Appeal No.	 EAT/69/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 May 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
LORD GLADWIN OF CLEE CBE JP
MR J A SCOULLER

WALTONS & MORSE	APPELLANTS

MRS JILL DORRINGTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR MARTIN GRIFFITHS
(of Counsel)
Messrs Eversheds
Solicitors
Senator House
85 Queen Victoria Street
London
EC4V 4JL	
For the Respondent	THE RESPONDENT IN PERSON	

	MR JUSTICE MORISON (PRESIDENT):   This is an appeal against a unanimous decision of an Industrial Tribunal held at Stratford. That decision was promulgated and sent to the parties following a three day hearing, on 21st November 1996.

	The unanimous conclusion of the tribunal was that the applicant, Mrs Dorrington, had been unfairly dismissed by her former employers, Messrs Waltons & Morse, a well-known firm of solicitors, by whom she had been employed for some 11 years before she left her employment in circumstances in which the Industrial Tribunal concluded she was entitled to leave by reason of her employers’ conduct towards her.

	In what is a careful and well-structured decision, the Industrial Tribunal made the following findings which are relevant to the matters which we must consider on this appeal. 

	Mrs Dorrington has been employed by the firm as a secretary in the Shipping Department in July 1984, and for the first eight years of her employment she had no particular difficulty about her place of work. She worked in an area of their premises at Plantation House, Fenchurch Street, which was reasonably open and well-ventilated, so that as the tribunal put it “a tolerable air quality was maintained”. She was a non-smoker. She was working in a room with seven other secretaries, four of whom were smokers, three of whom like herself were not. 

	However, sometime in 1992, a decision was taken to relocate all those who worked in the Shipping group to make sure that they all were working adjacent one to another. The purpose of this move was designed to improve the efficiency of the group by trying to gather them together in one geographical area. The place which was chosen for this move was some distance from Mrs Dorrington’s former place of working and at the end of a corridor. In order to get to the place where the secretaries worked, one had to go past at least three rooms which were occupied by fee earners, all of whom were heavy smokers. There was a cigar smoker, a cigarette smoker and a pipe smoker. 

	It quickly became apparent to Mrs Dorrington that

“... the air quality in her new work place was much worse than in her former place and it was source of nuisance and discomfort her.”

She raised her concerns and, by December 1992, it had been minuted at a partners meeting that complaints had been received about this matter from non-smoking secretaries.

	From the employers’ point of view, this was a difficult problem for them to manage. The building was not modern, and it did not have any modern ventilation system; the tribunal say no “adequate ventilation system”. The premises were held on what was at that time a short lease which was due to expire, and there was speculation that the landlords intended to demolish the premises at some time in the unspecified future. Any alterations to the building would require the landlords’ consent, and obviously any decision over capital expenditure on the building would have to take account of the limited time remaining to the firm of solicitors in those premises. To add to their difficulties, the practice of Messrs Waltons & Morse was in a state of re-organisation and some retrenchment, in the sense that their overall profitability was dropping off.

	The smoke generated by the smoking activities of the fee earners would drift into the corridor and into the typing area, and of course the air in that area was made worse by reason of the fact that four of the secretaries were smokers. The tribunal found this:

“The result was that, for a non-smoker, the air was not of a reasonably tolerable quality. Some days were worse than others and, when Mrs Dorrington was particularly affected by the smoky atmosphere, she was allowed, by Mr Langley [her immediate superior], to leave the building for ‘fresh air’. She did not regard it as acceptable and she made her views known.”

	In due course the employers set up a working party which comprised smokers and non-smokers to review the firms’ smoking policies, and Mrs Dorrington made a written submission to them. The report of the working party which was produced as at 30th September 1994 was to announce for the first time a smoking policy which restricted smoking activities within the building. As we understand it, it had this effect, that as the eight secretaries worked in the same area, none of them was entitled to smoke there, but they were given a designated smoking area which was the shipping library, a room which was immediately adjacent to their work area. Those who had their own rooms, essentially the fee earners, were entitled to continue to smoke in those rooms. So that her position improved in one sense and was made worse in another. She was no longer having to share a work area with other secretaries who were smoking, but she now was working in an area which was immediately adjacent to a smoke filled room which was the smoking area, the shipping library. 

