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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Warren v. F C Brown Ltd [1999] UKEAT 5_99_1105 (11 May 1999) URL: https://www.bailii.org/uk/cases/UKEAT/1999/5_99_1105.html Cite as: [1999] UKEAT 5_99_1105 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MR
MR
![]() ![]() ![]() | APPELLANT |
![]() ![]() ![]() ![]() |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
Copyright
1999
![]() ![]() |
MR ![]() ![]() ![]() (SOLICITOR) Messrs ![]() ![]() ![]() The Old ![]() ![]() Ascot Berkshire SL5 7ER |
![]() ![]() |
JUDGE PETER CLARK:
This is an appeal by Ms
Warren
against a
decision
by the London (South) Employment Tribunal
dismissing
her
complaint
of unfair
constructive
dismissal
against her
former
employer, the Respondent,
F
C
Brown (Steel Equipment) Ltd. That
decision
with
extended reasons, promulgated on 28th October 1998
followed
a hearing held on 15th October.
The Appellant was
employed by the Respondent as a Sales Office Supervisor
from
26th
February
1996 until her resignation effective on 29th May 1998. The
circumstances
leading to her resignation, the Tribunal
found,
were
these. The Appellant
was
a non-smoker.
From
June 1996 she
worked
in an open-plan office. There
were
13 employees in that office of
whom
6
were
smokers. She
complained
that exposure to
cigarette
smoke
was
injurious to her health. Her immediate manager
from
1st November 1997
was
Mr
David
Williams.
He said that he
would
look into her
complaint.
In late November the Appellant and another member of staff in the office had an argument over
whether
fans
should be on or off. She
wanted
them on. As a result of her
complaints
Mr
Williams
conducted
a survey of the staff as to their attitude to smoking. 11 out of the 13 opposed a smoking ban. Mr
Williams
contacted
ventilation
contractors
and
was
quoted between £4,600 - £5,600 to install a ventilation system. Even then, it
would
not guarantee a smoke-
free
environment.
On 12th March 1998 Mr Williams
held a meeting in order to try and seek a solution. Mr Blackwell, the Sales
Director,
Mr
Dawson,
Human Resources Manager and all members of the sales office staff attended. He hoped to obtain a
consensus.
This proved impossible. The Appellant and one other employee insisted on a smoking ban. On 19th March Mr
Williams
suggested a solution by moving the Appellant nearer to the
door
and next to a
window.
She agreed and made the move but other employees
complained
that the open
window
was
draughty
and they
closed
the
door.
Subsequently, Mr Williams
and Mr Blackwell met and
decided
to
find
another job
for
the Appellant at the same rate of pay in a non-smoking office. On 9th April Mr
Williams
went
on holiday. The Appellant
went
to see Mr Blackwell
who
was,
she said, very sympathetic. His evidence
was
that he offered her a job in a smoke-
free
office and she agreed to accept it. Her evidence
was
that she
felt
that she
could
not move
without
an official announcement. She
was
not prepared to move
without
one. She told Mr Blackwell she
would
wait
until Mr
Williams
returned
from
holiday.
On 17th April Mr Blackwell instructed the IT Manager to install a modem for
the Appellant in her new smoke-
free
office.
When
he, Mr Blackwell returned to the office two
days
later, he heard that the Appellant herself had postponed the
completion
of that installation.
When
Mr
Williams
returned
from
holiday he told the Appellant that her move
could
not take place
for
6 or 7 months. This is borne out by a memorandum
from
Mr
Williams
to Mr Blackwell proposing that the Appellant's and other
changes
should be effected on 1st October 1998. She
was
greatly upset by this news.
On 30th April Mr Williams
met a
deputation
of staff
complaining
that the Appellant had insisted on keeping the
door
open, thereby
causing
draughts.
He
decided
to
call
a meeting of staff the
following
day
at
which,
if no
consensus
emerged, he
would
impose a solution. He tried to speak to the Appellant
who
was
upset and refused to talk to him. She
decided
that enough
was
enough. Management
was
not prepared to resolve the position.
When
Mr
Williams
arrived
for
work
on 1st May he
found
the Appellant's letter of resignation on his
desk.
It was
the Appellant's
case
before the Tribunal that the Respondent
was
in
fundamental
breach of their implied
duty
to provide and maintain a reasonably safe
working
environment in arrangements they made regarding smoking, such as to entitle her to resign in
circumstances
amounting to
constructive
dismissal.
The Tribunal
considered
the
decision
of this Employment Appeal Tribunal in
Waltons
& Morse -v-
Dorrington
[1997] IRLR 488,
where
this Tribunal upheld an Employment Tribunal's
decision
that the Employer had repudiated the
Contract
of Employment by
failing
to impose a smoking ban and to
deal
timeously and properly
with
the Applicant's
complaints
about smoking on the
facts
of that
case.
The Tribunal distinguished
that
case
and
found
that here, the Appellant had been given the opportunity to move to a new job in a smoke-
free
office, but had turned
down
the opportunity because she
was
not prepared to move
without
a
formal
announcement. The Respondent had acted properly on her
complaints.
The
claim
was
dismissed.
We
remind ourselves that on appeal, our jurisdiction is limited to
correcting
errors of law. In Pedersen -v-
Camden
Council
[1981] ICR 674, applied in
Woods
-v-
W
M
Car
Services (Peterborough) Ltd [1982] ICR 693, the
Court
of Appeal has stated that the question as to
whether
the Respondent is in repudiatory breach of the
Contract
of Employment is essentially one of
fact
for
the Employment Tribunal. In this appeal Mr
Dees
takes essentially two points.
First,
that the Tribunal's
decision
on the
facts
of this
case
was
perverse
within
the meaning of that expression as explained by Mummery J in J Stewart -v-
Cleveland
Guest (Engineering) Ltd [1994] IRLR 440, 443.
We
have
considered
that submission but
we
reject it. It seems to us, on the
facts
as
found,
that it
was
open to the Tribunal to
conclude
first,
that the Employer had taken all reasonable steps to
deal
with
the Appellant's grievance
whilst
taking into account the views of other employers. Secondly, that it
was
entitled to pay particular attention to the
fact
that the Appellant herself prevented a move to a smoke-
free
office. Mr
Dees
submits that rather than hold the Appellant responsible, it
was
the Respondent's
failure
to make the necessary announcement. It seems to us that that
was
a matter of
fine
judgment
for
the Industrial Jury. It is not a matter
for
us.
Secondly, he submits that the Tribunal failed
properly to
distinguish
this Employment Appeal Tribunal's
decision
in
Waltons
& Morse -v-
Dorrington.
We
disagree.
It seems to us that in
Dorrington,
this Employment Appeal Tribunal upheld the
findings
of the Employment Tribunal
which
showed that the Employer there had
failed
to take any proper steps to
deal
with
the Employee's grievance about exposure to smoke. That is not this
case
as the Tribunal
found
and
we
think that insofar as any principle emerges
from
Dorrington,
the Tribunal in the instant
case
has not
fallen
foul
of that principle. In these
circumstances
we
have
concluded
that this appeal raises no arguable point of law to go
forward
to a
full
appeal hearing and that accordingly it must be
dismissed.