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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Benveniste v. Kingston University [2009] UKEAT 0176_08_1805 (18 May 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0176_08_1805.html Cite as: [2009] UKEAT 0176_08_1805, [2009] UKEAT 176_8_1805

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APPEARANCES

 

For the Appellant	DR R BENVENISTE (The Appellant in Person)
For the Respondent	MR D O'DEMPSEY (of Counsel) Instructed by: Messrs Charles Russell LLP Solicitors 8-10 New Fetter Lane London EC4A 1RS


 


SUMMARY

CONTRACT OF EMPLOYMENT: Notice and pay in lieu

The employer dismissed the employee with immediate effect but notwithstanding this paid her six months notice. The Claimant argued that by this payment the employer had waived the dismissal without notice and that she was entitled to be compensated for the loss of pension right for that period. The EAT dismissed the appeal and accepted that the test was whether the employer was entitled to dismiss the employee and that there was copious evidence upon which the Employment Tribunal could reach their conclusion.


 


HIS HONOUR JUDGE PUGSLEY

1. This is an appeal from the decision of the Employment Tribunal which dismissed that Appellant's claims for victimisation, unfair dismissal, unpaid wages and breach of contract. One of the difficulties in this case is the voluminous documentation which accompanies all the issues raised. In turning down most of the grounds of appeal Elias P observed that the grounds of appeal exceeded in length the decision itself. In a detailed summation of the position the President unequivocally turned down all the grounds of appeal save for the one matter which is the subject of the appeal. The Appellant is an experienced and enthusiastic litigant. She appealed the decision of the President to reject the other grounds of appeal and that was the subject of a detailed judgment of His Honour Judge McMullen QC when those other grounds of appeal were dismissed. The Appellant appealed the decisions concerning case management issues and these have been the subject of unsuccessful appeals both to this Tribunal and the Court of Appeal. The amount of time which has been devoted to this case is wholly disproportionate to the amount at stake. As the Tribunal found, this Claimant had the windfall of being paid her full entitlement to her notice period. We are only concerned with her wrongful dismissal case and the only claim she would have would be a claim for the loss of six months pension entitlement. The assessment of pension loss is a complex issue. However on any view of the matter the sum would be relatively modest.
2. A preliminary issue has arisen before us, namely we should allow an appeal from the Registrar's refusal to allow the Appellant leave to adduce at this late stage the statement of Dr H. Fredrics. It was a matter within the discretion of the Registrar to refuse this application. We have looked at the evidence and do not propose to go into great detail as to the merits of the appeal and the arguments raised. Even if we were to allow the evidence to be called it does not in our view add anything to the case at all. This is a fact specific decision by the Tribunal; the treatment of another employee in the context of the facts of this particular case is irrelevant.
3. Before dealing with the one ground of appeal which we have to consider it will assist if the ground of appeal is placed in its factual context. The Appellant was employed as a mathematics lecturer. The Tribunal sets out in the body of its decisions the nature of the problems which the Appellant's behaviour caused. In the context of this case the relevant issues are set out in paragraph 46 onwards. The Appellant would only attend the university for her specific lectures and her scheduled student contact hours (3 hours a week). This caused considerable problems for her colleagues who had to cover for her. This resulted in Professor Davis producing a detailed guidance note which resulted in lecturers only being allowed to work from home for one day a week and that any further home working should only be by agreement. The unions were informed and raised no objection.
4. The Appellant argued that this was a breach of contract and refused to comply with this request. The Appellant commenced proceedings in the Epsom County Court alleging that the change in the working pattern was a breach of contract. The action was dismissed. At paragraph 50 of the decision the Employment Tribunal noted that the issue as to whether this was a breach of contract was res judicata as it had been determined by the county court action. However the Tribunal did go on to consider the matter and decided that the changed pattern of working did not constitute a breach of contract. The Tribunal noted that under Clause 5 of the contract the Claimant's usual place of work was the university but may involve other locations as agreed. The Claimant's time was divided into three notional parts; teaching time, administrative / marking time and self-managed time designed for personal development. The Tribunal rejected the Claimant's contention that all time outside the teaching commitments was self-managed.
5. The decision of the Tribunal sets out the way in which the management sought to resolve the issue in the light of the attitude and actions of the Claimant. In a clear and careful decision the Tribunal set out the various steps along the route which ultimately led to the dismissal. In the end the Claimant refused to attend the disciplinary hearing. Professor Scott considered the options and decided to dismiss with immediate effect.
6. In a letter, set out at Page 85 of the bundle Professor Scott said this:

