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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McDowell v. Serco Ltd [2002] UKEAT 0381_01_0103 (1 March 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/0381_01_0103.html Cite as: [2002] UKEAT 381_1_103, [2002] UKEAT 0381_01_0103

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APPEARANCES

 

For the Appellant	Mr C QUINN (Of Counsel) Instructed by: Messrs Walker Morris Solicitors Kings Court 12 King Street Leeds LS1 2HL
For the Respondent	Mr A J KOLODZIEJ (Of Counsel) Instructed by: Messrs Close Thornton 2 duke Street Darlington Co Durham DL3 7AB


 


MR JUSTICE HOLLAND

1. This is an appeal from the decision of an Employment Tribunal sitting at Leeds which Decision together with Extended Reasons were sent to the parties on 24 January 2001. The issue is constructive dismissal.
2. The Applicant, the present Appellant was employed by the Respondents; employment started in November 1994. As from 1 September 1995 he was a technical manager acting as such at a site, RAF Fylingdales. The Respondents' activities at the site were to do with the provision and maintenance of a sophisticated radar system and were subject to the overall control of a project manager. At all material time from March 1996 onwards that manager was a Mr Hugh Morgan.
3. On any view, issues arose affecting the Appellant and grievances were raised in the course of 1999. Crucially for present purposes and on 2 February 2000 he wrote the following letter to Mr Morgan:

"Dear Sir

I write further to Neil Hayward's letter of 27 January 2000.

I first raised my concerns with you regarding the Company's actions in unilaterally removing a significant part of my role on 17 August 1999.

You did not address my concerns and indeed reacted in an extremely aggressive, bullying and threatening manner towards me which resulted in my being certified unfit for work due to stress and anxiety for some 3½ months. Your unilateral variation of my terms and conditions of employment and your behaviour towards me amounted to serious and fundamental breaches of my contract of employment which justified my immediate resignation.

Your response left me with no alternative but to invoke stage two of the Company's grievance procedure, this I did by my letter of 7 October 1999. My invoking the grievance procedure was without prejudice to my statutory and contractual rights and did not waive the breaches of contract set out above. I reserved my position in this regard.

The Company has failed to effectively address my grievance despite being given two opportunities to do so.

Neil Hayward's most recent letter provides ample evidence of this. The following points are clear:-

1. The issue of the relationship of myself and my staff to the USAF Logistics Personnel first raised on 17 August 1999 has not been addressed at all.

2. Since my return to work in January 2000 it is clear that my role has been eroded further in the following areas:-"

He then sets out some 5 areas that of matter of concern. He goes on:

"The Company has chosen not to take any effective action in relation to your conduct which resulted in my being absent from work for over 3½ months due to the stress and anxiety caused by such behaviour.

As the Company have taken no effective steps to remedy the serious and fundamental breaches of contract which formed the basis of my grievance, I have no alternative but to accept the Company's breaches of contract and resign my position with immediate effect.

I look forward to receiving my salary payment to today's date, together with payment for my 50 days holidays accrued but not taken as at today's date, payment for an outstanding BER and my P45 at your earliest opportunity.

I have cleared my personal belongings from my office and left my Company vehicle and keys at MT."

This letter undoubtedly served to terminate his employment and raised the issue as to whether he was or was not the subject of constructive dismissal, hence the complaint as heard by the Employment Tribunal in Leeds over a period of some 4 days.

4. In the course of that hearing there was a development which provides the backcloth for this appeal. When the project manager Mr Hugh Morgan was giving evidence it came apparent that he kept a personal diary and that such covered the material period. He was allowed by the Tribunal to refresh his memory from it. Further, Mr Morgan permitted the parties to read its contents. From its content two features were to be noted and ultimately relied upon by those advising the Appellant. The first feature was as follows. Mr Morgan plainly had from time to time difficulties in his relationship with the Appellant and he reflected this by letting off steam when making diary's entries, typically 'I will bloody kill him'. There were other such in the same vein.
5. The second feature amounted to the following. There were entries in the diary which were consistent with errors in the concurrent conduct of the grievance procedures relating to the Appellant. We say with respect to those advising the Appellant 'relied upon'. Presumably Mr Morgan was cross-examined on these entries in the course of his oral evidence but it is apparent that, on behalf of the Appellant, Mr Quinn additionally relies upon this diary as having some free-standing evidential significance.
6. Returning then to the judgment of the Employment Tribunal as expressed in the Extended Reasons, we would like to say that, without in any way prejudging Mr Quinn's criticisms, that its format and style have impressed all three members of this Tribunal. Were that more Extended Reasons were of this calibre.
7. Turning then to its content in detail we start with paragraph 16 which reads as follows:

