Appeal No.	 EAT/297/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 June 1997

Before
HIS HONOUR JUDGE J HULL QC
MR R JACKSON
MR R N STRAKER

DR F M MAULE WALKER	APPELLANT

SOUTH CAMBRIDGESHIRE DISTRICT COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR C DIXON
61 Silverdale Avenue
Coton
Cambridge
CB3  7PP	

		JUDGE HULL QC:   This is an appeal to us by a lady, Dr Maule Walker, who was employed for more than six years by South Cambridgeshire District Council as a Support Services Officer.  Towards the end of her employment, and for several years before, she was employed in the Planning Department.  Her employment began in February 1988 and she resigned complaining of the way in which she had been treated on 24 January 1996, putting in her letter of resignation that she chose to do so on notice, and her notice expired on 24 March 1996.  As I say she complained of the way in which she had been treated by her employers and very shortly before her final departure she attended a grievance hearing which was held by three members of the authority.  

	Dr Maule Walker contended before the Industrial Tribunal that she had been unfairly dismissed.  That was her complaint.  The Industrial Tribunal sat at Bury St Edmunds for three days in October and December 1996.  They were presided over by Mr Mitchell with two Industrial Members and they, after hearing all the evidence, delivered the reasons for their decision.  They had to decide in the circumstances, she having resigned, whether she had been dismissed at all, before they went on to consider whether she had been unfairly dismissed.  

	The law is perfectly plain (although it may not be very easy to apply in particular cases).  If the employer has behaved in a way which shows a breach of the contract of employment and goes to the root of the trust between the parties, then the employee is entitled to say “this is too serious.  I am not going to put up with this treatment and I am going, whether on notice or otherwise”.  It must be a breach of a serious sort.  Obviously false allegations of dishonesty or misconduct by the employee, matters of that sort, deceit by the employer - there are various matters which courts and tribunals have held on many occasions sufficiently serious to entitle the employee to say “I am going” and in those circumstances the employee is doing no more than accepting a breach of contract by the employer as ending the contract and is entitled, as the statute says, to be treated as dismissed.  Was that the position here?

	The Tribunal had to go into all the facts.  They made a number of important findings.  They said that the two most important matters, they thought, were that the Applicant had failed in an attempt to have her post re-graded.  It was not a very senior post.  They found that Dr Maule Walker carried out a good many duties beyond the call of her duty under her contract.  She is an intelligent lady in middle years and well able to carry out responsibilities which would perhaps belong to a more senior position in the authority, and she did from time to time, entirely voluntarily, carry out those duties.  But when it was looked into by the authority (and it was looked into apparently with considerable deliberation) it was decided that although she was carrying out these extra duties and responsibilities, her actual duty did not entitle her to have her post re-graded and so it was not re-graded.

	The other matter which Dr Maule Walker complained of was that one particular individual, the Planning Director, in whose department of course she worked, was a man who bullied her.  He used to insult and bully her - that was the suggestion which she made.  Again, I do not need to go into it in detail.  The Industrial Tribunal heard a great deal of evidence and they found as follows:
“11	   We accept that Mr Hussell, the planning director, was capable of being brusque.  He was brusque with everyone.  He was not unkind or intimidatory.  He did not bully the applicant or intimidate her in any way as she alleges.”

	Fortunately there were various documents: they looked at those and they said the documents were simply not capable of the interpretation which she puts upon them.  They said that in general, where her evidence differed from that of others, they preferred the evidence of the other witnesses they heard.  They said that, amongst other things, they were not going to concern themselves with the details of the grievance hearing which took place very shortly before the end of her employment, because by then she had taken the irrevocable step of accepting what she said were the breaches of contract and given her employers notice, and of course that meant that the contract would inevitably terminate; and this grievance hearing followed the events on which she was obliged by law to rely in saying that her contract had been repudiated.  So they did not go into that in detail.  A complaint is made of that.  Clearly if they had thought that what was said at the grievance hearing illuminated what had gone before and helped them to decide that, then they would have gone into it, but as it was they thought that it did not.  It was not material for their consideration, and of course they were entitled to say that.  Any Tribunal is always entitled to say what evidence it thinks important and what it does not think important.  They said, after considering matters, that they unanimously rejected the claims of bullying made by this lady and they concurred with the councillors’ conclusions upon her complaints; they put it very shortly.  They considered other documents which they found simply did not support the view which this lady took of them and they found that indeed she had been treated generously and in a supportive way.  

	Among the other things that they found was that she had had sick leave during which she had pursued a private business and that whilst she was at work her employers tried to help her by allowing her to make and receive private telephone calls concerning that business and actually gave her a room to herself because that was tending to disturb other employees.  They directed themselves so far as the law is concerned quite correctly, in accordance with the leading case Western Excavating Ltd v Sharpe, that what they had to look for was matters which were so serious that they went to the root of the contract and amounted to a breach of contract and they said their function was to look at the employer’s conduct as a whole and determine whether it was such that its effect, judged reasonably and sensibly, was such that an employee could not be expected to put up with it.  They again directed themselves, quite correctly, that if they found that, it did not matter what the intentions of the employer were.  

	They also directed themselves, quite rightly, that a series of minor breaches might add up to a sum total which added up to the last straw and it would entitle an employee to say “this is too much; taken together it is too much, and I have put up with too much”.  They found that matters were not so, and they concluded as follows:
“25	   We have heard a considerable amount of evidence and reference has been made to several incidents which we have not referred to in our summary of facts.  It is not that we have overlooked them.  We have made express reference only to those matters which clearly affected the applicant the most.  In the event none of the incidents either separately or cumulatively amounted to a repudiatory breach.  We have no hesitation therefore in unanimously rejecting the applicant’s claim that she was dismissed.” 	

	They went on to show that they had acquired a considerable insight into the complainant’s character.  They continued:
“....She tended to complain about the behaviour of the employers for the most minor unintended slight and yet the employers overlooked her significant behavioural shortcomings.  The applicant is unable to see any fault in herself.  She is quick to find fault in others.  She needs always be proved to be right.  ..... There is no doubt that the applicant was very good at her work.  There was no breach of contract by the respondent which entitled her to resign.” 

	It seems to us, if we may say so respectfully to the Tribunal, an absolutely model decision; careful; precise; dealing only with matters which the Tribunal thought were relevant and containing directions of law which appear to us to be impeccable.  

	We have considered carefully what has been said to us on this appeal.  Four points are raised.  I am not going to go through them.  It is suggested by Mr Dixon, for the Appellant, that those raised points of law.  All we can say is that having considered them as carefully as we can, they do not seem to be points of law at all.  Insofar as they raise matters of law at all, they are quite simply matters which rest on a misapprehension as to the law.  
	In those circumstances we cannot find any basis upon which this appeal could succeed.  It is in our list under our Practice Direction as a Preliminary Hearing and we must therefore dismiss the appeal at this stage and we do so.