Appeal No. UKEAT/0050/11/LA

EMPLOYMENT APPEAL TRIBUNALFLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the TribunalOn 2 September 2011

Judgment handed down on 30 July 2012

Before

HIS HONOUR JUDGE PUGSLEY

MR M CLANCY

MRS D M PALMER

MR A ASSAMOI APPELLANT

SPIRIT PUB COMPANY (SERVICES) LTD(FORMERLY KNOWN AS PUNCH PUB CO LTD) RESPONDENT

Transcript of Proceedings

JUDGMENT

Copyright 2012

APPEARANCES

For the Appellant MR A HOLMES(of Counsel)Instructed by:Messrs Fadiga & Co Solicitors2 The BoulevardBalham High RoadLondonSW17 7BW

For the Respondent MR M GRANT(of Counsel)Instructed by:HBJ Gateley Wareing (Manchester) LLPShip Canal House98 King StreetManchesterM2 4WU

UKEAT/0050/11/LA

SUMMARY

UNFAIR DISMISSAL – Constructive dismissal

The Claimant worked as a head chef. He had rather a turbulent period of employment with his

employer. The Tribunal made a finding that the Claimant’s manager had acted in a way likely

to damage the relationship of trust and confidence. However in the investigation senior

management vindicated the Claimant’s position. The Employment Tribunal found that this

prevented the acts of the immediate manager constituting a breach of the implied term. The

main ground of the appeal was that this was a misdirection in the light of Bournemouth

University Higher Education Corporation v Buckland [2010] ICR 908 CA. This was

rejected on the basis that the facts of the case were very different. There is a distinction

between preventing matters escalating into a breach of the implied term of mutual trust and

confidence and trying to cure a breach which has already taken place.

UKEAT/0050/11/LA

HIS HONOUR JUDGE PUGSLEY

Introduction

1. In this case the Appellant appeals against a decision of the Employment Tribunal sitting at

London Central. The decision was promulgated on 15 October 2010; the hearing had lasted

over three days between 27 and 29 September, and there was a further day of consideration on

1 October.

2. The Claimant had been employed by the Respondent company, which runs public houses in

England, Scotland and Wales and employs approximately 18,000 staff, of whom about 220

work in the Kensington and Knightsbridge area of London, which was where the Claimant was

employed.

3. It was common ground at the Tribunal that the Claimant, who had commenced his

employment with the Respondent in March 1993, resigned, and the sole issue for the Tribunal

was whether or not the Respondent’s treatment of the Claimant amounted to conduct that was

in fundamental breach of either an express or implied term that entitled him to resign without

notice and regard himself as having been constructively dismissed.

Background

4. The Tribunal made comprehensive and detailed findings of fact in its decision from

paragraph 7 onwards. Since the commencement of his employment in March 1993 the

Claimant had worked in various pubs belonging to the Respondent. He worked on an hourly

rate contract, latterly at £7.50 per hour, and worked approximately 48 hours on a rota basis each

week. The Tribunal noted that there was a certain lack of clarity about the Claimant’s precise

job title, as it oscillated between being kitchen manager and kitchen team leader over the years.

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The change in title was due to a history of merger and takeover involving different public house

groups with differing job titles.

5. The Claimant’s job history was not, as the Employment Tribunal’s summary shows, one of

employment that was untroubled and uneventful. We propose in this Judgment to summarise

with brevity the history set out in clear and cogent terms by the Tribunal rather than to simply

rehearse the findings of fact they make in paragraph 7 onwards. In June 2005 the Claimant was

suspended and subject to a formal disciplinary process in relation to being absent, having taken

a week’s extra leave on a visit to Australia. This led, after investigation, to a final written

warning being issued to him. His appeal against this warning was not successful. Thereafter

the Claimant instituted a grievance against Mr Elsey, the pub manager involved, because he had

not received payment whilst he was suspended during the disciplinary procedures concerning

his unauthorised extension of his holiday. In December 2005 his employers determined he was

in fact owed some back pay.

6. Thereafter in December 2005/January 2006 the Claimant was subject to a second

disciplinary process in relation to the use of a mobile phone in the kitchen. This was not only in

breach of the house rules but against health and safety regulations. The Respondent decided not

to take any further action because that would have activated the final warning. There was a

further grievance raised by the Claimant in relation to him being stopped from using a radio in

the kitchen and about him not being invited to a staff event. The Respondent found these

grievances unfounded and also found unfounded other grievances in relation to wages and

bonuses, and a complaint of race discrimination.

