Appeal No.	 EAT/20/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 March 1998

Before
THE HONOURABLE MR JUSTICE BELL
MRS M E SUNDERLAND JP
MR G H WRIGHT MBE

MR I ALEXANDER-NEWLAND	APPELLANT

J & K AQUATICS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS MARY McCARTHY
(of Counsel)
Broomhead & Saul
3 Hammet Street
Taunton
Somerset
TA1 1QZ	

	MR JUSTICE BELL:      This is an ex-parte preliminary hearing in respect of an appeal by the Applicant/Appellant against the decision of an Industrial Tribunal held at Exeter on 15 September 1997.  The majority decision entered in the register was that the Applicant had neither been dismissed nor constructively dismissed and that his application for unfair dismissal therefore failed.

	The bare history is that the Applicant worked for the Respondent as a lorry driver.  On his return to the Respondent’s depot with his lorry on the evening of 14 May 1997 the Applicant had a consultation with Mr James, the Respondent’s Managing Director.  He told the Applicant to “fuck off” on a number of occasions and eventually to “fuck off home”.  The Applicant treated this as dismissal, that is termination of his employment by the Respondent.  He did not return to work and, despite a letter from Mr James a few days later asking him his intentions about his employment, he filed an Originating Application on 28 June 1997 claiming unfair dismissal.

	It appears from the last paragraph of the details of the Applicant’s complaint at pages 10 and 11 of our bundle, that he maintained that Mr James had terminated his employment but that, in any event, Mr James’ unreasonable and abusive behaviour towards him constituted a breach of the duty of mutual trust and confidence amounting to a repudiation of his contract of employment and thereby constituted constructive dismissal.

	The Tribunal’s extended reasons for its decision started by stating that the primary issue between the parties was whether the Applicant was dismissed at all.  They rehearsed section 95(1) of the Employment Rights Act 1996, which deals with dismissal by employer terminating the contract under which the employee is employed at paragraph (a), and with constructive dismissal at paragraph (b).

	It found detailed facts, including instances when the Applicant had jumped to wrong assumptions during his employment before May 1997.  It found two instances of a serious nature a week before the Applicant left when he was asked, quite illegally, to change the tachograph on his lorry.  At paragraph 9 of its extended reasons, the Industrial Tribunal said:

“The applicant on two occasions during that week had almost run out of driving hours.  On contacting Mr James he was told that he should put another tachograph disk in the machine so that it would record a different driver and Mr James would sign it when the lorry came in.  That, of course, is quite illegal.  Whilst we do not, by any means, condone the practice, it is of some significance that there was no objection on either of those occasions.  The incidents are significant to the issue we have to decide particularly in respect of the claim for constructive dismissal.”

	So the Industrial Tribunal clearly had those two matters in mind, so far as the claim of constructive dismissal was concerned.

	The decision then related the events of 14 May 1997 where there was the confrontation between the Applicant and Mr James.  At paragraph 12 the Industrial Tribunal said:

“On neither version was there any reference to being dismissed or having to stay at home.  When the applicant arrived home he told Mrs Cooksley [the lady with whom he lived] that he thought that he had been sacked and later, according to her, said ‘I am sure I have been sacked’.  There was obviously some uncertainty in his mind as to whether he had been sacked.”

	The Industrial Tribunal went on with the history, with Mr James thereafter trying to contact the Applicant, and the Applicant seeing his Solicitor.  It then considered the bad language which had been used, concluding from, no doubt, its own direct or indirect experience, that bad language in the situation where it occurred here was not as untoward as it might seem.  The Tribunal in fact said “As Mr Jones, the respondent’s solicitor pointed out, this was not the delicatessen counter at Harrods”.  It went on through other factors relating to what had happened on 14 May before finishing as follows:

“According to the applicant it was clear from the tone and words that he was not expected to return.
The words by themselves, although they could reasonably cause offence to many people in other circumstances, in this organisation could not.  The sole question on this first point is whether they could be construed as meaning ‘You are dismissed’.  
On this point we are divided.  The majority, that is the Chairman and Mr Hopcraft take the view that they could not be so construed.  The applicant was merely being told to go home.  It was the end of his day’s work and it was not an unreasonable order.
Mr Down takes the view that the words constituted a dismissal.  He considers that, in the circumstances, bearing in mind that there had been some altercation, when the applicant was told to ‘Fuck off and go home’ it was a clear indication that he should not return because Mr James did not clarify his intentions by adding the words ‘We will sort this matter out in the morning’ or words to that effect.  Mr Down considers that he had sufficient time to do so.
Accordingly, by a majority we find that there was no direct dismissal.”

	In our judgment the majority of the Industrial Tribunal was entitled to reach the conclusion it did about the meaning of the words used by Mr James.  It follows that the Industrial Tribunal was entitled to reach that conclusion that this was not a case of express dismissal by the employer and that, in fact, is not challenged on this appeal.

	The Industrial Tribunal then moved on to say:  “The next question is whether there was constructive dismissal”.  It dealt with that question over six paragraphs.  It set out points which had been made about the history of the Applicant’s employment, a matter some time before when he was not invited to go to a weighbridge to check the weight of his lorry, the previous occasions of swearing in the past, and in particular the two occasions relating to the plan to change the tachograph.

