Appeal No. UKEAT/677/93

EMPLOYMENT APPEAL TRIBUNAL
11 MELVILLE CRESCENT, EDINBURGH EH3 7LU

	At the Tribunal
	On 24 January 1994

Before
HIS THE HON. LORD COULSFIELD
MR J LANGAN MR
A J RAMSDEN

ALEXANDER RUSSELL Plc	APPELLANTS

COLIN HOLNESS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr C Forbes, Solicitor
of-
Messrs Anderson Fyfe Solicitors
90 St Vincent Street 
GLASGOW G2 5UB	
For the Respondent	Miss L M Shand, Advocate 
Instructed by -
Messrs Allan McDougall & Co SSC 
Solicitors & Estate Agents 
3 Coates Crescent 
EDINBURGH EH3 7AL	

LORD COULSFIELD: 
1.	The respondent was employed by the appellants in their quarry at Cowieslinn, as a plant operator, from June 1986 until 8 November 1991. On that date, he came to the conclusion that he was being harassed and would be dismissed very shortly and, accordingly, gave in his notice. He made an application to an Industrial Tribunal, alleging that he had been constructively dismissed. By a decision dated 5 August 1993, the Industrial Tribunal held that the respondent had been dismissed and made a monetary award, which took account of a contribution on the respondent's part to his dismissal, which the Industrial Tribunal assessed at 30 per cent.
2.	The circumstances which led to the respondent giving in his notice are fully narrated by the Industrial Tribunal, but it is not necessary for us to recite them in detail. The respondent had a poor time-keeping record, and had been late for work on a number of occasions, even before the medical problems to which we are about to refer. In August 1991, he was absent from work for some weeks for a urological operation. The operation was not entirely successful and, after the operation, he had to take urine and blood samples to the hospital on a number of occasions. This led, without fault on the part of the respondent, to a number of occasions of lateness. The Industrial Tribunal accept that it was important for the employers that employees should arrive on time, and that they should communicate with the employers if they were to be late. On a number of occasions, the respondent was taken to task by the quarry manager, Mr Whitson. The Industrial Tribunal find that Mr Whitson spoke forcefully to the respondent, and that he did not accept the taking of specimens to hospital as a justifiable reason for lateness. On 5 November 1991, Mr Whitson issued a written warning to the respondent in relation to his time-keeping. The Industrial Tribunal accepted evidence from the respondent that, when Mr Whitson gave the written warning, he spoke to the respondent like "a piece of junk". On the following day, the respondent was again late, although he had warned the chargehand, Mr Stevens, that he would be late on that day. He was called to a disciplinary interview, which led to the issue of a disciplinary report form and a final written warning, which stated that any further breach would lead to instant dismissal. On receipt of that warning, the respondent reached the view that he had no chance of keeping his job and, accordingly, submitted his notice.
3.	In the statement of reasons for the decision, the Industrial Tribunal correctly say that the first question for them to determine was whether there had been a dismissal, and they also correctly direct themselves, by reference to the case of Western Excavating (ECC) -v- Sharp [1978] IRLR 28, that the test is a contractual one. They then go on to consider a number of alleged breaches of the appellants' disciplinary procedure and reach the view that, although in certain respects the appellants' conduct might have been regarded as unreasonable, the breaches of the disciplinary procedure did not, of themselves, amount to breaches of contract going to the root of the contract and, accordingly, entitling the respondent to resign. They then proceed to consider the alternative submission on the part of the respondent that the appellants had acted in such a way as to breach the implied term of trust and confidence between employer and employee. With regard to this part of the case, the Industrial Tribunal say:-
"We are satisfied that Mr Whitson's attitude to the applicant's explanation for most of his late arrivals was one of disbelief and rejection. He was very dismissive about the applicant's need to attend the hospital with samples. It was clear that he disbelieved him, referring to his inability to rise in the morning. Yet Mr Stevens' evidence was that he knew about the medical needs. We are satisfied, taking the evidence of Mr Young and Mr Stevens, that he harried the applicant more than other employees. We are also satisfied that having given the applicant a written warning he was outraged that on the following two mornings he was again late. We had to consider whether in those circumstances it was oppressive to invoke the disciplinary procedure within 24 hours of the earlier warning. While in certain circumstances of grave misconduct this would not be so, we were satisfied that in this case the insistence by Mr Whitson, knowing of the applicant's problem, in giving a final warning without a longer period to see if there would be improvement, was an oppressive use of procedure.
The failure of Mr Kerr to allow the applicant to call his union official, the way that this was done and the failure to alert him to his right of appeal, seemed to us to add to their oppressive use of the disciplinary procedure. Finally we noted the terms of the letter sent to him in which it stated that any further breach "is instant dismissal". The applicant took this to mean, rightly we are satisfied in the circumstances, that a few minutes lateness would result in his dismissal.
The applicant has claimed that all these actions by Mr Whitson and Mr Kerr were such as to cumulatively undermine the trust and confidence and that they fundamentally breached an implied term in his contract. Having considered the evidence carefully we are satisfied that the respondents had fundamentally breached the contract in this way and that the applicant was entitled to resign without notice. We are satisfied that he was dismissed in terms of s.55(2)(c) of the 1978 Act."
