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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gill v. Humanware Europe Ltd [2009] UKEAT 0312_08_2702 (27 February 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0312_08_2702.html Cite as: [2009] UKEAT 0312_08_2702, [2009] UKEAT 312_8_2702 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MS J L P DRAKE CBE
MR D G SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR ![]() (of ![]() Instructed by: Free Representation Unit 6th Floor 289-293 High Holborn London WC1V 7HZ |
For the Respondent | MR ROBIN WHITE (of Counsel, who did not appear below) Instructed by: Messrs Wilson Browne Solicitors Kettering Parkway South Kettering Venture Park Kettering Northamptonshire NN15 6WN |
SUMMARY
PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
UNFAIR DISMISSAL: Constructive dismissal
The EAT, as the tribunal of fact, found that a three-person Employment Tribunal showed apparent bias. The Employment Judge twice allowed private access to himself by counsel for the Respondent, without reference to the Claimant in person, to raise case management issues, and matters very personal to the Claimant or the Respondent's manager.
Further, the Employment Tribunal wrongly excluded the Claimant's evidence of two grievances the handling of which he alleged contributed to the final straw causing his resignation. Judgment set aside and remitted to a fresh Tribunal.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The issue
"2. The issue that the Tribunal has to resolve is to identify why the Claimant resigned. Whether that was as a result of a repudiatory breach by the respondents of his contract of employment and whether in any way he waived that breach between the breach and the resignation so as to affirm his contract."
The facts
"25. Something must have happened thereafter to make him change his mind and we asked him to explain to us what that was. His witness statement and his claim form suggests that the final straw lay in the fact that in December or January of each year he was accustomed to receiving a letter from the respondents telling him what pay increase he was receiving for the following year. He had received no such letter in 2006/07. If that was the 'final straw' it took him another two or three months to decide to resign. We do not think that the Claimant's decision to resign really had anything to do with that. Even if it did he had waived any breach by the subsequent delay. Even if he had not no employer is contractually obliged to award pay increases and so a failure to do so can hardly amount to a repudiatory breach."
"26. …We see no reason to conclude that the decisions made by either of those managers, (that is Mr Polson and Dr Mander) were not decisions that lay within the band of reasonable responses of a reasonable employer."
As a result of those findings the claim was dismissed.
The Claimant's case
The Respondent's case
The legal principles
"50. I take the view that what was said about workmanship (whether or not it was a discussion) ought to have been reported to Mr. Cordell for his consideration at the same time as the report of the 5d matters. In cross-examination, Mr. Sutcliffe [the adjudicator] said that on 27 June he had not decided that defects were no longer an issue, but he added, Mr. Hackett was seeking to persuade him that defects were no longer an issue. In other words, he heard submissions from Mr. Hackett on an important matter that he did not report to Mr. Cordell. … Mr. Sutcliffe honestly believes that he reported the only matter of importance in that telephone call, but in my view he is wrong in that belief. …"
The Judge held at paragraph 69 that it is not in accordance with the rules of natural justice to fail to communicate with the parties on equal terms.
"This case raises another issue of principle which, so far as I can ascertain, has not yet been considered by this court. If the employer is in breach of a contract of employment, of such seriousness that the employee would be justified in leaving and claiming constructive dismissal, but the employee does not leave and accepts the altered terms of employment; if subsequently a series of actions by the employer might constitute together a breach of the implied obligation of trust and confidence; is the employee then entitled to treat the original action by the employer which was a breach of the express terms of the contract as a part - the start - of the series of actions which, taken together with the employer's other actions, might cumulatively amount to a breach of the implied terms? In my judgment the answer to this question is clearly 'yes'."
"32. We derive the following principles from Omilaju:
(1) the final straw act need not be of the same quality as the previous acts relied on as cumulatively amounting to a breach of the implied term of trust and confidence, but it must, when taken in conjunction with the earlier acts, contribute something to that breach and be more than utterly trivial.
(2) Where the employee, following a series of acts which amount to a breach of the term, does not accept the breach but continues in the employment, thus affirming the contract, he cannot subsequently rely on the earlier acts if the final straw is entirely innocuous.
(3) The final straw, viewed alone, need not be unreasonable or blameworthy conduct on the part of the employer. It need not itself amount to a breach of contract. However, it will be an unusual case where the 'final straw' consists of conduct which viewed objectively as reasonable and justifiable satisfies the final straw test.
(4) An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely (and subjectively) but mistakenly interprets the employer's act as destructive of the necessary trust and confidence."
Although that case was the subject of attention by the Court of Appeal [2008] EWCA Civ 17, constructive dismissal was not considered and the above therefore remains, as Counsel accept, good law.
Apparent bias
"3. It was clear, both from the claim form and from the claimant's written witness statement, that Mr Gill wanted to give lengthy evidence in relation to the circumstances surrounding those earlier grievances. It seemed to me appropriate to explore with the parties the relevance of that evidence. It was apparent from what Mr Gill told me that those earlier grievances had, in fact, been resolved in his favour. [Counsel], on behalf of the respondents, conceded that if Mr Davis, the manager in question, had been motivated by personal malice towards the claimant in failing to promote him, that would amount to a breach of the implied term of trust and confidence. It was also conceded by her that Mr Gill could have held the perception that Mr Davis would have some feelings of resentment towards him because of the outcome of those earlier grievances. Accordingly, it was clear that the key issue was whether or not Mr Davis's reasons for not promoting the claimant related to those grievances or, as the respondents contended, to his performance at interview.
4. It therefore seemed to me that the evidence in relation to those earlier grievance had no relevance, whatsoever, to the issue that the tribunal had to determine, save that those grievances had taken place and that Mr Gill could have been left with that perception as a consequence of the outcome of those grievances. In those circumstances, [Counsel] indicated that she would not cross-examine the claimant upon the parts of his witness statement that related to those earlier grievances and I concluded, therefore, that there was no need for the claimant to read out that extensive section of his witness statement, on the basis that it was available to the tribunal to read for themselves if we had thought it necessary to do so. Those matters were explained to Mr Gill."
Thus a decision was made without input from the Claimant that his case upon the previous two grievances, the way in which the third grievance evolved and the reason for his resignation, would not be heard as evidence. We give our decision on this in para 28.
"11. I have read what Mr Gill has to say in paragraph 19 of his affidavit. I have no note of this incident, but I do have a vague recollection of something of this sort occurring. As I recall it, I had called for a five-minute break in the Hearing at the end of the evidence of Mr Davis. As I remember it, either as we were retiring or when we were about to go back into the tribunal, [Counsel] came to the door of the retiring room wanting to provide an explanation for some part of Mr Davis's evidence. I remember that it related to some very personal issues, either in relation to the claimant or Mr Davis, which were, as I recall it, issues that I had already picked up from the evidence in the case. I did not, as far as I can recall, enter into any discussion with [Counsel] about that. I am sure that [Counsel] may have a more precise recollection of this incident. I cannot recall whether I entered into any discussion with the claimant about Counsel's intervention."
Constructive unfair dismissal