	The four non-smokers did not find this satisfactory and again they made representations within the firm to the effect that they were unhappy with their working conditions. Mrs Dorrington enquired if she could move and she was told that she could. But subsequently and very shortly thereafter she was told that she could not. She had reasonably misconstrued the smoking policy which the firm had introduced, largely because it was badly drafted.

	The tribunal said this:

“Mrs Dorrington was entitled to be, and she was, upset by this apparent reversal of a decision and she took matters up with Mr Geaney. Among the options she wished to consider was to work for someone else in another part of the building. Mr Langley was, throughout, supportive of Mrs Dorrington and he had made it clear that he could see no objection to a move along the corridor and where he could retain her services. The arguments against that were related to administrative convenience and efficiency and, if the freedom of those who chose to smoke in the shipping area were not to be further curbed, the balance lay firmly in favour of the proposed move. The little inconvenience which would have resulted was heavily outweighed  by the legitimate concerns of those non-smokers who sought a tolerable working environment; no reasonable employer, on the facts of the case, could have concluded otherwise.”

	In November 1994 the non-smokers took their concerns to a fee earner, a partner in the firm a Mr Charles-Jones, who was dismissive of their concerns and not prepared to accept that there was a problem. Accordingly, not have received any satisfaction from the way her complaints had been dealt with, Mrs Dorrington took the law into her own hands and moved down the corridor to a space which existed where she would be untroubled by the smoking habits of the members of the firm, namely, in particular, the shipping partners and the other secretaries.

	The employers tried to put the matter right by introducing some kind of fan, but that was so noisy that it was unacceptable to the people who had to put up with that noise, and in any event it appeared to suck into the secretaries area all the smoke which was emanating from the open doors of the offices occupied by each of the three heavy smokers in the Shipping Department.

	Subsequently the space which she had moved to was no longer available to her, and she was told that she would have to go back to where she had been before, in the context where the employers themselves had recognised that the library was not a satisfactory designated smoking area. So that effectively now she was being required to go back to a secretaries room where there was no smoking, but that was adjacent to the rooms which contained the three fee earners, and in a sense the old problem continued.

	She was upset by this change which had been inflicted upon her. The tribunal say:

“Mrs Dorrington was greatly upset by this development.”

She therefore had a discussion with her immediate superior Mr Langley, who tried to take the matter up on her behalf. But he reported back to her shortly thereafter that he had raised the matter at a higher level, but that:

“... there was no more to be done, and in effect, that she would have to put up with the situation or ‘do the other thing’.”

The tribunal said that there was no clear evidence as to when this indication was given to her, but looked at overall they were of the view that it probably occurred in April of 1995.

	She was distressed by this turn of events. There had been some suggestion that there might be a partition which could be erected, but by this time attitudes on both sides had hardened. Mrs Dorrington believed that her health was being adversely affected by her working conditions. She was not prepared to compromise her health. She believed that there was a real risk that if she was required to continue in a smoky atmosphere for any significant length of time her health would be put into jeopardy, and she felt her employers had failed to recognise properly their obligations towards her. She had worked for them for a period of some eleven years.

	She therefore decided to ‘do the other thing’, in others words to leave her employment, believing that she had no other choice.

	She set about obtaining alternative employment, and unsurprisingly found it easy to obtain it. With her experience she found another firm of solicitors in the City, who immediately offered her a job, and by 17th May 1995 she had agreed a start date with the new employers to begin as from 5th June 1995, and at the end of May 1995 she walked away from Messrs Waltons & Morse, indicating that the reason why she was going was because of their attitude towards her over the smoking issue.

	The Industrial Tribunal set out the argument which had been raised. Principally, it was the employers’ contention that they had not repudiated the contract, and even if they had done so, she had affirmed the contract by continuing to work on for the firm after she knew that the firm were not prepared to shift from their lately adopted policy, and that in those circumstances, if she had had a right to walk off and claim unfair dismissal, she had lost that right by delay and continuing to work on.

	The first question therefore for the Industrial Tribunal was to determine whether there had been a repudiatory breach of the contract of employment. The Industrial Tribunal reached this conclusion:

“We propose to hold that it is an implied term of every contract of employment that the employer will provide and maintain, a working environment which is reasonably tolerable to all employees. It is such an obvious requirement that a party to an employment contract, were they to address their minds to the point, would assume that such must have been intended to be the case. Such a term must apply to such matters as noise levels, smells and the quality of the air which the employees breathe; not to the same standard as may be expected of a Cotswold meadow in summer but to a standard which is reasonable bearing in mind the nature of the employers’ business and its location. In this case, it is the standard reasonably to be expected of offices premises in central London.”

