Appeal No. EATS/0085/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 24 March 2004

 
Before
THE HONOURABLE LORD JOHNSTON
MR M R SIBBALD
DR W M SPEIRS

 

DOUGLAS FORBES	APPELLANT

 

SALAMIS (MARINE & INDUSTRIAL) LTD	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellant	Mr F Lefevre, Solicitor
Of-
Quantum Claims
Employment Division
70 Carden Place
Queens Cross
ABERDEEN   AB10 1UP

 
For the Respondents

 

 

 	 
Mr A Kemp, Solicitor
Of-
Messrs Burnside Kemp Fraser
Solicitors
48 Queens Road
ABERDEEN   AB15 4YE

 

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the employee against a majority decision of the Employment Tribunal sitting in Aberdeen that, against the background of an admitted material breach of contract on behalf of the employer, the employee had in fact affirmed the contract.
 
2.	Mr Kemp, appearing for the respondents before us, accepted that there had been a material breach of contract and that the issue was one of affirmation.
 
3.	The background is relatively simple.
 
4.	The appellant, who had worked for the company for some time, took issue with them when they appointed a man called Walker, effectively, to be his Line Manager.  The evidence disclosed that he felt unfairly treated in this respect, if not humiliated, and, shortly after the appointment was effective, he went off work with a stress-related illness which lasted for some time.  Thereafter, upon the findings of the Tribunal, various discussions took place which are reflected in letters numbers 92 and 107 of the bundle.  We will return to those documents.
 
5.	The majority of the Tribunal took the view that the conduct of the appellant amounted to an affirmation.  The substance of the decision is as follows:-
 
“In arriving at its decision the majority remained mindful that “it is not delay which may be fatal but what happens during the period of delay”.  (Cox Toner and Bashir).  In the present case, while Mr Forbes had expressed his dissatisfaction with Mr Walker’s appointment, like Mr Crook he had continued to draw his full salary, albeit in the form of sick pay, without expressly saying that he was doing so ‘without prejudice’ to his right to treat the contract as repudiated.  Nor did he say that he was working under protest.  While the EAT decided in Bashir that the fact Mr Bashir continued to draw sick pay did not “in itself” mean that he had affirmed the contract, unlike the present case, that was the only matter relied upon by his former employers to suggest that he had in any way affirmed the contract.  Mr Justice Slynn also referred “to the very special facts of this case” in his judgement (Page 298, para 17).
 
Looking then at what else Mr Forbes did, in addition to drawing his sick pay during the period of the delay, on 25 July, some five months after he was advised of Mr Walker’s appointment, he had a meeting with Mr Russell and Mr Saynor to discuss his return to work.  Thereafter on 22 August just as his sick pay was about to come to an end, he had a further meeting with them and agreed to return.  While the majority was mindful that working out a notice will not be seen as affirmation of a Contract (Section 95(1)(c) of the 1996 Act), he did return to work and he worked with Mr Walker as his Line Manager.  Further, and significantly, although he had resigned and was working out his notice, as soon as he became aware that Mr Walker was leaving, he indicated to his employers that he was prepared to continue working for them.  These were not the actings of an employee who had accepted a repudiation because he considered that his employers had conducted themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee.
 
Although the majority considered that the issue was narrowly balanced, it decided in all these circumstances, that Mr Forbes had affirmed the contract and that as a consequence he lost his right to treat himself as discharged.”
 
6.	Mr Lefevre, appearing for the appellant’s position, was that this conclusion was perverse and that the minority view was to be preferred.  He recognised that the test for perversity was a high one as recently re-stated in Yeboah v Crofton [2002] IRLR 634 and this was the point taken up by Mr Kemp in his main submission, to the effect that the matter was a question at best, mixed fact and law, one for the decision of the Tribunal exercising its evidential discretion which it had done in this case whatever view this Tribunal might take on the facts.
 
7.	We do not consider this case raises any great question of law but we are concerned as to the conclusions drawn by the majority in the context of the evidence.
 
8.	It is abundantly clear that the appointment of Mr Walker, which was admitted to have been a breach of contract as far as the appellant was concerned, was humiliating, and, in the process, offensive to the appellant, obviously triggering his illness which caused him to go off work.  We do not consider that the drawing of sick pay over the relevant period which, in fact, exceeded his actual right, indicates affirmation but rather is neutral.  We further do not consider under the letters to which we have made reference, that the various meetings that took place reflected affirmation by the appellant.  The proper construction to put upon them is a negotiating position being adopted by the Company, who obviously wanted to keep the appellant, against his position of dissatisfaction and non-acceptance of the situation.  It is highly significant to our mind, notwithstanding it was after the date of his resignation letter that the appellant offered to return to work once he discovered that Walker had left the Company.  This seems to us to confirm as a matter of fact that in the mind of the appellant he was not accepting the situation once Walker had been appointed and never would.
 
9.	In these unusual circumstances, we have come quite clearly to the view that the decision of the Tribunal was in fact perverse in the sense that the conclusion of the majority is one which no Tribunal properly instructed could reasonably have reached upon the evidence.  We recognise that at the time of the breach of contract or shortly thereafter, the appellant did not indicate that he was working under protest but we do not consider that the uncontrovertible evidence indicates that the appellant was behaving in a way inconsistent with an intention to treat the contract at an end.  As we have indicated the taking of sick pay is neutral and the subsequent meetings that took place prior to the resignation were properly to be regarded as negotiations rather then affirmation.  We therefore consider that all the evidence points one way, namely, to the fact that, at no time prior to his resignation, did the appellant act in such a way as to suggest that he was affirming the contract and was prepared to work with Mr Walker.
 
10.	For these simple reasons, which are purely determined on the issue of fact, and not under reference to authority, although some was given to us, we are of the view that this appeal must succeed.  We will accordingly quash the decision of the Tribunal and substitute a finding of our own to the effect that the appellant was constructively dismissed in a sense that he resigned as a direct result of a material breach of contract forced upon him by the employer.
 
11.	Mr Kemp submitted that if we reached this view there was still an issue of fairness to be determined but we do not accept that for a moment.  Where there is a material breach of contract brought on the employee by the employer in the context of no other explanation than the employer’s wishes, i.e., to employ Mr Walker, no such issue can arise.
 
12.	We shall accordingly so order.
 
13.	There remains the question of remedy which we consider can be adequately dealt with by the same Tribunal, notwithstanding that we have overturned their decision.  It is appropriate they should hear it in our view because they have already heard the evidence, and, in any event, the issue is only one of compensation.
 
14.	In these circumstances we shall order accordingly and remit the matter back to the same Tribunal on the question of remedy.