Appeal No.	 EAT/330/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 July 1998
Judgment delivered on 21 July 1998

Before
HIS HONOUR JUDGE PETER CLARK
LORD GLADWIN OF CLEE CBE JP
MR B M WARMAN

MRS S BARRATT	APPELLANT

ABBEY NATIONAL PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR BARRATT
(Husband)	
For the Respondents	MISS F SINCLAIR
(of Counsel)
Instructed by:
Mr K Plaskitt
Abbey National Plc
Legal Services Department
Corporate Law Unit
Genesis House
301-349 Midsummer Boulevard
Milton Keynes
MK9 2JE	

	JUDGE PETER CLARK:	The appellant, Mrs Barratt commenced employment with the respondent Bank on 5th July 1993 at their Crawley branch. Initially she was designated a cashier; later her title changed to Customer Services Assistant.

	She had two days basic training at the Bank’s Headquarters and the rest of her training was to take place at the branch. The training which she received at the branch was subsequently to form part of a grievance which she took through all four stages of the Bank’s procedure before resigning on 1st March 1996.

	During the first six months of 1995 she was off sick for a total of 54 days and her mid-year assessment was that she was no longer an effective employee. A recovery agreement was put in place and she commenced training for promotion.

	One of the criticisms made of the appellant by the respondent related to her reluctance to engage in attempting to sell financial products to the Bank’s customers with whom she dealt. That matter also formed part of her grievance, together with other concerns regarding the way in which she was dealt with at branch level in relation to allegations of poor time-keeping and non-attendance through ill-health or otherwise.

The grievance process
On 30th October 1995 the appellant met with her managers, Mrs Clark and Mrs Ash and put her concerns to them. On 7th November she was certified unfit for work for one month due to stress. On 1st December she wrote to Sue Lynn, Personnel Officer, asking to take her concerns to the next stage in the grievance procedure, stage 2.

	On 12th December Carol Baker, the Area Sales Manager, wrote to the appellant rejecting her complaints. On 18th December she wrote to Mr Cooke, the Personnel Manager Southern operations in order to take her grievance to stage 3.

	The London (South) Industrial Tribunal which heard her complaint of unfair constructive dismissal and breach of contract and against whose decision dated 20th February 1997 this appeal is brought, concluded that Mr Cooke carried out a prompt investigation in commendable detail. He sought a meeting with the appellant but she declined, being unwell at the time. Her request for her husband to be present to assist her at any meeting was declined also, a position maintained by the respondent throughout so far as the formal procedure was concerned.

	On 9th January 1996 Mr Cooke published his findings in a letter to the appellant. He proposed, as a solution, either a return to the Crawley branch under a different Customer Services Manager, or a transfer to the Horsham branch, something which the appellant had requested on 26th October 1995. He upheld the main part of her grievance concerning unsatisfactory training. The appellant rejected the solution proposed by Mr Cooke, although the tribunal were unable to establish from the appellant why she rejected it, particularly as she had earlier requested a transfer to Horsham.

	On 22nd January Mr Cooke met with the appellant and her husband at an hotel. Mr Barratt, who in the view of the tribunal was the driving force behind the grievance, raised the legality of using bank records to promote the sale of financial products, in light of the provisions of the Data Protection Act 1984. Mr Cooke did not accept that any statutory breach was taking place.

	Finally, the appellant took her grievance to stage 4. It was then dealt with by a panel of three directors of the company. Again, her request that her husband attend any hearing was refused. The respondent’s procedures, to which we shall return, did not provide for such representation. 

	The stage 4 grievance hearing took place on 28th February 1996. The appellant did not attend. The findings of Mr Cooke, and his proposed solutions, were upheld. That decision was communicated to the appellant by letter that day. On the following day she resigned.

	On 4th March 1996 she presented an Originating Application to the Industrial Tribunal complaining of constructive dismissal. By a subsequent amendment that claim was altered to unfair constructive dismissal and breach of contract.

The Industrial Tribunal decision
The tribunal heard evidence from the appellant and Mr Cooke, both of whom they described as honest and impressive witnesses.

	On the facts before them they concluded that the respondent was not in breach of contract. Accordingly, the claim of unfair dismissal, based on a constructive dismissal, failed, as did the breach of contract claim.

The Appeal
By an amended Notice of Appeal the appellant takes four points which have been developed in oral submission before us by Mr Barratt. We shall deal with each in turn.

(1)	The tribunal erred in law in indicating to the respondents that the only witness they need call was Mr Michael Cooke.

	An issue arose before us as to the stage in the proceedings at which this indication was given. Mr Barratt appeared to be contending that it was given at the close of the appellant’s case. It is to be noted that the Industrial Tribunal had been provided with a number of witness statements from both parties pursuant to an earlier direction given by a Chairman, Mr Lamb, sitting on 23rd July and confirmed in a letter from the Industrial Tribunal to the parties dated 30th July 1996.

