Appeal No.	 EAT/346/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 July 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MISS A MACKIE OBE

MRS J THOMAS	APPELLANT

BRITANNIA RESIDENTIAL HOMES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR GIFFIN
(of Counsel)
EMPLOYMENT LAW 
APPEAL ADVICE 
SCHEME
(ELAAS)	

	JUDGE PETER CLARK: 	This is an appeal by Mrs Thomas, the Applicant before the Liverpool Employment Tribunal against that Tribunal’s decision to dismiss her complaint of unfair constructive dismissal brought against her former employer, the Respondent Britannia Residential Homes Ltd.

1	The Appellant is a qualified auxiliary nurse.  In July 1989 she commenced employment as Care Manager of the Priory Residential Home for the Elderly at Birkdale, Southport.  In February 1997, the Respondent acquired the Priory and the business there conducted from the Appellant’s original employer.  Her employment then transferred to the Respondent.  Her line manager was Mrs Jackson, Operations Director of the Respondent’s sister company within the group, Britannia Health Care Ltd (Healthcare).  

2	Mrs Jackson was a qualified General and Mental nurse.  She had experience of working as an Inspector of Nursing Homes.  She had carried out research into staffing levels at such Homes at the former Leeds Polytechnic.  Since 1980 she had worked in the private sector, engaged in operating and running Nursing and Care Homes.  She was, the Tribunal found, very familiar with the statutory regulations made under the Registered Homes Act regulating the conduct of such homes.  She was also familiar with the National Guidelines on staffing levels for residential homes.

3	By letter dated 17 November 1997, the Appellant gave four weeks notice of termination of her employment.  She contended that that course had been forced on her by the Respondent, and listed 8 separate matters of complaint.  She did not physically work out her notice, but went sick from that date until her notice expired.  Thereafter, on 3 February 1998, she presented a complaint to the Employment Tribunal contending that she had been constructively dismissed for essentially the reasons contained in her resignation letter.  She then named Healthcare as Respondent.  At a preliminary hearing held before a Chairman, Mr A M Coventry, sitting alone at Liverpool on 20 April 1998, that Chairman directed that only the present Respondent was a proper Respondent to the proceedings.

4	The claim was resisted.  By their Notice of Appearance, the Respondent denied that the Appellant had been dismissed.  

5	The substantive hearing of the complaint took place before a full Employment Tribunal sitting at Liverpool under the Chairmanship of Mr E T Connelly on 22 June and 24 August 1998.  The Tribunal considered the case in Chambers on 5 October 1998, and by a decision with summary reasons promulgated on 2 November 1998, that Tribunal dismissed her complaint of unfair dismissal on the basis that she had not been constructively dismissed.  A separate complaint of unauthorised deductions from wages, with which we are not concerned, was upheld on concession by the Respondent.

6	At the Appellant’s request the Employment Tribunal promulgated a decision with extended reasons on 21 December 1998.  It is against that decision (the liability decision) that this appeal is brought.  A subsequent review application was dismissed by the Chairman under rule 11(5) of the Employment Tribunal Rules of Procedure by a decision dated 9 February 1999.

7	We bear in mind the principle laid down by the Court of Appeal, most recently in Mensah v East Herts NHS Trust (1998) IRLR 531.  The question on any further appeal is not whether this Appeal Tribunal is correct but whether the Employment Tribunal erred in law.  Accordingly, we shall not rehearse the detailed findings of fact by the Tribunal in the liability decision, which dealt with each and every one of the complaints raised by the Appellant.

8	We note, however, that where conflicts of fact arose between the accounts given in evidence by the Appellant on the one side and Mrs Jackson on the other, the Tribunal preferred the evidence of Mrs Jackson.  That was a matter for them as the fact-finding Tribunal.

9	We also have in mind the limits to our jurisdiction when considering an appeal against an Employment Tribunal’s conclusion in a case of constructive dismissal.  Whereas the question as to what are the terms of the contract of employment is a question of law, the further questions as to whether, for the purposes of section 95(1)(c) of the Employment Rights Act 1996, the facts as found by the Tribunal constituted a breach of contract, and if so whether that was a fundamental breach entitling the employee to treat herself as discharged from further performance, are essentially questions of mixed law and fact.  We can only interfere with such findings if the test of perversity is met.  It follows that this Appeal Tribunal will be extremely reluctant to interfere in such cases – see Woods v W M Car Services (Peterborough) Ltd (1982) IRLR 413 Court of Appeal, and the earlier judgment of Mr Justice Brown Wilkinson on behalf of Employment Appeal Tribunal in that case (1981) ICR 666.

