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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Adebowale v. MHL Support Plc [2003] UKEAT 0789_03_0711 (7 November 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0789_03_0711.html Cite as: [2003] UKEAT 789_3_711, [2003] UKEAT 0789_03_0711

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APPEARANCES

 

For the Appellant	The Appellant in person


 


THE HONOURABLE MR JUSTICE KEITH

1. The Appellant, Ale Adebowale, was employed by the Respondent, MHL Support PLC ("the Company"), from 10 September 2001. After a few months, he resigned. He presented an Originating Application claiming that his resignation had amounted in law to his constructive dismissal, that his constructive dismissal had been unfair, that he had been subjected to unlawful discrimination on the ground of his race, and that in various respects the Company had acted in breach of his contract of employment. An Employment Tribunal in Shrewsbury upheld one of his claims that the Company had acted in breach of his contract of employment by failing to pay him the expenses to which he was entitled, but it dismissed the remainder of his claims. Mr Adebowale appealed against the dismissal of those claims, and that appeal was ordered to be set down for a preliminary hearing. This is the Appeal Tribunal's judgment following that preliminary hearing.
2. Mr Adebowale is a British citizen of Nigerian origin. He is black. He qualified as both a barrister and a solicitor, and the Company employed him for those qualifications, because it provides various services to employers, including advice on employment law and health and safety issues, and representation in Employment Tribunals.
3. Shortly after his employment commenced, Mr Adebowale had a brief period of sick leave, but from 9 November 2001 until 30 January 2002, he was given leave of absence to enable him to attend to litigation which he was pursuing against his previous employer. He was paid during that period of leave of absence, though not at the level of his annual salary. He returned to work on Wednesday 30 January 2002. He worked that day and the next, but he took Friday 1 February off, complaining of exhaustion. He worked during the week commencing Monday 4 February, but on Friday 8 February, he submitted a letter of resignation with effect from the end of the period for which he was required to give notice. Since he was required to give three months' notice, his letter of resignation took effect on 8 May 2002. He was off sick during the following week, i.e. the week commencing Monday 11 February, but when he returned to work on Monday 18 February, either on that day or a day or two later, it was agreed that he did not have to work what the Tribunal called "the remainder of his period of notice", and he was paid what the Tribunal described as "a sum in lieu of notice equivalent to his net earnings".
4. We deal first with Mr Adebowale's claim that he had been unfairly dismissed. Since he had not been employed by the Company for a year, he had to bring his case within one of the exceptions to section 108(1) of the Employment Rights Act 1996 identified in section 108(3). Of the sections referred to in section 108(3), Mr Adebowale relied on section 100(1)(c). He contended that he had brought to the Company's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety.
5. His case on his complaint of unfair dismissal was that on his return to work on 30 January he was given an extremely heavy workload. It included a case which was due to be heard in the Employment Tribunal on 5 February (the "Z Case"), and which had only been given to him on the day before. Mr Adebowale felt under considerable pressure in preparing the Z Case and ultimately the client took it over. The workload put Mr Adebowale under such intolerable pressure that he claims that eventually he had no option but to resign.
6. In dismissing his claim, the Tribunal said that Mr Adebowale was highly qualified, and with a salary of £40,000 a year, he was well paid. As head of the Company's Litigation Department, and as someone who was being considered for appointment to the Company's Board of Directors, his post inevitably attracted a good deal of pressure. The Company had not placed an intolerable burden upon him. Such difficulties as Mr Adebowale encountered on his return to work had, so the Tribunal found, been primarily due to his failure to prepare himself adequately for the resumption of his workload when he did return to work. His resignation could not therefore be construed as his dismissal because the Company had not acted in breach, let alone in fundamental breach, of his contract of employment.
7. The Tribunal's reasoning is attacked by Mr Adebowale on four grounds. First, Mr Adebowale claims that the way the Company treated him in the aftermath of the Z Case was very different from the way it had treated another employee, Kevin Wilford. That difference in treatment amounted, so Mr Adebowale claims, to a breach by the Company of the trust and confidence which underpins all contracts of employment. Specifically, Mr Adebowale claims that, whereas he had been rebuffed when he had requested a meeting following the Z Case and had been required to prepare a formal report about what had happened, Mr Wilford had been seen immediately and had been given reassurances about his future following a case which Mr Wilford had previously handled but which he had lost.