"I have concluded in summary that you continue to refuse to comply with reasonable management instructions and I have no alternative but to dismiss you with effect from today's date, 13th August 2004."

The letter continues:

"as you are entitled to six months' notice, you will be paid six months notice in lieu of notice and you will no longer be required to work for the University. Your last day of service will be today, 13^th of August."

That letter is poorly drafted in that it is claiming to dismiss the Claimant forthwith and then proceeds to give her six months salary in lieu of notice.

7. The one ground of appeal which we are to consider is the Appellant's contention that the Employment Tribunal erred in law by rejecting the argument that the Respondent must be taken as waiving their right to rely on the Appellant's alleged gross misconduct; that the Employment Tribunal reached conclusions not supported by the evidence and failed to consider the relevant evidence and that it was an error of law for the Tribunal to find that honestly felt protests against ill treatment could amount to a deliberate intention not to be bound by the terms of the contract. Further the Tribunal was in error in finding that the decision of the county court made issues res judicata.
8. The central fallacy on which the Appellant's case rests is to confuse the test for wrongful and unfair dismissal. The letter written by the Vice Chancellor cannot be construed in any other way than as informing the Claimant that she was dismissed with immediate effect.
9. In cases of unfair dismissal attention is focussed on the perception of the employer; did the employer believe that the employee was guilty of the culpable conduct alleged and was that belief sustained on reasonable grounds having made such enquiries as were appropriate in all the circumstances. Thus if A, an employee, was dismissed by B, the employer, in circumstances which constituted unfair dismissal the fact that when B subsequently found he had good reason for dismissing A would not render the dismissal fair since it was not within the knowledge of the employer at the time when the decision to dismiss was made. However although the subsequent discovery of culpable conduct might affect compensation which might be awarded it would not provide a defence to unfair dismissal. It is trite law to say that ever since the Boston Deep Fishing v Ansell [1888] 39 ChD 339 case it is well established that in a case of wrongful dismissal the correct test is whether at the time of the dismissal there were grounds for dismissal and not whether those grounds were known to the employer and were the reasons for the dismissal.
10. We do not consider it necessary to enlarge upon that point since that is settled law. After this case had concluded we considered the case of Weathershield Ltd v Sargent [1999] ICR 425. We drew the parties' attention to the matter and invited their submissions. The facts of that case were that the applicant, who was employed by a car rental company, was instructed to tell any "coloureds or Asians" who phoned up that there were no cars available.
11. The applicant felt she could not operate such a racist policy. She decided she could not work there and resigned without giving any reason. She thereafter went to the local job centre and thereafter gave the real reason for her decision namely her employer's racist policy.
12. As the judgment of Pill L.J makes clear, notwithstanding dicta to the contrary in such cases as Walker v Josiah Wedgewood & Sons Ltd [1978] ICR 744 EAT, there may be cases in which an employee may succeed in alleging constructive dismissal even though the employee does not give the real reason for leaving at the time. The fact finding tribunal is entitled to reach its own conclusion, based on the acts and conduct of the party, as to the true reason (paragraph D 432) We consider this case reinforces a central tenet of contract law which can be overlooked and buried by the mass of jurisprudence on unfair dismissal, namely that in considering whether there has been a breach of contract the court or tribunal is considering whether there has been a breach of contract and it is not considering the perception of the parties; nor is it bound by what the party say about their subjective reason for the dismissal or the resignation. As Underhill J put it in the appeal against a case management decision at paragraph 15 of the appeal (UKEAT/0008/07/J0J see page 150 of the bundle)

"the question as a matter of law is not what subjectively were the reasons for the dismissal, but whether grounds for summary dismissal in fact existed: this has been the law since the decision in Boston Sea Fishing and Ice Co v Ansell 1888] 39 Ch D 339."