	The Industrial Tribunal then went on to say that those two instances were serious enough to form the basis of the constructive dismissal, provided that all the other requirements for a constructive dismissal were in place.

“In the judgment of all of us, however, they were not in place.  In order to establish a constructive dismissal there must be a sufficient series of incidents as to amount to a breach of contract.  In this case the breach would be of the obligation to treat the staff fairly and not to undermine the relationship of trust and confidence.  By giving an order to carry out an illegal act, Mr James was in breach of that term.  That requirement was, therefore, in place.
The next requirement for a constructive dismissal, is that the applicant must leave because of the breach.  He must terminate it by reason of the employer’s conduct.  Conduct has been interpreted in the case of Western Excavating (EEC) Ltd v Sharpe [1978] IRLR 27, as amounting to a breach of contract by the employer.  The progression would have to be as follows:-  There has to be a breach by the employer.  The breach was the direction to replace the tachograph disks.  The applicant must act by terminating the contract by reason of that breach.”

	Then in paragraph 27 the Industrial Tribunal said:

“We do not find that Mr James’ swearing in the circumstances of this case constituted a breach of contract in itself nor was it the last of a series of incidents which, together, could constitute the breach.”

	Paragraph 28 said:

“The applicant’s most significant problem in this case is that he did not leave because he was sworn at.  He left because he considered that he had been dismissed and he maintained that view.  That, in our judgment, cannot possibly found the basis of a constructive dismissal.”

	So the Industrial Tribunal in paragraph 29 concluded that:

“For those reasons, the application fails”.

	The last four sentences, particularly the sentences in paragraph 28, formed the basis of the first ground of appeal, which is that in determining whether or not the Appellant had been constructively dismissed, the Tribunal misapplied section 95(1)(c) of the Employment Rights Act 1996 by holding that the fact that the Applicant had maintained that he left because he believed he had been overtly dismissed, meant that he could not claim constructive dismissal.  

	There might, in our view, appear to be some merit in that, if the last four sentences, or rather the three sentences in paragraph 28 of the decision were to be taken alone, because if they were to be taken alone it might appear that the Industrial Tribunal, having decided that the Applicant terminated the contract under which he was employed, in effect by deciding that he had not been dismissed by his employer but that he did not come back, did not ask itself whether he did so in circumstances in which he was entitled to do so by reason of the employer’s contract:  see section 95(1)(c).

	However, in our judgment, having considered the whole of the decision and what Miss McCarthy has said in her very helpful skeleton argument and her short submissions this morning, that would be to take too narrow a view of the Industrial Tribunal’s extended reasons.  

	In paragraph 27, having considered the previous history, including the two tachograph incidents, the Industrial Tribunal said that, in effect, the swearing did not constitute a breach of contract in itself and that it was not the last of a series of incidents which together could constitute a breach.

	The Industrial Tribunal was, in our view, there deciding that in all the relevant circumstances the Applicant did not terminate the contract in circumstances in which she was entitled to, without notice, by reason of the employer’s conduct, which is what section 95(1)(c) requires for constructive dismissal.  In our judgment, that was a conclusion which the Industrial Tribunal was entitled to reach.  All paragraph 28 does, in our view, is point out that the Applicant did not, in fact, leave because of what he saw as the employer’s misconduct.  He left because he thought he had been dismissed.  That clearly weakened his case of constructive dismissal to the point where it could not, in the Industrial Tribunal’s judgment, be well-founded in the circumstances of the particular case.

	Miss McCarthy has told us this morning about a discussion with the Tribunal during her submissions as to whether there was a point of principle, as to whether there could ever be a case of constructive dismissal where an employee has left because he thought he was dismissed; but obviously we have to work upon the reasons and all the reasons which are given in the decision itself.

	The second ground of appeal is that, having erred in law in applying the test for constructive dismissal, the Tribunal failed to give proper consideration to the question of whether the Respondent’s conduct on 14 May, taking into consideration that on two occasions during the previous week the Respondent has committed serious breaches of contract in directing the Applicant to exceed his permitted driving hours, was conduct amounting to the “last straw” that justified the Appellant’s departure.  But in our view the Industrial Tribunal quite clearly had the two tachograph matters in mind throughout its consideration of the application and the reasons which it gave, and it did consider whether the swearing was the last straw.  See paragraph 27 again.

	The third ground of appeal reads:

“The Tribunal failed to give any reasons why the incident on the 14th May 1997 was not the last in a series of incidents which together could constitute a breach of contract.”

	But, in our view, the Tribunal said quite enough in its decision to make it clear that in the context of the Applicant’s employment and where the confrontation on 14 May 1997 took place, the time at which it took place and the circumstances in which it took place, did not together amount to “a last straw” situation taken with the previous matters, in its view.  That point was made shortly but, in our view, adequately in paragraph 27 which has to be read with all which the Industrial Tribunal had said before.

	We are grateful to Miss McCarthy for coming here and adding to her skeleton argument, but in those circumstances we are afraid that we do not see points of law which merit argument upon an inter parties hearing and the appeal is dismissed at this stage.