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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Arriva Motor Retailing Plc (t/a Arriva Ford Nottingham) v. Herring [2000] UKEAT 471_00_0211 (2 November 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/471_00_0211.html Cite as: [2000] UKEAT 471__211, [2000] UKEAT 471_00_0211

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APPEARANCES

 

For the Appellant	MR ROBIN BLOOM Solicitor Messrs Dickinson Dees Solicitors St Ann's Wharf 112 Quayside Newcastle Upon Tyne NE99 1SB
For the Respondent


 


JUDGE H WILSON

1. This has been the preliminary hearing of the proposed appeal by the Respondent to the original application against the unanimous decision of the Tribunal sitting in Nottingham in November and December 1999 that the Applicant had been unfairly dismissed and should be paid compensation.
2. Mr Bloom has appeared on behalf of the proposed Appellant and has amplified the submissions made in his skeleton argument orally, before us, today. Additionally, he complains that the Tribunal erred by stating that the Respondent had not pleaded in the alternative that the dismissal was fair, and also that the Tribunal had erred in failing to deal with the lack of contribution in detail.
3. We have considered all of those matters in the light of the Decision which was sent to the parties on 8 March 2000 together with extended reasons for it. What had happened was that there had been a disagreement between the Applicant and the Respondent company's Used Car Manager, as a result of which the Applicant had gone home and, amongst other things, had written to say that he considered that he had been dismissed.
4. The Tribunal, thereafter, was concerned with other matters during the first 10 days of August. It is clear from their Decision that they concluded that although the Applicant had thought he was dismissed on 1 August, he was found not to have been. The Tribunal set out the proper parts of statute law in paragraph 5 of their extended reasons and we note that on behalf of the company, it was submitted that the Applicant had not been dismissed; but if he had, then his own conduct constituted 100% contributory negligence, and the point about fairness therefore was never part of the case.
5. The Tribunal went on to refer to the classic statement concerning constructive dismissal, contained in Lord Denning's judgment in the case of Weston Excavation (ECC) Ltd-v-Sharp [1978] IRLR 27. The Tribunal also reminded itself of what had been said in Mahmud-v-Bank of Credit and Commerce International SA [1997] ICR 606 House of Lords. In that case, it was held that in every contract of employment, there was an implied term that :-

"The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee."

We can find no fault with those instructions in law, which the Tribunal gave to itself.

6. We turn now to paragraph 9 of the Decision which contained the findings of fact. In light of the way in which the proposed appeal has been put, we quote that paragraph in full:-

"9 The Tribunal had to consider how and when the contract came to an end after 1 August 1999. The Tribunal decided that the respondent's conduct amounted to a breach of the applicant's contract of employment, which entitled him to resign without notice. In reaching that conclusion it took into account the fact that the respondent had suspended the applicant in circumstances which were inappropriate. Mr Highley gave evidence that he anticipated only issuing a first warning to the applicant. In those circumstances it was very puzzling that a decision was taken to suspend the applicant for the matter which would have to be investigated. It was particularly inappropriate bearing in mind that the applicant was already absent from work following the incident on 1 August. The decision to send the letter dated 4 August had to be considered in context with what had happened on 1 August. The respondent's failure to communicate with the applicant in relation to the incident on 1 August undoubtedly compounded the situation. The respondent ought to have explained its view of what had happened and in particular stressed that the applicant had not been dismissed. It ought to have confirmed that Mr Stanford had exceeded his authority and that the incident should be allowed to blow over. It should have been stressed that as a valued employee it wanted him to come back to work and that he was still employed. The failure to address the incident which occurred on 1 August led understandably to certain confusion in the applicant's mind. The applicant was unaware that any complaint had been made about him and more importantly, was unaware that before 1 August incident Mr Highley had pencilled in a date for a disciplinary interview. In the applicant's mind the suspension to allow an investigation for a disciplinary interview and the incident which occurred on 1 August were linked. The respondent did nothing to disabuse the applicant of that belief. Mr Highley's letter of 6 August 1999 compounded the failure to communicate and explain the respondent's position. The conduct of the respondent was such as it was calculated to undermine the relationship of trust and confidence between the parties. That amounted to a breach of the applicant's contract of employment. The applicant was entitled to resign which he did by a letter dated 10 August 1999."

It seems us that that lengthy paragraph encapsulates the proper application of the law about which the Tribunal had previously directed itself to the facts which it found proved.

7. In our view the conclusions reached by the Tribunal were conclusions which it was open on the evidence for a Tribunal, properly directing itself and reasonably applying the law, to reach, and accordingly we can find no reason to disturb their decision, and neither do we consider that, if the matter went to full argument, it would succeed.
8. There remain the matters raised, at the eleventh hour by Mr Bloom, concerning the fact that the Tribunal fell into error in stating that the company had not pleaded a fair dismissal. That clearly was an error because that is a ground which is set out in the amended response to the application. It is not however significant, because it was not relied on in argument before the Tribunal (see particularly paragraph 6 of the Decision) and also because of the decision about constructive dismissal in the circumstance of which it is implicit that the dismissal was unfair.
9. So far as contribution is concerned, on the facts set out in paragraph 9, there was nothing found to support a finding of contribution and no further exposition was called for. Accordingly, this appeal must be dismissed at this stage.