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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> P J Drain v. Pinguin Foods UK Limited [2005] UKEAT 0329_04_1803 (18 March 2005) URL: https://www.bailii.org/uk/cases/UKEAT/2005/0329_04_1803.html Cite as: [2005] UKEAT 329_4_1803, [2005] UKEAT 0329_04_1803 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE WILKIE
BARONESS M T PROSSER
MR R N STRAKER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
- - - - - - - - - - - - - - - - - - - - -
For the Appellant | MR ![]() (Of Counsel) Instructed by: Messrs Graham Leigh Pfeffer & Co Solicitors 85 Chapel Street Manchester M3 5DF |
For the Respondent | MR DANIEL OUDKERK (Of Counsel) Instructed by: Messrs White & Case Solicitors 5 Old Broad Street LONDON EC2N 1DW |
A barely adequate decision upheld, but only just.
THE HONOURABLE MR JUSTICE WILKIE
"In the light of the above it is denied that you are entitled to either discipline or dismiss Mr D for any of the reasons set out in your letter dated 1 July 2003 or at all."
"Mr Drain's disciplinary hearing is an internal matter between him as our employee and the Company as his employer."
"We will consider the contents of your solicitor's letter of 04 July 2003 point by point, it having been confirmed by you to Mark Thrower at our last meeting that the solicitor's letter was, in fact, your submission to the Hearing, albeit written on your solicitor's letterhead. You also confirmed to Mark Thrower at our last meeting that there were no further documents you wished to table or rely upon at the Hearing."
and they then indicated that they would call Mr Addison as a witness at the disciplinary hearing. They conclude:-
"We do hope you attend as requested. We must advise you that if you do not attend, or refuse to speak when you attend, or simply walk out of the Hearing, we will have no choice but to hold the Hearing in absentia, which will include calling witnesses and taking statements to establish the facts of the case. We do hope it will not come to that."
"I acknowledge receipt of your letter dated 11 July 2003, received on 12 July 2003.
Due to the way in which the Company has treated me by repeatedly depriving me of and breaching my employment rights (which included the matters set out in Dawbarns Pearson's letter to the Company dated 4 July 2003 and those set out below) you leave me with no alternative other than to resign from my employment with the Company as Packaging Engineer with immediate effect.
Despite the fact that I have asked for the documents numbered 1-6 in Dawbarns Pearson's letter dated 4 July 2003 they have not been provided to me by the Company in advance of the meetings scheduled for 2pm on 9 July 2003 and 11am 14 July 2003.
I consider that the Company has constructively dismissed me."
"Due to my employer's unacceptable behaviour. I claim compensation for Unfair Dismissal in the Employment Tribunal. My employer's actions amount for fundamental breach of contract between employer and employee. Due to a number of serious incidents.
- Unacceptable behaviour
- Harassment, bullying, humiliation and physical abuse
- False, unsupported accusations
- Victimisation
I found myself being subjected to several unfair hearings, without any procedures in place, continual harassment, intimidation, lies, accusations. The company failed me as is their duty of care as my employer. I could not trust them to conduct a fair hearing. I had to resign my position – constructively dismissed.
Consider my employer was in breach of his duty to me as an employer under the Employment Rights Act 1996."
"We have considered very carefully whether in those circumstances (and we accept Mr Oudkerk's contention that those circumstances refer to the matters referred to in paragraphs 2 to 13) whether any breaches of contract have been committed by the employer."
They then state that the closest that their conduct got to breach of contract was the complaint that Mr Thrower and Mr Brown were conducting the disciplinary hearings whilst they had been witnesses to, at least one of the meetings, out of which the disciplinary proceedings arose. The Tribunal then set out why, in their view, that did not amount to a breach of contract per se and, in our judgment, they were entitled to come to that view.
"18. We can understand the applicant's annoyance to some extent at the way he perceived he was treated, but the question also has to be asked as to what extent he brought that upon himself. It was he who was adjourning meetings, changed his mind as he was entitled to and indeed walked out of meetings. We do think the employer was slow to take into account on the 4th and eventually on 9 July his representation via his solicitors and indeed his own letter of 9 July.
19. With the benefit of hindsight, it would have been preferable for the employer to meet the applicant's concern head on and say " We understand your point about judge and jury, but in the circumstances since I, Mr Thrower, witnessed the behaviour, and I am the Manager, I see no reason at all why anyone else should deal with this matter and further you have a perfectly clear procedure for appeal if in the event I find against you."
20. Thus while we have some sympathy for the applicant we feel he brought much of this upon himself. We have to decide whether he left as a result of a repudiatory breach by the employer. We are satisfied that no breach of contract has been established by the employer in this case and in such circumstances it is axiomatic that the claim must fail and we so rule."
"First, the Tribunal is slightly surprised by the nature of the request, since in its respectful view, it appears axiomatic from the findings that there was no breach of the implied term of trust and confidence by the employer. Secondly, it is of the view that no breach could be implied from the findings of facts as set out, we hold clearly, in the extended reasons promulgated on 17 February 2004. Thirdly, the applicant expressly raised the issue of breach of trust and confidence in the closing submissions. We considered that point in detail. We preferred the evidence of Mr McGregor and Mr Thrower to that of the applicant where there was conflict and also reached a finding that the appropriate person conducted the disciplinary hearing for the reasons set out in the decision. In such circumstances, in our view, there was very little scope for finding any breach by the employer of the duty of trust and confidence."
"In assessing whether there has been a breach, it seems clear that what is significant is the impact of the employer's behaviour on the employee rather than what the employer intended. Moreover, the impact will be assessed objectively."
What Mr Oudkerk says, is that in the first sentence of each of these two paragraphs, the Tribunal has explicitly considered the impact of the employer's behaviour on Mr Drain "we can understand the Applicant's annoyance to some extent" and "thus while we have some sympathy for the Applicant" and, in addition, they applied an objective test in paragraph 18 "but the question also has to be asked as to what extent he brought that upon himself" and, in paragraph 20, "We feel he brought much of this upon himself." He says that is sufficient to identify, both for the unsuccessful applicant and for this Tribunal, why it is that Mr Drain did not succeed and that the correct legal test was being applied.