Appeal No. EAT/188/93
	I N T E R N A L  

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 December 1993

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MR R TODD

	MISS D WHITTINGHAM

CARDIFF ANIMAL SHELTER	APPELLANTS

MISS D HARVEY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MS L BOSWELL
(OF COUNSEL)
Messrs James Jones &
Jenkins
Arlbee House
Greyfriars Road
Cardiff
CF1 4QB

For the Respondent	MR P HARTLEY-DAVIES
(OF COUNSEL)
Messrs Merrils Ede
Dominions House South
Dominions Arcade
Queen Street
Cardiff
CF1 4AR

	JUDGE HARGROVE OBE QC:  In this case the Industrial Tribunal held that the Respondent was constructively dismissed.  She was an assistant manageress at the Cardiff Animal Shelter.  In May 1992 the secretary of the Committee complained that the Respondent had spoken rudely to her.  The Respondent was requested to apologise and she denied any rudeness and refused to apologise.  On 11 May the Respondent was sent a warning notice.  She had no notification of any intention to issue such a notice and was given no opportunity of putting forward any representations in relation to it.

	The Tribunal held that she was entitled to be forewarned and it is now accepted that the sending of that warning notice was wrong.  It was in breach of the procedures and indeed totally ignored the procedural rules of the Appellants.  She applied for an appeal to be heard.  She believed that should have taken place within four working days as the procedure provided but the Chairman of the Committee, Mr Newman, informed the manageress, Miss Prosser, to tell the Respondent that he would not hold an appeal on that day, the Monday but obviously was going to hold it at a later time.  The Respondent believed that the appeal had in fact been refused and on 18 May she gave notice of termination, the termination to take effect on 25th May.  However, the Appellants did convene an Appeal Tribunal.  It was conducted by Mr Newman.  He was one of the individuals who had originally agreed to send the written warning.  The hearing of that appeal which was attended by the Respondent was, to put it neutrally, somewhat unfortunate.  It began by Mr Newman taking the robust line by telling the Respondent the appeal was being held at her request because of the warning she had received due to rudeness and before he was going to start he asked her if she was willing to apologise.  Not unnaturally the answer of the Respondent was that this rather pre-judged the issue.

	It is agreed by both sides that the Tribunal here used the correct test in law.  But, say the Appellants, the Tribunal is in error because it took into account matters which occurred after 18 May, for example there was some consideration by the Tribunal of the appeal which it may be added, came to nothing because Mr Newman took the view that it was pointless him giving an answer to the appeal unless the Respondent withdrew her notice of termination.

	The findings of the Tribunal occur first at paragraph 35 when very helpfully the Tribunal set out their findings of facts which were these:

		"(i)	termination of Miss Harvey's contract of employment took place on 25 May 1992 on expiry of one week's notice given in her letter of resignation dated 18 May

		(ii)	termination was caused by the respondents' breach of their implied contractual duty of trust and confidence

		(iii)	the relevant breach constituted the imposition of a disciplinary penalty when the respondents had failed to comply with their own disciplinary procedures or to carry out such disciplinary and investigatory procedures as a reasonable employer  would have carried out in the circumstances

		(iv)	in giving one week's notice of termination Miss Harvey neither delayed her departure so as to condone the respondents' conduct, nor acted over-hastily so as to give them insufficient time to remedy the situation in that one week was a reasonable time in which to give the respondents the opportunity to investigate the matter, hear both sides of the case, conduct a disciplinary appeal, to reach a conclusion on that appeal, and to remedy the situation

		(v)	the respondents failed to carry out proper remedial procedures within the notice period and the applicant was not unreasonable in taking the view that her trust and confidence in them was gone and that she could no longer be expected to work for them."

	There was a further finding by the Tribunal and it was this:

		"Nor, in our view, was Miss Harvey over-hasty in handing in her resignation as soon as she thought an appeal had been refused.  We find that she had perfectly reasonable grounds for believing that "working days" included the weekend, and that she genuinely thought the appeal had been refused, even though in fact it had not, and that to her was the last straw."

	It is correct to say, of course, in relation to that latter matter, that the Tribunal were applying there a subjective test:  it is accepted on both sides and it is clear law that they should have applied an objective test.  Nonetheless, in our view, the Tribunal was correct in holding that the imposition of a disciplinary penalty, namely the warning notice, while totally ignoring their own procedures and in not giving the Respondent and opportunity to be heard before issuing the notice, was a fundamental breach and it was also in breach of their duty of trust and confidence.

	We do not accept that because the Respondent entered a Notice of Appeal that in some way constitutes an acceptance by the Respondent that she would overlook the fundamental breach and continue the contract.  While an employee cannot blow hot and cold, nonetheless the fact that she pursues one of the remedies available to her does not mean, in cases such as this, that she necessarily disentitles herself from making a final election provided that it is done within a reasonable time.  She was entitled to accept the repudiation on 18 May and if she did so, while she was labouring under a mistaken belief, that takes the matter no inch further.

	It has been urged before us that there was a further fundamental breach in that the appeal was not heard within 4 working days.  Even assuming that the appeal was out of time, we do not consider that in a contract of this nature time was of the essence, particularly in relation to the procedural rules.  One can test that in a simple way by asking the question whether the 3 day limit which is placed upon the employee, would be enforced in the same way and in our view the answer to that is obviously one would not expect an employee to abide precisely by that period of time and to have lost the remedy under the rules if such a time limit was not observed.

	We consider that the Tribunal does not seem to have had any considerable guidance from those appearing before it upon the question of whether they were entitled to look at matters after 18 May.  That Tribunal was still entitled to consider those matters upon the issue of whether the employer had done anything to rectify the position.  We have to say that we consider that the Tribunal was extremely restrained in the way it described what occurred at the so-called Appeal Hearing, and one trusts (and here I have had the assistance of the Industrial Members of this Tribunal) that one would not see an appeal conducted in this way ever again.

	For those reasons this appeal is rejected.