7. In December 2006 there was a complaint by another member of staff against the Claimant

because he raised his voice at her and wiped her name from the rota board but Mr Elsey advised

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the Claimant that although such behaviour would not be tolerated he would not at that stage be

taking a formal disciplinary action over that matter.

8. In April 2007 the Claimant raised another grievance, about the introduction of a kitchen

manager over his head; however, the Tribunal accepted that the position had been internally

advertised and the Claimant had not applied for it. The new kitchen manager was therefore an

external recruit and the Tribunal did not feel that any criticism could be made about the

Respondent’s action there. In June 2007 the Claimant requested a transfer from The Swan,

under Mr Elsey’s management, to another public house. That was agreed. In March 2008 the

Claimant moved to The Paxton Head and a Mr Cooper took over the management of that public

house in February 2009.

9. In March 2008 there had been several company mergers in the Respondent’s organisation,

and as a consequence in April 2009 there was a realignment of job positions across the whole

group. It was decided that there would be kitchen managers, who would be salaried positions

with set hours and the possibility of a bonus, and kitchen team leaders, who would remain on

hourly paid contracts with zero hours shown but working hours according to the individual

pub’s rota requirements. The Claimant was shown the new kitchen manager contract in

March 2009, which had a salary determined centrally according to the size of the pub, of

£16,700 per annum for fixed hours. The Claimant refused this contract because it would have

meant an effective drop in his earnings from his hourly rate position, and he therefore stayed on

his previous terms and conditions save that his job title was now kitchen team leader.

10. Matters came to a head in December 2009, and the Tribunal’s findings as to these matters

are set out from paragraph 19 onwards of the decision. The Claimant had booked holiday leave

from 27 November to 10 December 2009. This followed a discussion that involved Mr Cooper,

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the Claimant, and two kitchen colleagues, Mr Truong and Mr De Oliveira. Mr Cooper agreed

to the Claimant’s holiday leave despite it being a busy time in the lead up to Christmas,

provided the other two employees, Mr Truong and Mr De Oliveira, both worked during that

period to cover the Claimant’s absence. The Tribunal accepted that the Claimant agreed to

come in on 3 December, a Thursday, and on Sunday, 6 December, and the Tribunal accepted

that on the balance of probabilities on Thursday he told Mr Cooper he could not come in on the

Sunday since he would be in Manchester, and the Tribunal accepted that Mr Cooper had

sanctioned that as long as the other two members of staff were prepared to work on that

Sunday. The Tribunal did not accept the manager’s evidence that the Claimant had been

required to work on Saturday and Sunday, 5 and 6 December. They set out their reasoning in

paragraph 20, and that was a finding of fact. On Monday, 7 December Mr Cooper found the

food service was very slow, and he discovered that Mr Truong was working alone in the

kitchen. Mr Truong told Mr Cooper that he and Mr De Oliveira had altered their rota between

themselves so only one person was working on that Monday and on the following day, the

Tuesday. At one stage food service in the pub had to be stopped because the pressure of orders

was impossible for one chef on his own to cope with.

11. Mr Cooper texted the Claimant, Mr Truong and Mr De Oliveira telling them that he was

holding a kitchen meeting at 9.00am the following day, 8 December; all, “must attend without

failure. If you do not attend, it may end with disciplinary proceedings against you”. Mr Truong

told Mr Cooper that he could not attend the following day as he had an appointment. There was

a vigorous row, and Mr Cooper ordered Mr Truong to leave the building. Mr Cooper

telephoned the other operative, Mr De Oliveira, and asked him to come in to work to help cover

the food service, but Mr De Oliveira said it was too far away and he would not come. No one

attended the meeting on 8 December. When later Mr De Oliveira turned up for work he was

told he was not allowed in the building, and he was subsequently sent a suspension letter dated

UKEAT/0050/11/LA-4-

8 December. The Claimant was also sent a letter suspending him, saying that he would be

suspended on full pay from 8 December pending an investigation into the allegations he had

failed to work on the Sunday, 6 December, and refused to attend a meeting on 8 December.

This letter invited him to an investigatory meeting at 9.30am on 11 December 2009 and stated

that, “suspension does not constitute any form of disciplinary action against you”.

12. The investigatory meeting took place on 11 December and was chaired jointly by

Ms Vanda Pera and Ms Vicki Neveldsen, both general managers from other pubs. The

Claimant was accompanied by one Tina Moran. As the Tribunal sets out in paragraph 26, it

became clear at this meeting that the Claimant had been on holiday on the date when he was

required to attend the team meeting and he had arranged not to be present on

Sunday, 6 December. It was decided that no action should be taken and that the Claimant was

formally informed of this by a letter dated 14 December. That letter also stated:

“[…] all documentation relating to this matter will be removed from your records and you will be required to attend a return to work meeting prior to starting back to work.”