	On behalf of Messrs Waltons & Morse, Mr Griffiths of Counsel has put forward a sustained argument in support of the appeal. He makes to us the submission that there is no such implied term of the sort which the tribunal asserted in sub-paragraph (4) which we have just cited. He points out that there is no reference to the practicability of an employer taking steps to make the working environment reasonable. He made a number of analogies which he said showed that the working of such an implied term would cause hardship and might even cause certain businesses such as coalmining to have to cease. He also pointed out that the implied term cannot be a term which refers to the duties of the employer owed to other employees. Employee X should have no right to complain merely because an employer has broken his duty to employee Y.

	It seems to us that there is force in the submission which he made to us as to the detail of the suggested implied term. It seems to us that a good starting point for the implication of a term of the sort that the tribunal had in mind is s.2 of the Health and Safety at Work Act 1974. It is to be stressed that this case was not concerned with health and safety, in the sense that there was no evidence before the Industrial Tribunal that being exposed to tobacco smoke is in fact injurious to the health of those who have to endure it. On the other hand, s.2(2)(e) of the 1974 Act is concerned with the employer’s duty to provide and maintain a working environment for his employees that is reasonably safe without risk to health and is adequate as regards facilities and arrangements for their welfare at work. In one sense, the right of an employee not to be required to sit in a smoked filled atmosphere affects the welfare of employees at work, even if it is not something which directly is concerned with their health or can be proved to be a risk to health. 

	It seems to us that to give effect to the points made by Counsel, we ourselves would be inclined to the view that the correct implied term to deal with the complaint in this case, is that the employer will provide and monitor for his employees, so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties.

	It seems to us that such an implied term is of the general nature of the sort which is referred to in the authorities. We do not need to consider the cases to which Mr Griffiths referred, which identify a number of circumstances in which terms may be implied into a contract. It seems to us that the position is well-known in the employment field, and it may involve general considerations beyond those which normally apply in other types of contracts.

	But it seems to us in any event that the Industrial Tribunal did not only put their decision on the basis of the breach of that term. In paragraph 4.(3) the Industrial Tribunal said this:

“The E.A.T., in W A Goold (Pearmak) Ltd v. McConnell [1995] IRLR 516 held that it is an implied term in a contract of employment that the employers will reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have. That was a fundamental right and a failure, promptly or properly, to address such a grievance might constitute ‘constructive’ dismissal.”

It has not been suggested to us that we ought to depart from that decision, or that decision is in some way flawed. 

	We turn therefore to the findings of the Industrial Tribunal against that background.

	They say in paragraph 5 which sets out their findings, that:

“(2) ... the inadequacies of the ventilation created a situation in which the air quality, to the reasonable standard of a non-smoker, was intolerable. The risks of ‘passive smoking’, as such a situation is commonly known, are so well known as to require no further proof. It is not sufficient, as the respondents sought to do, to balance the interests of smokers with non-smokers so that each was to be accorded equal weight. The choice of an individual not to smoke has not detrimental impact upon those in close proximity, whereas the reverse is not also true. It is, therefore, neither fair nor accurate to describe the curbing of the freedom to smoke as treating the non-smoker ‘more favourably’, as the respondents suggest.”

Secondly:

“(4)  The respondents throughout, have proceeded upon the assumption that the concerns which Mrs Dorrington had raised did not fall within their grievance procedure.”

The Industrial Tribunal concluded that:

“She had raised a matter about which she was reasonably entitled to feel concerned and the implied term, as identified above, required that the respondents timeously and properly dealt with it. They did not do so.”

One of the lay members of the Industrial Tribunal:

“... herself a self confessed ‘heavy smoker’, has observed that she could recall no instance, from a wide industrial experience, in which an employer had so leant in favour of accommodating a smoking lobby.”

The third finding was that:

“(5)  The air quality in the area in which Mrs Dorrington was required to work was not of a standard which was reasonably tolerable to a non-smoker.”

They considered that the employers had “tinkered” with the problem but had not confronted the real issue. 

“They were reasonably entitled to decide the deployment of their staff and to have regard to the requirements of efficiency and administrative convenience.”

But what they did:

“... was to place those considerations above the fundamental requirement that they provide a working environment which was reasonably tolerable ...”

