundamental. We fully accept that keeping to procedures is very important in employment relations; but the proposition that any breach of that procedure must be fundamental is simply not sustainable. The majority of the Employment Tribunal were entitled to find, as they did, in that respect.[14]Finally, we are satisfied that the Employment Tribunal had proper regard to the complete picture following their comprehensive review of the history of Mr Levinson's employment. Mr Horan is quite right when he says that where there is a succession of incidents prior to a resignation an Employment Tribunal will be called upon to assess the whole picture in order to determine cumulatively whether there has been a fundamental breach of contract. See, for example, Lewis v Motorworld [1986] ICR 157.[15]In paragraph 130 of their judgment the Employment Tribunal say this:
"In the alternative, he [that is to say, Mr Horan] argued that there was a course of conduct or series of events which collectively and cumulatively amounted to a fundamental breach of the implied term that the Respondents would not do anything intended or likely to destroy or undermine the trust and confidence that he ought to be able to have in his employer."
That indicates to us that this Employment Tribunal had fully in mind their responsibility of dealing with these matters cumulatively as well as singularly.[16]Unanimously, therefore, we conclude that this appeal fails and is dismissed.[17]However, we accept that there are matters which have been properly argued before us by Mr Horan and we are not prepared to award any costs in this appeal.