4.	On behalf of the appellants, it was submitted that the Industrial Tribunal had failed to apply the contractual test, or at least to apply it correctly, and that the Industrial Tribunal had not been entitled to find that the respondent had been constructively dismissed. It was pointed out that the Industrial Tribunal had found that the respondent had been a poor timekeeper, even apart from the medical problems which had arisen, and had assessed his contribution to his dismissal at 30 per cent, which was a very significant figure. They had also found that the question of time-keeping was important to the appellants' business. Further, the Industrial Tribunal had found that the various breaches of, or departures from, disciplinary procedure had not per se amounted to fundamental breaches of contract on the part of the appellants. So far as the particular matters founded on by the Industrial Tribunal were concerned, it was not surprising that the respondent had been criticised more than other employees because of his poor time-keeping. There was no implied term in the contract that the employer had to accept that the employee would be late for work, and the harrying of the respondent and the dismissal of his explanations had not amounted to conduct falling foul of the contractual test. In taking account of matters related to the disciplinary procedure, such as the fact that a final written warning had been imposed within 24 hours of a first warning, the Industrial Tribunal had flown in the face of the contractual test because the employer had merely been invoking the disciplinary procedure. The same could be said of failure to allow a union official to be present, and to the failure to alert to the right of appeal. All the matters founded on by the Industrial Tribunal might have amounted to reasons for holding that a dismissal was unfair had there been an actual dismissal. In the present case, however, the terms of the contract were detailed and it was only apt to found upon an implied term where there were gaps in the contract which required to be filled. Further, the Industrial Tribunal had not been entitled to hold that the final warning could be construed as an indication of dismissal for lateness whatever the reason might be and, therefore, that the respondent had no chance of keeping his job. That was merely speculation on the part of the Industrial Tribunal. For the respondent, it was submitted that the Industrial Tribunal had correctly directed itself, and reference was made to the Western Excavating case and to Woods -v- W M Car Services [1981] IRLR 347, [1982] IRLR 413, and Lewis -v- Motorworld Garages Ltd  [1985] IRLR 465. A fundamental breach of the implied term of trust and confidence could arise from accumulation of instances of conduct none of which would, in itself, amount to a repudiatory breach. The question whether there was such a breach was one for the Industrial Tribunal to consider as a matter of fact: Pedersen -v- The London Borough of Camden [1981] IRLR 173; Millhrook Furnishing Industries Ltd -v- Mcintosh & Others [1981] IRLR 309. No attempt had been made to show that there was no material before the Industrial Tribunal on which they were entitled to reach a conclusion, and it had been accepted that they were entitled to hold that the employers had not acted fairly. It was not shown that any wrong test had been applied and, in regard to the question of what would have happened if the respondent had stayed on and been late again, there had been ample evidence before the Industrial Tribunal to entitle them to reach their conclusions.
5.	In Lewis -v- Motorworld Garages Ltd supra, Glidewell LJ summarised the relevant principles of law very clearly. After referring to Western Excavating Ltd -v- Sharp supra, he said:-
"(b) However, there are normally implied in a contract of employment mutual rights and obligations of trust and confidence. A breach of this implied term may justify the employee in leaving and claiming he had been constructively dismissed	
(c) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so	
(f) The decision whether there has been a breach of contract by the employer so as to constitute constructive dismissal of the employee is one of mixed law and fact for the Industrial Tribunal."
6.	In the light of those principles, it is, in our view, clear that the appellants in the present case have not demonstrated any error on the part of the Industrial Tribunal which would entitle this Tribunal to interfere with their decision. The Industrial Tribunal have correctly directed themselves as to the principles of law which are to be applied. They have taken account, as they were entitled to do, of the cumulative effect of a number of acts on the part of the employers, and have reached the conclusion that those actings amounted to oppression, entitling the employee to resign. In our view, there was clearly material before the Industrial Tribunal which entitled them to reach that conclusion. Similarly, they were, in our opinion, entitled to conclude that had there been any further lateness on the part of the employee that would, whatever the reason might have been, have led to instant dismissal. In all the circumstances, therefore, we see no ground for this appeal and it is, accordingly, dismissed.
7.	Counsel for the respondent sought an award of expenses on the ground that this was an appeal which should not have been brought and which disclosed no question of law. It is, however, only in extreme cases that this Tribunal would be prepared to make an award of expenses and, although we have found that there was no substance in this particular appeal, we do not think that this comes within the class of cases in which an award of expenses would be appropriate.