They continue:

“If there really was no practicable solution, about which we were not persuaded, then it was the activities of the smokers which had to be curbed. To say to Mrs Dorrington, as the respondents did, - ‘There is no more to be done, accept it or leave’ - was, we consider, a breach of both the term as to the provision of a reasonably tolerable working environment and as to the proper addressing of the concerns which she had raised. That was a serious breach of a fundamental obligation of an employer and Mrs Dorrington reasonably concluded that she was being forced to resign; it was a repudiatory breach of such seriousness as to justify her in leaving at once.”

	Accordingly, as it seems to us, the Industrial Tribunal have effectively reached the conclusion that there was a reasonably practicable solution to the problem with which the employers were faced; namely, to indicate to the smokers that as there were no adequate ventilation facilities within the building and having regard to the particular circumstances of the location, they would not be permitted to smoke because it rendered the working conditions for the others quite unacceptable. Accordingly, as we understand it, they were satisfied that it was reasonably practicable for them to have provided her with a working environment which was suitable for the performance by her of her contractual duties, and conversely, that the conditions under which they were requiring her to work rendered them in breach of such an implied term.

	In addition, as we have indicated, they plainly were of the view that in any event, the employers had simply not addressed themselves properly to her grievance, but had misidentified her complaint as falling outwith the grievance procedure. They were critical of the employers in that respect, and that seems to us to be a finding which they were entitled to arrive at on the evidence before them.

	In those circumstances, although as we say we would depart from the Industrial Tribunal as to the precise formulation of the implied term, we are satisfied that on the findings of fact which they have made, which ever implied term there is, that is our version of it or that proposed by the Industrial Tribunal, the Industrial Tribunal have found as a fact that there was a breach.

	Mr Griffiths then sought to contend that the Industrial Tribunal were perverse in their findings, particularly in relation to the change in status of the Shipping library as a smoking room, and that the tribunal were perverse in their findings in relation to their conclusion that Mrs Dorrington had not affirmed the contract thereby disentitling her to walk away.

	We shall deal with the first point shortly. 

	With great respect to Mr Griffiths, we do not consider that the Industrial Tribunal have misunderstood the facts, although we accept that in short form, they appear to have related the change in policy in relation to the library to a rather later date than actually was the case. But it does not seem to us that any mistake which they may have made, (and we emphasise the word may), had any bearing whatever on their ultimate conclusion. It is right to acknowledge that the employers in this case did try to accommodate Mrs Dorrington’s concerns. What they failed to do was to treat her in a way which was appropriate, having regard to all the facts including her length of service.

	The question as to whether the tribunal misdirected themselves on the affirmation issue did cause us some concern. It seems to us that Mr Griffiths was entirely right to draw our attention to the decision in W E Cox Toner (International) Ltd v Crook [1981] ICR 823. In that case the Employment Appeal Tribunal presided over by Lord Browne-Wilkinson, said this at page 828E:

	“Although we were not referred to the cases outside the field of employment law, our own researches have led us to the view that the general principles applicable to a repudiation of contract are as follows. If one party (“the guilty party”) commits a repudiatory breach of the contract, the other party (“the innocent party”) can choose one of two courses: he can affirm the contract and insist on its further performance or he can accept the repudiation, in which case the contract is at an end. The innocent party must at some stage elect between these two possible courses: if he once affirms the contract, his right to accept the repudiation is at an end. But he is not bound to elect within a reasonable or any other time. Mere delay by itself ( unaccompanied by an express or applied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation. ... Affirmation of the contract can be implied. Thus, if the innocent party calls on the guilty party for further performance of the contract, he will normally be taken to have affirmed the contract since his conduct is only consistent with the continued existence of the contractual obligation. Moreover, if the innocent party himself does acts which are only consistent with the continued existence of the contract, such acts will normally show affirmation of the contract. However, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his right to accept the repudiation or in only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation.”

They considered the facts of the case as elicited by the Industrial Tribunal decision, and concluded that on balance the Industrial Tribunal had misdirected itself in arriving at that conclusion. The Employment Appeal Tribunal had regard to the whole history of the case, not least the fact that there had been earlier discussions between employer and employee, and the employee had had ample time to take advice on his position and to be advised, and six months to look for alternative employment.