8. The Tribunal referred to the allegation that Mr Adebowale had been treated less favourably than Mr Wilford, but it did not set out in its Reasons the details of what form that difference in treatment had taken. That may have been because the point was not stressed in the Tribunal. The form which the difference in treatment took was not referred to by Mr Adebowale in his letter of resignation, and it was not referred to by him in the detailed grounds attached to his Originating Application. But if the point was taken in the Tribunal, the Tribunal must be taken to have rejected the argument that a difference in treatment between Mr Adebowale and Mr Wilford amounted to a fundamental breach of Mr Adebowale's contract of employment. The Tribunal specifically referred to the fact that Mr Wilford had been Mr Adebowale's junior, and it made findings about why there might have been concern over Mr Adebowale's handling of the Z Case. The client had had an expectation that the case would be dealt with in a particular way. The Tribunal found that Mr Adebowale gave the client different advice. In the circumstances the client decided to represent itself, and it won the case. That, no doubt, was the difference in treatment between Mr Adebowale and Mr Wilford which the Tribunal had found. In our judgment, it is not arguable that the Tribunal's finding on this topic was flawed.
9. Mr Adebowale also complained in the Further and Better Particulars which he had provided the Tribunal with that when Mr Wilford resigned, Mr Wilford was asked to work out his period of notice, whereas when Mr Adebowale resigned, he was not. It is true that that was different treatment if it occurred, but the difference in treatment could not have caused Mr Adebowale to resign because this difference in treatment occurred only after his resignation.
10. Secondly, Mr Wilford had been preparing the Z Case in Mr Adebowale's absence. Mr Adebowale claims that he was required to appear in the Z Case, despite the client not having been told of the change in advocacy, and despite Mr Adebowale not having been told that Mr Wilford had refused to appear in the case, even though Mr Wilford had been available on the day of the hearing. The Tribunal did not refer to this allegation in its Reasons, but that too may have been because the point was not taken in the Tribunal. The claim that the client was not told about the change in representation was contradicted by Mr Adebowale himself, because in paragraph 20 of the grounds attached to his Originating Application, he said that Mr Wilford had informed the client about the last minute change in advocate. And as for Mr Adebowale not being told about Mr Wilford's refusal to appear in the Z Case even though Mr Wilford was available, that was not referred to in either Mr Adebowale's letter of resignation or in the grounds attached to the Originating Application. If the point was taken in the Tribunal, the Tribunal must therefore be regarded as having rejected it. Indeed, in our view, even if the facts were as Mr Adebowale claims they were, they could not by themselves have amounted to a fundamental breach of his contract of employment.
11. Thirdly, Mr Adebowale claims that the Tribunal found that he had brought his health and safety concerns to the Company's attention. The criticisms which are therefore made of the Tribunal are, first, that it failed to record an admission said to have been made by one of the Company's witnesses that the Company had not acted on that complaint, and secondly, that the Tribunal failed to find whether any remedial action had been taken by the Company. We reject the premise on which those criticisms of the Tribunal were based. The Tribunal did not find that Mr Adebowale had brought his health and safety concerns to the Company's attention. In the passage in the Tribunal's reasons on which Mr Adebowale relies (paragraph 13), the Tribunal did no more than state that Mr Adebowale was claiming that he had brought those concerns to the Company's attention. The Tribunal mentioned that in order to explain the basis on which Mr Adebowale was asserting that he could bring a claim of unfair dismissal, even though he had been employed by the Company for less than a year.
12. Fourthly, Mr Adebowale claims that the Company surreptitiously prepared a performance review on him which contained unjustified criticisms of him. He claims that the review was intended to undermine him, even though the Company purported to justify it in the Tribunal on the basis that the Company needed to know whether he should be appointed to the Board. The Tribunal did not refer to this allegation in its Reasons. Again, that may have been because the point was never taken in the Tribunal. Mr Adebowale did not refer to it in his letter of resignation, and again it was not referred to in the grounds attached to the Originating Application. The former was explained to us today by Mr Adebowale. He had not been provided with a copy of the performance review by the time of his resignation, and at that stage he did not even know that it had been prepared. On that basis, the preparation of the performance review had not contributed at all to the reasons for his resignation, and therefore there could not have been a causal connection between that performance review and his resignation. It follows that he cannot rely upon the performance review as an act which constituted a breach by the Company of the fundamental term of trust and confidence which underpins all contracts of employment.
13. For these reasons, we have not discerned any error of approach on the part of the Tribunal in its consideration of Mr Adebowale's claim for unfair dismissal.