13. On 12 December the Claimant raised a written grievance regarding the treatment of himself

and other members of his kitchen team at the hands of Mr Cooper, accusing him of undertaking

malicious and spurious disciplinary actions against him and complaining about the short notice

given of his investigatory meeting, since he had only received the suspension letter dated

8 December upon returning home from leave on 10 December for the meeting early on

11 December. A second letter was sent to the Claimant dated 14 December, also from Ms Pera,

stating the recent suspension would not be noted on his file, but “this does not mean it won’t be

taken into consideration if any issues arise following the back to work meeting”.

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14. In view of the crucial significance of the findings of the Tribunal about the events that took

place thereafter, the exact quotation from the Tribunal’s decision would be helpful:

“28. At that mandatory return to work meeting, attended by Mr De Oliveira and the Claimant, there was a briefing on ‘operation excellence’ and the Claimant was given a copy of the new standardised contract incorporating his title as kitchen team leader. His terms and conditions otherwise remained unchanged. The Claimant refused to sign because he alleged that his hours were being reduced. The Tribunal accepted, however, on the evidence before it, that the contract which the Claimant was shown did not specify hours of work. Mr De Oliveira also refused to sign because he sought a pay rise, which was not forthcoming.

29. The notes of the return to work meeting state that the Claimant and Mr De Oliveira were offered three choices:

To sign the terms and conditions and return to work at the Paxton Head

To ask for a transfer to another site; or

Resign

30. They were given time to think about this and a further return to work meeting was convened for 17 December. The Claimant stated in Tribunal that he had asked Ms Pera or Ms Neveldsen at the first return to work meeting how many hours he would be working and that someone had stated 29 - 35 hours. However, the Claimant’s evidence as to where he had gleaned the number of hours he would be working was contradictory, he having first stated that it was written in the contract and then stated that it was said to him at the meeting and was also inconsistent as to how many hours were actually stated to him.

31. However, all of the versions shared in common the fact that the number stated was less than the 39 hours which he had actually been working up until then. The Respondent did not call as witnesses the persons conducting this meeting who could have given evidence on this matter, because they were both in Paris.

32. On all the evidence which was before it, the Tribunal accepted that the Claimant had asked somebody at that meeting about numbers of hours, because it was not on the written contract, and had been told some figure of up to 35 hours.

33. On 17 December 2009, the second return to work meeting was held, this time attended by Mr Cooper also, in an attempt to resolve matters. At this meeting, Mr De Oliveira resigned on grounds of pay, although the Respondent wanted him to stay, with a transfer to another pub if he wished, and gave him a week to reconsider the matter. Both the Claimant and Mr De Oliveira asked for, and expected, an apology from Mr Cooper which Mr Cooper refused to give as he felt that he had nothing to apologise for as he believed his was a reasonable management request which they had ignored.

34. The notes of neither meeting show the Claimant raising a question or objection to a reduction in his hours, although the meeting notes were clearly a summary rather than a verbatim record. The Claimant was unhappy with Mr Cooper’s refusal to apologise. He was offered a transfer to another pub if he wished but he was required to sign his contract, which he refused to do. He was informed that as the suspension had been lifted following the investigation and first return to work meeting, he was no longer being paid, since it was his choice to refuse to return to work under the company’s terms and conditions.

35. He was advised to go home and think about what he wished to do and then to contact Mr Cooper with his decision. The three options offered were: to sign the terms and conditions and return to work with no further action; to sign the terms and conditions and return to work at another pub; or to resign.

36. The Claimant never returned to work and on 29 December 2009 sent a letter of resignation which stated that he tendered his formal resignation ‘effective immediately’, complaining about his treatment at the hands of Mr Cooper and complaining about the fact that he was asked to sign a new contract in which he had been ‘demoted and reduced hours’. The letter went on to state that he had been through this process before and was not willing to give the company another chance to redeem its appalling treatment of underpaid

UKEAT/0050/11/LA-6-

hardworking staff. He ends by stating that it is ‘about time someone stood up to the shameful practices permitted in this company and to take a stand for workers rights. I am that person’.

37. On 5 January 2010, the Respondent acknowledged the Claimant’s grievance dated 12 December and invited him to a grievance meeting at 12.00 o’clock [sic] on 11 January, conducted by Ms New.