10	In the present case the Employment Tribunal accepted that the term of the contract relied on by the Appellant, the implied term of mutual trust and confidence, did form a term of her contract of employment with the Respondent.  Against that background we turn to our task at this preliminary hearing which is to determine whether the appeal raises any arguable point or points of law which ought to proceed to a full appeal hearing.

11	The Appellant’s original ground of appeal is put in this way.  Section 7 of her contract of employment placed a duty on her to take reasonable care for the health and safety of herself and others.  She was obliged to acquaint herself with the Health and Safety and Fire Procedures at work.

12	One of her complaints, set out in her resignation letter was that the Respondent maintained inadequate staffing levels at the Priory, a matter which the Appellant had brought to their attention.  On 14 November 1997 a Miss Carragher, Principal Registration and Inspection Officer in Sefton Council’s Social Services Department, responsible for the home, paid an unannounced visit there.  She concluded that inadequate staffing levels were in place.  As a result she wrote to the Appellant the following day, drawing her attention to the current staffing arrangements and requiring her to correct the position, failing which the Authority may consider serving a Regulation 20 Notice on her.

13	The Appellant contends that service of such a Notice would have placed her in breach of the Health and Safety at Work Act and in breach of contract, and in particular section 7 of the contract to which we have referred.

14	In these circumstances, she contended, she had no alternative but to resign.  Had she not done so she might have been dismissed by the Respondent as being in breach of the terms of contract of her employment. 

15	The Tribunal’s findings on this allegation appear at paragraph 8(xix) – (xxi) of the liability decision reasons.  At subparagraph (xxi) they say this:

“Shortly after a copy of the above-mentioned letter [that is the letter from Miss Carragher] was received by the respondents Mrs Jackson telephoned Miss Carragher.  She informed her that she did not agree that the staffing levels then being maintained by the respondents at the Home were in breach of regulations.  Miss Carragher informed her that she could appeal on behalf of the respondents about this matter but the respondents should comply with the requirements which she had given to the [Appellant] until the appeal had been determined.  The respondents did make a written appeal against the staffing levels referred to by Miss Carragher in her letter.  Eventually this matter was resolved to the satisfaction of both Sefton Council’s Social Services Department and the respondents.”

16	In their final conclusions expressed at paragraph 12 of their reasons, the Tribunal say this:

“They [the Respondents] had not required the applicant to reduce staffing levels to a level which would have breached statutory requirements or statutory regulations nor had they been guilty of any conduct which put in jeopardy the applicant’s registration as the Manager with the Social Services Department.”

17	Mr Giffin, who today appears on behalf of the Appellant under the ELAAS pro-bono scheme, has modified that original ground of appeal by way of draft amendment to submit that the Tribunal failed to make relevant findings of fact as to whether the Respondent had in fact breached the requirements for staffing levels.  Secondly, were the Respondents in compliance with those requirements or not?  If not, was that a serious matter undermining the term of mutual trust and confidence?

18	We cannot accept that submission.  It seems to us that the Tribunal’s conclusion at paragraph 12 is a permissible finding based on their earlier findings of fact.  They accepted Mrs Jackson’s evidence that the requirements had not been breached.  That is sufficient.

19	In addition to that ground of complaint, Mr Giffin seeks to raise two further matters by way of amendment.

20	First, that in dealing with the Appellant’s complaint that the Respondent had not been forwarding her deducted pension contributions to the pension provider, the Tribunal overlooked the fact that she had brought the matter to the attention of the Company’s accountant, Mr Anderson.  The Tribunal merely record at paragraph 8 (xii) of their reasons, that the Appellant did not raise that matter with Mrs Jackson.

21	In our judgment that was a material finding.  The failure to pay over the contributions was, the Tribunal found, due to an administrative error.  If it was a matter of such seriousness to the Appellant, the Tribunal would have expected her to have raised it with her line manager.  This was not a case of wilful failure on the part of the Respondent.  

22	Second, he refers to the Appellant’s complaint about abuse from creditors directed to her over late payment of accounts following the Respondent’s take-over of the business.  Again, the Tribunal found, she did not see fit to raise that matter with Mrs Jackson until her letter of resignation.  The same comments which we made in relation to the first point apply equally here.

23	Having listened to the way in which the case is put by Giffin today, we are not persuaded that there are any grounds in law for interfering with the Tribunal’s overall conclusion that, on the facts, the Appellant had not made out her case on the breach of the implied term of mutual trust and confidence.  However attractively it is put by Mr Giffin, this really is an appeal on fact, not law.  In these circumstances, we must dismiss the appeal at this stage.