	Miss Sinclair, who appeared below and before us, contended, in the skeleton argument served on the appellant prior to a hearing in this appeal originally listed for 25th November 1997, that the indication was given after the tribunal had heard Mr Cooke’s evidence.

	We have concluded that Miss Sinclair’s recollection, supported by her contemporaneous notes and the Chairman’s comments dated 12th June 1997, is correct. No challenge was made to that version of events by or on behalf of the appellant prior to the hearing before us.

	It seems to us that the tribunal was quite entitled to give such an indication  in the interests of saving wasted time and costs if the calling of additional evidence would not advance the respondent’s case. It was then a matter for the respondent whether further evidence was in fact called. They decided not to do so.

	We cannot see that the appellant was disadvantaged by not having the opportunity to cross-examine further witnesses whom the respondent might otherwise have called. The appellant had already given her evidence in relation to the parts played, particularly by her managers, Mrs Clark and Mrs Ash. It would not have been open to the appellant to call those witnesses herself purely for the purposes of cross-examining them.

	Further, it is clear that the contents of the respondent’s witness statements did not form any part of the Industrial Tribunal’s reasons.

	Accordingly we reject the first ground of appeal.

(2)	The tribunal erred in considering the case presented before it was constructive dismissal, rather than being constructive dismissal and breach of contract, as stated in the amended IT1.

	We cannot accept that construction of the tribunal’s reasons. It is clear that the tribunal was primarily concerned with whether or not the appellant had been constructively dismissed as a prerequisite to such dismissal being unfair and/or wrongful. In paragraphs 21-22 of their reasons the tribunal found that there was no breach of contract by the respondent, let alone a repudiatory breach leading to a finding of constructive dismissal. Thus there was no unfair dismissal. Further, the claim for breach of contract was expressly dismissed.

	As to the breach of contract claim, it is not entirely clear even now how the appellant puts that part of her case. Mr Barratt submitted that following termination of the employment the appellant learned for the first time, from internal memoranda disclosed by the respondent, further and additional grounds for contending that the respondent was in breach of the implied term of mutual trust and confidence. However, even if that contention was made good, it would not give rise to a free-standing breach of contract claim justiciable before the Industrial Tribunal by a combination of s. 3(2) of the Industrial Tribunals Act 1996 and Articles 3(c) and 4(c) of the Industrial Tribunals Extension of Jurisdiction (England & Wales) Order 1994. Further, the appellant could not properly contend that she resigned in response to a breach of contract the details of which were then unknown to her.

(3)	The tribunal erred in failing to appreciate that the appellant’s complaint about the manner in which she was initially treated at branch level related not only to training but also to the unfair way she was dealt with in respect of allegations of poor time-keeping and attendance, through ill-health or otherwise.

	The substance of the complaint here is that the tribunal failed to appreciate that the appellant’s complaint was of a series of acts which cumulatively amounted to a breach of the implied term of mutual trust and confidence, culminating in the final stage of her grievance being dismissed. That was the ‘last straw’.

	We cannot accept that submission. It is clear that in her lengthy proof of evidence, which stood as her evidence-in-chief, the appellant made detailed complaints about the way in which she was treated at branch level over her time-keeping and attendance. She was also cross-examined on this aspect of her case. It is further clear from paragraph 4(ii) of their reasons that the tribunal had in mind the ‘last straw’ principle, explained by the Court of Appeal in Lewis v Motorworld Garages Ltd [1986] ICR 157. Because each and every point made by a party is not faithfully reproduced in the tribunal’s reasons does  not mean those matters were overlooked. Retarded Children’s Aid Society v Day [1978] ICR 437, 444D, per Lord Russell of Killowen. We are not satisfied that they were not overlooked in this case.

(4)	The tribunal failed to consider the respondent’s grievance procedure and in the circumstances whether a reasonable employer would permit an employee to be accompanied by a husband to assist her at grievance hearings.

	The contractual grievance procedure provided:

“Association Representation
An employee may only be represented by the Staff Association if he/she is a member, or by another employee (who will not be the representative or any other trade union) at Stages 2, 3 and 4. There is no entitlement to representation at Stage 1.”

	The appellant was not a member of the Abbey National Staff Association. She was a member of the non-recognised trade union, BIFU. Her husband was not an employee of Abbey National. She was not entitled to be represented by him as a matter of contract.

	The respondent cannot be in breach of contract by adhering to the contractual rights of representation agreed between the parties in the contract of employment. It is not a question of whether a “reasonable employer” would have permitted such representation.

Conclusion
Having considered each of the grounds of appeal advanced by Mr Barratt and the submissions in response made by Miss Sinclair, we have concluded that no error of law has been made out in this appeal. Accordingly, it must be dismissed.