38. Mr Truong, who had raised a grievance himself on 14 December, was also invited to a grievance meeting on 11 January to be held at 2.00pm. The Claimant told the Tribunal that Ms New forced them to separate, whereas they wished to be together during their grievance hearings. The Tribunal concluded that there was a misunderstanding concerning this and that they could have accompanied each other to their grievance meetings, but were not allowed to have their grievances actually heard together, under the Respondent’s policy and rules.

39. Ms New told the Tribunal that the Claimant became aggressive during his grievance meeting. The Claimant stated on Day 3 of the Tribunal Hearing that the notes of his grievance meeting were ‘30% inaccurate’. However, on Day 1 of the Tribunal hearing, having been given time by the Tribunal to list specific inaccuracies, he had cited only one. Also, the Claimant admitted that he had received a copy of the grievance meeting notes in early February 2010 and had not checked them nor objected to them. He now alleges that they are ‘fabricated’. The Tribunal did not, in the light of the Claimant’s conflicting contentions about them, accept that the notes were substantively inaccurate. The notes indicate that the Claimant was refusing to come back to work because Mr Cooper was refusing to apologise. He had also stated on two occasions during this meeting that even if Mr Cooper did apologise he would not come back because ‘the company tried to mislead him’ as to his job title and reduced hours and ‘he would not have signed the contract anyway’.

40. On 29 January 2010, the Respondent wrote to the Claimant saying that no further action in relation to his grievance would be taken because he had decided not to return to work. An appeal was offered which the Claimant did not avail himself of.”

15. The Tribunal directed themselves to the long line of cases that concerns constructive

dismissal. It is to be noted that at no stage were the Tribunal referred to, or did they note in

their own decision, the case of

Bournemouth   University   Higher   Education   Corporation   v Buckland [2010]

EWCA Civ 121, a decision in which it was held that a repudiatory breach, once completed,

cannot be remedied by the defaulting party. Having directed itself in the light of the findings of

fact it made, the Tribunal came to the conclusion that the Claimant had failed to satisfy it, on

the balance of probabilities, that the acts of which he complained, whether taken singly or

cumulatively, amounted to a fundamental breach of contact so as to entitle him to resign and

treat himself as constructively unfairly dismissed. They made a finding of fact that matters

going back from 2005 up to 2009 were simply too long ago to constitute part of a continuing

state of affairs, and, further, the Claimant must be taken to have affirmed the contract after such

breach by continuing to work without protest during the intervening period. In evidence the

UKEAT/0050/11/LA-7-

Claimant said that Mr Cooper was not too bad until the events of December 2009, some 11

months after Mr Cooper had taken over the public house.

16. However, the Tribunal did conclude unanimously that the conduct of Mr Cooper in

December 2009:

“45. […] in convening the Claimant to a kitchen team meeting during his holiday, asserting he was absent without permission on Sunday 6 December, whereas, on the facts as found by the Tribunal, he had himself formally sanctioned it, and thereafter refusing to apologise (although he accepted in evidence before the Tribunal with hindsight he should have done so); were acts likely to damage a relationship of trust and confidence between himself as manager and the Claimant.”

17. The Tribunal describe Mr Cooper’s behaviour as inappropriate and over-reactive, and it was

the behaviour of an inexperienced manager, which resulted in the costly loss of the entire

kitchen team in the lead up to the busiest season of the year.

18. At paragraph 45 of their decision the Tribunal stated this:

“The Respondent, however, in the persons of Ms Pera and Ms Neveldsen, prevented Mr Cooper’s conduct from constituting a breach of the implied term of trust and confidence entitling the Claimant to resign and regard himself as constructively dismissed by believing and accepting the Claimant’s account of events about his holiday during the investigatory meeting, stating that no further action would be taken and three days later offering the Claimant the option of a transfer to another pub under a different manager.”

19. These words have been subject to a considerable amount of analysis, and this is a matter we

will return to in considering the grounds of appeal.

20. The Claimant’s suggestion was that the Respondent organisation as a whole in general was

to blame for the treatment of him. The Tribunal at paragraph 46 rejected this suggestion and

took the view that the Claimant was a valued, hardworking and longstanding employee whom

the Respondent did not want to lose, and that was apparent in the way his disciplinary

proceedings had been dealt with.

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Grounds of appeal

21. The first ground of appeal is in effect that by using the words “Ms Pera and Ms Neveldsen

prevented Mr Cooper’s conduct from constituting a breach of the implied terms […] of trust

and confidence”, is, in the light of Bournemouth University v Buckland , an error of law. In

his Judgment in that case Sedley LJ made a frank recognition that the decision would cause

practical difficulties in the context of industrial practice.