	Mr Griffiths asked us to apply that authority and submitted that it should be applied. We also draw attention to a passage the latest edition of Harvey on Employment Law which says this:

“There is no fixed time limit within which the employer must make up his mind. It depends upon all the circumstances including the employee’s length of service, the nature of the breach and whether the employee has protested at the change. Mere protest will not however prevent an inference that the employee has waived the breach, although exceptionally a clear reservation of a right might do so. Where the employee is faced with giving up his job and being unemployed or waiving the breach, it is not surprising that the Courts are sometimes reluctant to conclude that he has lost his right to treat himself as discharged by the employer merely by working at the job for a few months.”

	In this case it is to be observed that the final position of the employers had been reached and communicated to the employee in April 1995, and she left their employment at the end of May, a matter of a very few weeks only. It is also to be noted that in the definition of dismissal in s.95 of the Employment Rights Act 1996:

“(1) ... an employee is dismissed his employer ... 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.”

It seems to us that that provision enables an employee to terminate his contract on notice, despite the fact that he is asserting that the employer has repudiated the contract of employment, Parliament has given statutory effect to the concern which is expressed in Harvey on Employment Law that an employee is faced with a difficult choice of giving up his job and being unemployed, or waiving the breach. In this case, as we have indicated, Mrs Dorrington very quickly found an alternative job, but she needs the money which she obtains from her employment because of her family commitments. It seems to us that in those circumstances, having regard to the length of service which she had with her employers, some eleven years, the tribunal were entitled to arrive at the conclusion that she had not affirmed the contract. The tribunal put it in this way at paragraph 5.(7):

“(7)  We were concerned at Mrs Dorrington’s delay in acting upon the breach. On balance, we have decided that it was not such as to amount to an affirmation of the contract. She informed her immediate boss that she was looking for another job and she had made clear that the working environment and the failure properly to address her concerns were the reasons for doing so. Her need to maintain her income was a factor which she was reasonably entitled to place in the balance. When she did leave she made crystal clear the reasons for doing so and she not, in the interval, given the respondents any reasonable grounds for concluding that she had decided to accept the situation.”

In those circumstances, we are unanimously of the view that that was a finding which was open to the tribunal on the evidence before them. 

	Mr Griffiths faced with a barrage of questions from the Employment Appeal Tribunal was, I think, forced to assert in the end that the real criticism of the Industrial Tribunal finding was that it did not set out the sequence of events which led to Mrs Dorrington obtaining alternative employment; and secondly, that when it became plain at the 17th May 1995 she had got a job which was due to start on 1st or 5th June 1995, the delay between 17th May and 31st May was quite unexplained.

	It seems to us with great respect to Mr Griffiths, that the fact that the Industrial Tribunal have not set out the history of her obtaining her new employment, does not vitiate what they have said or indeed their careful consideration of the balancing act which had to be performed. In paragraph 6.(2) of their decision, they have referred to the fact that Mrs Dorrington had “secured alternative employment before leaving the respondents and at a rate of pay which was no less favourable”. We can deduce from this that the tribunal had well in mind the sequence of events which led to Mrs Dorrington obtaining further employment with another firm of City solicitors. In those circumstances, it seems to us to be untenable to suggest that the tribunal in some way failed to take into account all the proper facts. 

	It seems to us that they have looked at the matter sensibly and, as we said at the outset, this a well-structured decision. We see no grounds for thinking that there is an error of law in it, despite the able arguments of Mr Griffiths to which we have not done full justice in this decision. Accordingly our decision is that this appeal be dismissed.

	MR JUSTICE MORISON (PRESIDENT):   In this case we have an application for leave to appeal, and consistent with our present practice, I intend to deal with it with reasons.

	It seems to us that this is not an appropriate case for leave to appeal to be granted. Whilst we understand that there may be an issue as to the extent of an implied term in relation to the issue of smoking, this is not an appropriate case to go to the Court of Appeal. Not least because, as it seems to us, the tribunal’s decision was posited on two specific repudiatory breaches, only one of which is covered by the implied term of the sort that Mr Griffiths has referred to.

	Secondly, it seems to us that in this case, bearing in mind that Mrs Dorrington’s losses are likely to be of a limited kind, because of her talents as a secretary and because she was offered alternative employment, it cannot be said that there is much financial interest in this particular case. 

	Accordingly, we refuse leave because we do not think that this is an appropriate case for us to give leave to appeal to the Court of Appeal. We would also like to add that it seems to us that the Industrial Tribunal should at an early date consider the question of compensation, if any, if the parties are unable to arrive at some accommodation, and we would not wish there to be any delay in the hearing of that complaint.