13. The Tribunal dealt with the Appellant's submissions at paragraph 105 of their decision in this way:

"We are satisfied that the Claimant's conduct immediately prior to her dismissal amounted to a repudiatory breach of contract, which the Respondent accepted when they dismissed her. She had made it crystal clear that she would not accept the instruction as to working away from the university – even though her claim for breach of contract had been unsuccessful. Her attitude to management was illustrated by the email correspondence passing between herself and Professor Morris regarding her holiday in the summer of 2004... It is clear that the Claimant was not prepared to be managed. Her conduct disclosed a deliberate intention not to be bound by the terms of her employment contract and the Respondent was entitled to dismiss her without notice. She has therefore received more than her legal entitlement and no further amounts are due. The fact that the Respondent did not dismiss her for gross misconduct is beside the point. The issue is whether they had been entitled to. We find they were. Dhopatkar v Doshi Financial Services 1999 relied on by the Claimant is of no assistance to us on this issue. We do not accept the Claimant's submission that that, by paying the Claimant salary in lieu of notice…the Respondent must be taken as having waived their right to rely on the argument of gross misconduct."

14. This Tribunal had the opportunity of considering the evidence. At Paragraph 28 of the decision the Tribunal note that the Claimant's statement ran to some 125 pages. The Tribunal allowed the Claimant to read her statement and this took some two days for her to complete. The Tribunal meticulously examined the evidence and reached clear and comprehensive findings of fact. On reading through those parts of the decision in which the Tribunal chronicles the history of the Claimant's actions the path by which the Tribunal reached its conclusion that the Claimant had made it crystal clear that she would not accept the instruction as to working away from the university can be clearly identified.
15. Moreover we accept that the issue, as the Tribunal identified it, was whether the Respondents were entitled to dismiss the Claimant. We consider the Tribunal were correct to consider the issue of whether the changed working practices constituted a breach of contract as an issue to which res judicata applied but in any event the Tribunal reached their own decision on the matter.
16. We consider that there is a real danger of over analysing decisions and subjecting them to a myopic scrutiny which distorts the true picture. This Tribunal reached a decision to which they were eminently entitled to reach on the facts before them. This Claimant had taken such an intransigent attitude that she had made it abundantly clear that she was not going to accept an essential term of the contract; that she was not going to be managed. As a matter of reality it is difficult to see how any employer could have dealt with this matter other than by summary dismissal. This was not a sudden, ill considered and precipitate decision. As Professor Scott's letter made clear the Claimant had been given every opportunity to put her case and no reasonable employee could have been under any illusion about the consequences of her attitude. The Appellant cannot complain about the fact that she honestly believed that she was justified in her attitude. This is not a case in which an employer suddenly and capriciously dismisses someone for conduct which they had hitherto ignored or had made only token efforts to control. Nor is it a case in which an employer waived its right to dismiss an employee. This is a case in which an employee was very clearly dismissed in circumstances in which the employer was entitled to have dismissed her summarily and as the Tribunal found she received more than her legal entitlement.

Conclusion

17. This is a case of wrongful dismissal. In our view the letter written by the Vice-Chancellor can, as we have found, only be construed as informing the applicant that she was dismissed with immediate effect.
18. The fact that the letter told her that she was to receive a payment in lieu of notice to which she was not entitled does not detract from, or alter, the essence of the letter which communicated to her in clear and unequivocal terms that her contract was terminated with immediate effect. The Tribunal applied the correct test and, despite the arguments put to us by the applicant, there was abundant evidence upon which the Tribunal are entitled to reach the conclusions set out in paragraph 13 of the judgment. The appeal is dismissed.