22. The facts of that case were that the Claimant was a university professor and a course unit

leader. He failed a high number of students in the end of year examination. The papers were

re- marked by a programme leader, who criticised the original marking.

23. The examination papers were then re-marked by a different member of the academic staff,

which resulted in improved results. The chairman of the academic board confirmed that

conclusion without consulting the Claimant on that decision. The Claimant complained to the

university authorities, and an inquiry chaired by an independent academic criticised the

university. The report acknowledged that the third marking should have been undertaken in

consultation with the Claimant. The Claimant nevertheless considered he had not been

vindicated by the results of the inquiry.

24. It was argued on behalf of the Claimant in that case that in the absence of waiver or

affirmation the wronged party has an unfettered choice of whether to treat the breach as

terminal regardless of its reason or motive for so doing. There is, in other words, no way back:

see paragraph 36 of Sedley LJ’s Judgment at 916. Sedley LJ in his Judgment at paragraph 37

confessed that it seemed that if that was the state of the law, it was capable of working injustice.

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He noted that in giving leave to appeal Buxton LJ remarked that this may be the point at which

law of contract meets sensible industrial relations.

25. Sedley LJ ultimately accepted that there could not be in employment law the doctrine that a

fundamental breach, if curable and if cured, takes away the innocent party’s option of

acceptance. To introduce that concept could only be on grounds that were capable of extension

to other contracts, and Sedley LJ felt that it could not be justified in taking that course. It is

right to say that Jacob LJ agreed the decision to allow the appeal; however, he did not share

Sedley LJ’s misgivings in holding in an employment contract a repudiatory breach of contract,

once it had happened, cannot be cured by the contract breaker.

26. We are in a position of dealing with a case in which the Bournemouth University v

Buckland case is highly relevant and is binding when that case was not cited or considered by

the Tribunal below.

27. As Sedley LJ noted, contracts of employment are not like the generality of contracts; they

are inherently personal. In many commercial contracts, the conditions of the contract are

covered by standard form written contracts or by professionally drafted documentation.

Although the term of trust and confidence resonates with certain contractual duties that would

be found in such mundane contractual relationships as a driver taking his motor vehicle into the

local garage to be serviced, nevertheless there are particular features about the term of mutual

trust and confidence in an employment contract that would probably be absent in many other

contractual situations. Legal decision making is the application of general rules to particular

factual circumstances. In many cases, lay litigants, and in some cases professionally qualified

advocates, exaggerate the importance of decided authorities. If an Employment Tribunal finds

that an employee has been unfairly dismissed for swearing at the foreman, and if an appeal

UKEAT/0050/11/LA-10-

against that decision is dismissed, that case does not stand as a charter for the abusive

employee. On close analysis it is nearly always found that such cases are facts specific

decisions that do not have much wider significance.

28. In the case of Piglowska   v   Piglowski [1999] 3 All ER 632, Lord Hoffmann  with whose

speech all their Lordships agreed, set out the limitations of the role of an appellate court. He

stressed the importance that a trial judge had in seeing the parties and other witnesses when it

came to his evaluation of the facts, and that the exigencies of daily courtroom life were such

that reasons for a Judgment would always be capable of being better expressed, and so they

should be read on the assumption that, unless he demonstrated the contrary, the Judge knew

how he should perform his function and which matters he should take into account.

29. On the facts of the Bournemouth University v Buckland case the papers were re-marked

by the programme leader, who criticised the Claimant’s original marking. They were then

marked again by a different member of the academic staff, with improved results, which the

chairman of the board of examiners confirmed without consulting the Claimant. The inquiry

chaired by the senior academic criticised the university and acknowledged that the third

marking should have been undertaken in consultation with the Claimant. The Claimant did not

feel he had been exonerated by the inquiry and resigned with effect from the end of the

academic year. The decision to alter the grades he had given without consultation was a

specific and clearly defined event.

30. In many cases of the breach of the implied term of trust and confidence, the events of which

complaint will be made will be over a period of time rather than at a point of time as in the

Bournemouth University v Buckland case. As Browne-Wilkinson LJ made clear in

Woods   v   WM   Car   Services (Peterborough)   Ltd [1981] ICR 666, the last action of the

UKEAT/0050/11/LA-11-

employer that leads to the employee leaving need not in itself be a breach of contract. The

question is: does the cumulative series of acts, taken together, amount to a breach of the implied

term? As Glidewell  LJ pointed out in Lewis   v   Motorworld   Garages   Ltd [1986] ICR 157

at 169:

“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. An appellate court, whether the Employment Appeal Tribunal or the Court of Appeal, may only overrule that decision if the Industrial Tribunal have misdirected themselves as to the relevant law or have made a finding of fact for which there is no supporting evidence or that no reasonable Tribunal could make.”