"These are the findings of fact which we make. We have to apply those facts to the law. This is a case where the applicant relies upon the provisions of s.95(1)(c) of the Employment Rights Act 1996. In such cases, the Tribunal is guided by the decision of the Court of Appeal in the case of Western Excavating (ECC) Limited v Sharp [1978] IRLR 27 and in particular the judgement of Lord Denning. Pursuant to that judgement, in a case of constructive dismissal, the Tribunal has to be satisfied that the applicant has established that there has been a breach of his contract of employment, that the breach is of a fundamental term, that the applicant resigned in response in response to that breach and that he resigned promptly."

8. We interpose to remind ourselves that section 95(1)(c) of the Employment Rights Act 1996 specifies as follows:

"(1) For the purposes of this Part an employee is dismissed by 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."

9. It is helpful further at this stage to reiterate the guidance given by Lord Denning that had been referred to by the Employment Tribunal. We have found it helpful to go to the guidance that is given on the basis of this authority in Harvey which is cited in the Respondents' skeleton argument in these terms:

"In order for the employee to be able to claim constructive dismissal 4 conditions must be met:

(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

(2) That breach must be sufficiently important to justify the employee resigning or else it must be the last in the series of incidents which justify his reasons for leaving

(3) He must leave in response to the breach and not for some other unconnected reason

(4) He must not delay too long in terminating the contract in response to the employer's breach otherwise he may be deemed to waive the breach and agreed to vary the contract."

10. We return to the Extended Reasons and paragraph 17. This reads:

"As already stated, the originating application sets out what those breaches are alleged to be. In the course of the hearing and in his final submissions, Mr Quinn, for the applicant, has sought to add to those alleged breaches by raising further breaches arising out of criticism of the procedures followed by the respondent in dealing with the applicant's grievances. It may well be that that criticism has some merit but it is clear that any knowledge of those further alleged breaches cannot have been in the applicant's mind when he resigned. Indeed much of what is now relied upon in that regard only came out at a late stage in the evidence before the Tribunal almost a year after the resignation. In no way could this later acquired information have been in the applicant's mind at the time he resigned. As this is so, it cannot be that the applicant resigned in response to those matters. The nearest that the applicant comes to impugning the grievance procedure in his letter of resignation and his originating application is by stating that the respondent failed to address his grievance, i.e. to give him the result he wanted. That is very far from the case now advanced that it was at least in part faults in the procedure which caused him to resign."

11. Paragraph 18 also merits full recital:

"We are mindful of the fact that, in hindsight, the way in which the respondent went about considering and ruling upon the applicant's grievances no doubt could and perhaps should have been better handled. We are also mindful of the authorities drawn to our attention by Mr Quinn regarding the failure of an employer properly to have in place or properly to implement a procedure for dealing with grievances. Giving full weight to all those matters and authorities, we are still of the view that we should confine ourselves to the issues upon which the applicant placed reliance at the time he resigned and which he set out in his letter of resignation an re-iterated in his originating application, namely:

a) the respondent unilaterally reduced the applicant's role, duties and responsibilities;

b) the respondent acted in breach of its implied duty of trust and confidence towards the applicant;

c) the respondent failed to provide a safe working environment for the applicant;

d) the respondent failed to address the applicant's grievance whether effectively or at all."

We may add that those four respective matters were quoted by the Tribunal directly from the ET1.

