Appeal No. EAT/506/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 28 October 1994

	Before

	HIS HONOUR JUDGE BULL QC

	MRS EDWINA HART

	MISS ANN MACKIE OBE

DRS PASSI, PASSI AND HANDA	APPELLANTS

MRS J E RAY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR JOHN BEGGS
(of Counsel)
Le Brasseurs
Drury House
34-43 Russell Street
London WC2B 5HA

For the Respondent	MR GORDON EXALL
(of Counsel)
Messrs Rees Page
44 Queen Street
Wolverhampton WV1 3BN

	JUDGE BULL QC:  This is an extemporary judgment in an appeal against the decision of an Industrial Tribunal sitting at Birmingham on 19 March 1993, whereby that Tribunal upheld a claim that Mrs Ray had been unfairly dismissed, based upon a constructive dismissal.  The full reasons were sent to the parties on 13 June 1993.  

	The facts fall within  a short compass.  Mrs Ray was a nursing sister and from the middle of the 1980s had been employed as a practice nurse by her doctor husband.  When he took medical retirement, the practice was taken over by the Respondent doctors from the month of April 1991.  They continued the employment of Mrs Ray and it is accepted that she had continuous service. 

	The Appellants behaved with great consideration to her at a time when her husband's retirement had been caused by his own suffering from a mental illness, which had affected not only his ability to practise, but also his relationship with his wife, which sadly led to a separation.  Matrimonial proceedings followed and there were a number of court appearances by Mrs Ray seeking injunctions to prevent her husband from returning to the former matrimonial home.

	The period over which the Industrial Tribunal had to focus their attention was between April and early June of 1992.  On 10 April the applicant telephoned the surgery to express the view that she was not well enough to attend, and sent a medical certificate diagnosing anxiety and depression. 

	Matters came to a head when Dr Passi complained that problems had arisen because of her absence since the beginning of April.   Mrs Ray pointed out that she was still unwell, suffering from anxiety and depression.  Her case was that the doctors' reply was that she could go to a general practitioner and be given an automatic certificate.  She was given her salary cheque and it was arranged that she should contact the surgery again when she had seen her doctor.  There followed a telephone conversation on Monday, 8 June, when Mrs Ray says that she spoke to the doctor and explained that she had been given a further certificate for another four weeks.  She said that the doctor told her that she was only entitled to four weeks' sick leave and it would be better, according to her, to:

		"put [her] shoes on and get back to work".

	Mrs Ray retorted that she was not sufficiently well to return to work and she was asked by the doctor what she intended doing and, according to Mrs Ray the doctor said that the pressure was being put upon other practice nurses by her absence.  She enquired whether it would be in the interests of the practice if she resigned and was told that this was up to her that it was her decision.  Mrs Ray said that she told the doctor that if the rule was that she was only entitled to four weeks' sick leave, she felt that she was in honour bound to leave and she would write formally resigning from her post.  Subsequently, on 10 June the Applicant wrote her letter of resignation, which was before the Industrial Tribunal.

	Mr Beggs, on behalf of the Appellants, submits that the question for this Tribunal is, "was there any evidence before the Industrial Tribunal which, judged reasonably and sensibly, could be said to have undermined the implied contractual obligation of mutual trust and confidence between the practice doctors and Mrs Ray?"  He quoted from the case of Pederson v Camden Borough Council and we have taken note of that quotation.  

	After a careful and most thorough examination of the evidence, the Industrial Tribunal, in our judgment, correctly directed itself upon the principles to be applied and specifically cited and followed the tests in the well-known case of Western Excavation (ECC) v Sharp [1978] ICR 221.  Mr Beggs concedes that there was evidence before the Industrial Tribunal on which it might have found that there was a breach of contract by the employers but challenges the finding that there was evidence upon which that Industrial Tribunal could find that such breach was a repudiatory breach going to the root of the contract.

	We adopt the approach which was made by Mr Justice Talbot, sitting in this Tribunal, in the case of The Post Office v Roberts [1980] IRLR 347, where, having in fact referred to the well-known case of Western Excavating (ECC) Ltd v Sharp, he said: 

		"We would agree with Phillips J's statement that there may be conduct so intolerable that it amounts to a repudiation of contract.  There are threads then running through the authorities whether it is the implied obligation of mutual trust and confidence, whether it is that intolerable conduct may terminate a contract, or whether it is that the conduct is so unreasonable that it goes beyond the limits of the contract.  But in each case, in our view, you have to look at the conduct of the party whose behaviour is challenged and determine whether it is such that its effect, judged reasonably and sensibly, is to disable the other party from properly carrying out his or her obligations.  If it is so found that that is the result, then it may be that a Tribunal could find a repudiation of contract."

	This, clearly, was the approach of this Industrial Tribunal.  We can find no error of law or misdirection in the way in which they approached the issues which they had to decide.  Despite the succinct and persuasive arguments of Mr Beggs on behalf of the Appellant before us, we cannot accept the proposition that there is no evidence upon which the Industrial Tribunal could have reached their decision.  We would draw attention to their findings at paragraph 17 of their full reasons:

		We find the applicant has established that in acting in the way they did the respondents were guilty of a breach of the implied term of mutual trust and confidence.  The applicant was a lady they knew was unwell and they were attempting to get her to return to work.  This they must have known was bound to put pressure on a person suffering from anxiety and depression.  Not only was the applicant told the remaining nurses were being forced to cope but that there was also a financial burden on the respondents.  Because she felt under pressure the applicant felt bound to resign."

	The notice of appeal sets out in paragraph 6 three ways in which the findings of the Industrial Tribunal are impugned.  It is said that these findings were not only as based upon errors of law, (and we have already found against the Appellants upon those submissions,) but also that their conclusions were perverse.  We cannot agree.  What matters in a case such as this is whether, as Lord Donaldson of Lymington, Master of the Rolls, pointed out in the very well-known case of Piggott Brothers & Co Ltd v Jackson and others [1992] ICR 88 at 92:

		"What matters is whether the decision under appeal was a permissible option.  To answer that question in the negative in the context of employment law, the appeal tribunal will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the industrial tribunal.  If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as 'perverse'."

There was as we have indicated clear evidence upon which this Industrial Tribunal could base its finding.

	For the reasons which I have set out, we are satisfied that there was here no error of law, indeed, any error that we can detect in the reasoning of this Industrial Tribunal and that there was evidence upon which they could reach their finding and that their finding was a permissible option.  We would express our appreciation of the skill with which this case has been argued by both Counsel but for the reasons which I have given this appeal falls to be dismissed and we so dismiss it.