31. The Employment Tribunal noted at paragraph 44 that although there had been a history of

previous problems, on the facts as they found them to be the Claimant’s evidence was that

Mr Cooper was not that bad until the events of 2009, which was some 11 months after the last

brush with Mr Cooper.

32. The crucial finding by the Tribunal is at paragraph 45. The Tribunal concluded

unanimously that the conduct of Mr Cooper in December 2009, namely:

“45. […] in convening the Claimant to a kitchen team meeting during his holiday, asserting he was absent without permission on Sunday 6 December, whereas, on the facts as found by the Tribunal, he himself informally sanctioned it, and thereafter refusing to apologise (although he accepted in evidence before the Tribunal with hindsight that he should have done so); were acts likely to damage the relationship of trust and confidence between himself as manager and the Claimant.” This was the inappropriate and over-reactive behaviour of an inexperienced manager which resulted in the costly loss of the entire kitchen team in the lead up to the busiest season of the year. The Respondent, however, in the persons of Ms Pera and Ms Neveldsen, prevented Mr Cooper’s conduct from constituting a breach of the implied term of trust and confidence entitling the Claimant to resign and regard himself as constructively dismissed by believing and accepting the Claimant’s account of events about his holiday during the investigatory meeting, stating that no further action would be taken and three days later offering the Claimant the option of a transfer to another pub under a different manager.”

33. Mr Holmes did not appear for the Claimant at the Employment Tribunal. The central

contention of Mr Holmes, who has argued the case so well on behalf of the Appellant, is that

paragraph 45 of the decision is inconsistent with the decision of the Court of Appeal in the

Bournemouth University v Buckland case. In Mr Holmes’ words:

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“Whether it is expressed as ‘prevention’ or ‘cure’ it amounts to the same impermissible approach: conduct which would have been sufficient to breach the implied term no longer does because of subsequent actions of the employer.”

34. We have considered this submission with care because Mr Holmes has put the Appellant’s

case in a most attractive and persuasive form.

35. Mr Grant, who appears for the Respondent, points out that although the Tribunal found that

the actions of Mr Cooper were likely to damage the relationship of trust and confidence, the

Tribunal did not consider that his actions were likely to satisfy the test of seriously damaging

the relationship as would be required for a breach of the implied term. Mr Grant’s submission

is the Tribunal chose its words with care, and, as the Tribunal had properly directed itself at

paragraph 42 that the essence of a fundamental breach of the implied term was to act in a

manner calculated or likely to destroy or seriously damage the relationship of trust and

confidence, it was open to the Tribunal to find, as it did, that the actions of Mr Cooper were

likely to damage the relationship of trust and confidence but that his actions were not likely to

seriously damage that relationship as would be required for a breach of the implied term.

36. We do not consider that we should move into the area of metaphysical abstraction. There is

a fundamental distinction, which it is perhaps more easy to recognise than to define, between

there being a fundamental breach of contract that an apology by an employer cannot cure and

there being action by an employer that can prevent a breach of contract taking place. The

members of this Tribunal with industrial experience point out that the whole object of a

grievance procedure and a disciplinary procedure is that an employee has the opportunity to

articulate his concerns about the behaviour of management and to defend himself against

allegations that in some way he is unfit to remain in the employment of the employer.

UKEAT/0050/11/LA-13-

37. If, for example, in a large industrial undertaking an employee called John Smith were to be

given notice of a disciplinary hearing concerning a sexual assault perpetrated by him on a

female employee, and it later transpired that due to an administrative mix-up the letter should

have been sent to another employee of the same name, would the recipient of the first letter,

sent in error, be entitled to say there had been a breach of an implied term, albeit that as soon as

he had taken up the matter there was a profuse apology and an acceptance that the recipient of

the letter was wholly innocent of any such inappropriate behaviour? It might be that the most

cursory enquiries by the employer would have revealed that the recipient of the letter did not

work on the same site or in the same section as the female employee concerned and may indeed

have never met her. In those circumstances, we venture to suggest that an Employment

Tribunal would consider that the employer’s prompt apology for the mistake and the removal of

the apprehension that the recipient of any such letter would undoubtedly have, might well be

said to have prevented such a breach. However, if the employer had not acted to check the

protests of the innocent employee and allowed the matter to drag on before finally accepting the

mistake must have been made by them, then different considerations might apply.