12. In paragraph 19 the Tribunal proceeded to make findings with respect of all four matters. It is not presently necessary for us to recite the way in which it dealt with item (a) nor (b) nor (c) suffice it to note with respect of each matter the finding was against the appellant. Its finding with respect to (d) does repay reading:

"As a result of information which has emerged long after the event, it is clear that the way in which the respondent addressed the applicant's grievance in relation to various matters did leave much to be desired but, at the time that the applicant resigned, he was not aware of matters which have come out in the course of evidence. The applicant made it plain throughout that the only way in which his grievance could be addressed effectively was for Mr Morgan to be removed from his post. We have already indicated that we can find no reason to justify such action on the part of the respondent. Nothing done by Mr Morgan, in the view of the Tribunal, can be regarded as improper or in breach of the applicant's contract of employment. Why then, should the respondent accede to the applicant's request and remove Mr Morgan from post? To have done so may well have been a breach of Mr Morgan's contract. However, the failure of the respondent to do that which the applicant required, cannot in the view of the Tribunal be seen as a breach of the applicant's employment."

13. The final view of the Tribunal appeared from the next paragraph, paragraph 20:

"For all the foregoing reasons, the Tribunal is not satisfied that the applicant has established that there was a breach of contract in respect of which he resigned. It is true, on the evidence that there was almost certainly a breach of the applicant's contract of employment but the applicant was not aware of this breach at the time he resigned and therefore he cannot be said to have resigned in response of that breach.

In those circumstances the complaint before the Tribunal must fail."

14. Where if at all did things go wrong? Mr Quinn forcefully complains that the terms of paragraph 17 already cited in this judgment amounted to a misdirection in law. He submitted that by way of those terms the Employment Tribunal was in effect excluding from its deliberation the material that has been discovered subsequent to 2 February 2000 and in particular excluding from its deliberation the diary.
15. It was unfortunate (and here we agree with Mr Quinn) that he was not given forewarning that this would be the stance of the Employment Tribunal so that he could make submissions about it. Had he had that forewarning, says Mr Quinn, he would have submitted strongly to the contrary. With the diary given its full weight, the fact and the significance of the Respondent's breaches of contract would have been established so as to reinforce his case.
16. In our judgment the issue is simply an evidential one. As and when the Employment Tribunal was considering as to whether or not the Appellant's contract of employment had been breached then evidence that is probative should be taken into account and it matters not at what stage such evidence comes to light. The Employment Tribunal hearing was specifically for the purpose of taking evidence and it was in the course of that hearing that Mr Morgan produced and was cross-examined on his diary. There was thus some evidence and on the face of it that evidence had potential probative significance with respect of the first of the issues identified by Harvey namely as to whether or not there was a breach of contract by the employer. It further had potential relevance to the second matter raised by Harvey, that is, as to the importance of that breach.
17. Turning however to the third matter raised by Harvey, and that is the subjective consideration as to the circumstances in which the Appellant wrote his letter of resignation and terminated his employment, then that diary could not have any probative significance at all. It was after all a document that he had never received as at 2 February. It was a document that he did not see until the course of the hearing. It was a matter that was entirely out with his knowledge as at 2 February just as for that matter was Mr Morgan's evidence whether set out in witness statement or as it emerged orally in the witness box.
18. In our judgment this analysis of the matter as an evidential issue reflects that which in the event was the subject of the Employment Tribunal's direction to itself as set out in paragraph 17. It further reflects the way in which the Employment Tribunal thereafter approached the matter. In paragraph 19, subparagraph (d) as cited above it is using all the evidence, such presumably including Mr Morgan's oral evidence as tested by reference to his diary, to concede that potential support is available for the Appellant on issue No (i) and for that matter issue No (ii). But in the balance of that subparagraph, and more importantly in paragraph 20 it is pointing out that the consequences of the limited evidential scope afforded by such evidence are such that it cannot impact at all on issue No (iii).
19. That was the approach of the Employment Tribunal. It is an approach that reflects our own analysis of the position and in the upshot we cannot in any way impugn its judgment. This appeal must fail. We may add that as a Tribunal we have not found the diary of great potential significance least so far as it is supposed to evidence bullying behaviour, but we emphasise it is not for us to make those sorts of judgment and we do know the potential that it had for impact upon consideration about the grievance procedure, which impact plainly was acknowledged by the Employment Tribunal in paragraph 19(d).