14. We turn to Mr Adebowale's case of racial discrimination. His complaint was that he had been treated less favourably than Mr Wilford and another employee on racial grounds. The Tribunal found that Mr Adebowale had not been treated less favourably than Mr Wilford, and that is the finding which Mr Adebowale challenges on this appeal.
15. Mr Wilford was alleged to have been treated less favourably than Mr Adebowale in two respects. They were set out in the Further and Better Particulars of his claim of racial discrimination which the Tribunal had previously required Mr Adebowale to provide. First, Mr Wilford had not had cases offloaded onto him in the way that the Z Case had been offloaded on to Mr Adebowale. Secondly, Mr Wilford had not been rebuffed by management and required to make a formal report when he had lost a case. He had been seen immediately and had been given reassurances about his future.
16. We have already dealt with the latter complaint when dealing with the first of Mr Adebowale's complaints about the Tribunal's decision on his claim of unfair dismissal. As for the former complaint, though, the allegation on analysis is not that the Company sanctioned cases being offloaded onto Mr Adebowale but did not sanction similar treatment for Mr Wilford. The allegation is that the Company did not criticise Mr Wilford when he offloaded the Z Case onto Mr Adebowale. But the Tribunal found that during Mr Adebowale's leave of absence, Mr Wilford had for almost three months been handling Mr Adebowale's caseload. Presumably the Tribunal found that it had not been unreasonable for Mr Wilford to hand the Z Case over to Mr Adebowale on Mr Adebowale's return to work. We have seen nothing to suggest a sensible basis upon which that finding can be challenged.
17. We turn finally to Mr Adebowale's claims that the Company had acted in breach of his contract of employment. Among the claims which the Tribunal dismissed was a claim that the sum which he was paid in lieu of notice should have been the equivalent of his gross earnings over the period to which his notice related and not his net earnings. Mr Adebowale is appealing against the dismissal of that claim.
18. Mr Adebowale claimed that the effect of section 188(1) of the Income and Corporation Taxes Act 1988 ("the 1988 Act") was to require the Company to make any payments to him in lieu of notice gross and free of tax. However, section 188 of the 1988 Act was repealed by the Finance Act 1998 ("the 1998 Act") in relation to payments or other benefits received on or after 6 April 1988 as here. The relevant provision is now section 148(1) of the 1988 Act which the 1998 Act substituted in its place, but section 148(1) of the 1998 Act does not help in this connection. It merely deals with whether the payments which were made to him, admittedly net of tax, are taxable in his hands. Section 148(1) shows that they are not.
19. If the Tribunal had decided that the effect of the agreement between Mr Adebowale and the Company was that he was simply not being required to work during his period of notice, the Company would have been right to pay him his salary net. On this supposition, his employment would not have ended on or about 18 February, but would have continued until the end of his notice period; he would simply have been relieved of the obligation to work during the remainder of his notice period. But this could not have been what the Tribunal decided because it described the payment made to him as "a sum in lieu of notice". What the Tribunal was finding, therefore, was that the ending of his employment had, by agreement, been brought forward to 18 February.
20. The question which then arises is whether there had been agreement as to whether the payment in lieu of notice should have been made gross or net of tax. Mr Adebowale told us that his case in the Tribunal was that it had been agreed that he would be paid that sum gross, but that was not what his Originating Application had said, nor is there any finding to that effect in the Decision of the Tribunal. Indeed, the documentary evidence suggests the contrary, because in a letter dated 30 April 2002 to Mr Adebowale from Mr Michael Davis, the Company's accountant and Company Secretary, Mr Davis said that at the meeting in the week of 18 February, he had said that "any payment would be on a 'net pay' basis and would not be subject to tax or National Insurance."
21. Our reading of the letter, particularly the reference to payment on a "net pay" basis, is that he was saying that that was what had been agreed. The reference to "subject to tax or National Insurance" meant that Mr Adebowale would not have to pay tax or National Insurance on that payment because it had already been paid, but as we say, the Tribunal does not appear to have made any finding one way or the other as to whether or not such an agreement had been made. Plainly it did not make a finding that there had been an express term to that effect, and we do not think that it would have been open to it to make a finding that there had been an implied term of Mr Adebowale's contract of employment that he would be paid gross rather than net. In the absence of an agreement to the effect that he was entitled to be paid the sum in lieu of notice gross and free of tax, there is no basis upon which the Company was required in law to pay him it gross. It follows that the Tribunal's finding that the Company was entitled to pay him his salary net is one that cannot be challenged.
22. For these reasons, we have concluded that there are no arguable grounds of appeal to go forward to a full hearing. Accordingly, this appeal is hereby dismissed.