38. Having looked at the Tribunal’s decision in a robust way, we find nothing to support the

suggestion that the Tribunal came to a view that there had been a breach of contract that was

cured by the emollient approach of Ms Pera and Ms Neveldsen. We consider that, properly

construed, the decision amounts to findings by the Tribunal that, although Mr Cooper had

behaved badly towards the Claimant, his behaviour was not so serious as to justify the Claimant

leaving and there was a finding that the fair minded way in which the investigatory meeting

proceeded was such that it prevented the matter escalating into a state of affairs that would have

justified the Claimant leaving and claiming he was constructively dismissed.

UKEAT/0050/11/LA-14-

39. If the decision is read in a somewhat pedantic way of carefully weighing the words used, we

do not consider that we could ignore the distinction drawn by the Tribunal between their

finding at paragraph 45 of their decision that Mr Cooper’s acts were likely to damage the

relationship of trust and confidence between himself as the manager and the Claimant and the

fact that they had correctly identified in their directions of law that the precise test was that the

Respondent must act in a way that seriously damaged the relationship. We have found no

misdirection of law in the decision on this issue, nor do we think that the Claimant can begin to

succeed on the issue of any matter of perversity of finding of fact. This Tribunal was entitled to

look at the total picture, including the investigatory meeting, and we do not consider that there

are any grounds for allowing ground 1 of this appeal. Furthermore, by virtue of the Tribunal’s

finding of fact at paragraph 48 of its Reasons that Mr Cooper’s behaviour was not the real cause

of the Appellant’s eventual resignation, we cannot see how in the light of the case of

Walker   v   Josiah   Wedgwood   &   Sons   Ltd [1978] ICR 744 that, even if we were to allow

the first ground of the appeal, this case could succeed in any event.

40. Ground 1, namely the impact of the Bournemouth University v Buckland case on this

decision, raised arguable points of law. We have to say that the further points raised in

grounds 2 - 7 are in effect more arguments about fact rather than distilled issues of law. In

ground 2 it is said the Tribunal was in error in coming to the conclusion that transferring the

Claimant to a new pub where he had to make new acquaintances, build up new relationships

and a new team is an acceptable alternative. It is difficult to see exactly how this ground of

appeal is grounded in any of the factual findings made by the Tribunal. The Respondent at no

time, on the findings of the Tribunal, forced the Appellant to transfer to another pub; he was, as

paragraph 35 recites, given the three alternatives, one of which was to transfer to another public

house, the second of which was to return and work at his existing job with no further action

taken against him, and the third was to resign. At no stage is there any suggestion he was being

UKEAT/0050/11/LA-15-

forced to work at another pub. It is difficult to see how in the context of the decision as a whole

it can be said that this ground of appeal raises any issues of an error of law.

41. Ground 3 states that the Tribunal failed to address the breach of trust and confidence

entitling the Appellant to resign by demoting him from kitchen manager to kitchen team leader.

The Respondent did not offer any explanation as to why the employer could not appoint him as

kitchen manager on his existing salary. This ground of appeal does not do justice to the

Tribunal decision; moreover, it is an attempt to isolate from a comprehensive decision that

makes detailed findings of fact a segment of the decision and elevate it to an unrealistic

importance in the context of the decision as a whole.

42. It is simply inaccurate to say the Tribunal did not address this issue. The matter is raised at

various parts of the decision, namely in paragraphs 9, 15, 18, 28, 30, 36 and 39. The findings of

fact by the Tribunal were clear. The Tribunal found there was a lack of clarity over the

Appellant’s precise job title between kitchen manager and kitchen team leader, and set those

out in paragraph 9 of its decision. It found in paragraph 15 that the position of kitchen manager

had been advertised but that the Appellant had chosen not to apply for it. He moved to The

Paxton Head in March 2008, as set out in paragraph 16 of the decision. The Claimant was

shown the new kitchen manager contract in March 2009, and, as set out in paragraph 18, he

refused the contract because it would have meant a drop in earnings from his hourly rate

position, and he therefore stayed on his previous contract terms and conditions except his job

title was now kitchen team leader. In their conclusions in paragraph 48 the Tribunal made

exhaustive conclusions of fact to the effect that the Claimant wrongly perceived the new

contract as demotion and that his employer had done nothing to change the substantive terms

and conditions under which he worked. There is no error of law in this Tribunal’s decision, and

UKEAT/0050/11/LA-16-

this is an attempt to put before the Tribunal matters as an error of law that in reality were

conclusions of fact to which the Tribunal was entitled to come.

43. Ground 4 reads as follows:

“The Tribunal erred in failing to address the breach of trust and confidence caused entitling the Claimant to resign by reduction of hours from 39 to less than 39 hours (paragraph 31). The Claimant’s evidence was that it was reduced to 29-35 hours (paragraph 30).”

44. Throughout its decision the Tribunal noted various matters about the Claimant’s working

life. For example, in paragraph 8 the Tribunal found the Appellant worked on an hourly rate,

latterly at £7.50 an hour, working approximately 48 hours per week on a rota basis. It also

flagged up the fact that the Appellant had been employed by the Respondent since 1993. That

the Appellant was working on a rota based basis was again emphasised in paragraphs 17 and 31

of the decision.

45. The Respondent points out that the inference to be drawn from these findings is that the

weekly hours varied according to requirements that reflected the rota based nature of the

Appellant’s employment.

46. It is against that background that the Tribunal’s consideration of what was being offered is

to be viewed. The contract that the Appellant was asked to sign was a zero hours contract; it

did not specify the number of hours the Appellant would work because it would depend on rota

requirements.

47. In paragraph 48 the Tribunal concluded that the Respondent was entitled to reorganise its

job titles and require all of its staff to sign contracts of employment, and had done nothing to

change the substantive terms of the contracts and conditions under which the Claimant worked.

UKEAT/0050/11/LA-17-

It is implicit in the findings of the Tribunal that he would have the same type of work pattern,

since the Tribunal made the finding of fact that there was nothing to change the substantive

terms and conditions under which the Claimant worked. At that stage it is pertinent to note that

Mr De Oliveira had resigned and there was no evidence that the Tribunal mentioned to suggest

that the Respondent had over the years taken on additional staff to reduce the hours its

operatives worked. In these circumstances, having regard to the background that the Tribunal

had gleaned from the hearing, it is a conclusion of fact open to them that the rota system of

work would ensure that the Claimant did not suffer financially on a long term basis because the

nature of the work was such it would depend on the availability of people to do it.

48. Ground 5 claims that the Tribunal failed to consider the 2007 incidents as part of a series of

events happening during his employment. This no doubt refers to the matters set out in

paragraphs 15 and 16. In the first matter, the Claimant raised a grievance about the introduction

of a kitchen manager over his head. However, the Tribunal accepted on the evidence that this

position had been internally advertised and the Claimant had decided not to apply for it. The

new kitchen manager was therefore an external recruit that the Claimant had to train up in in-

house procedures but not as a chef. In June 2007 the Claimant requested a transfer from The

Swan under Mr Elsey’s management to another pub. There was a grievance procedure

following the Claimant’s grievance on 15 April, and the transfer was sanctioned. The Claimant

subsequently moved to The Paxton Head in March 2008. It was there that Mr Cooper took over

as manager. We consider the Tribunal was justified in taking the view that these matters had

ceased to be relevant to the issue they had to determine.

49. In some ways linked to ground 5 is ground 6: that, “the Tribunal erred in coming to the

conclusion that moving him to another Pub exonerated the employer from any additional

action”. The answer to this criticism is contained within the confines of paragraph 44. There

UKEAT/0050/11/LA-18-

the Tribunal briefly recapitulate the history of the Claimant’s employment, but in the Tribunal’s

view they were too far in the past reasonably to be taken into account as part of a continuing

series of events or state of affairs culminating in December 2009 especially since they related to

a different pub and with a different manager.

50. The Tribunal note the time sequence of various grievances had been raised and also note

that the Claimant had described Mr Cooper as an “insufferable tyrant”. However, in evidence

the Claimant said that Mr Cooper was not that bad until the events of December 2009, some 11

months later. It is inevitable that people who feel aggrieved by a Tribunal decision will think of

many issues that they do not consider the Tribunal has dealt with adequately. That feeling

cannot be elevated into an issue of law unless it can either show that the decision was defective

because it did not deal with the issues in the case or it made findings for which there was no

evidential basis. Tribunals must be allowed to have some right to decide what issues in their

view are important. The grounds of appeal, apart from the first ground, read like a shopping list

of matters with which the Claimant disagrees. Grounds 2 onwards is an attempt, in

sophisticated form, to re-argue factual issues that were before the Tribunal, and in those

circumstances we are not allowed to intervene.

Conclusion

51. We are grateful for the help we have received from counsel, but at the end of the day this is

a case where we have no alternative but to dismiss the appeal.

UKEAT/0050/11/LA-19-