No A1/2002/1621
Neutral Citation Number: [2002] EWCA Civ 1466
IN THE SUPREME COURT OF JUDICATURE                         
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

								Royal Courts of Justice
								Strand
								London WC2

								Friday, 27th September 2002

B e f o r e:

LORD JUSTICE MUMMERY

LORD JUSTICE KEENE

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NWT FREIGHT FORWARDING LTD
Applicant

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OWEN
Respondent

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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MR M BARKLEM (Instructed by Russell & Creswick of Sheffield) appeared on behalf of the Applicant

The Respondent was not represented and did not attend

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J U D G M E N T
1.	LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Mr Barklem on behalf of NWT Freight Forwarding Ltd. The decision they wish to appeal is that of the Employment Appeal Tribunal on 17th May 2002. The Employment Appeal Tribunal dismissed the appeal of NWT Freight Forwarding against the decision of the Employment Tribunal that they had unfairly dismissed Mr Graham Owen. That decision is explained in the extended reasons of the Employment Tribunal, sitting at Sheffield, sent out to the parties on 28th March 2001. When the application for permission to appeal was made to the Employment Appeal Tribunal it was refused. A paper application was then considered by Lord Justice Pill on 9th August 2002 and it was refused. This is the renewed oral application for permission.
2.	The background to this case is that NWT Freight Forwarding carry out international freight operations. Mr Graham Owen was employed by them as a HGV driver from March 1992 until 16th May 2000. His case, which is succinctly stated in his IT1, is that he was constructively unfairly dismissed on that date. He made a number of allegations in his IT1 that during the course of his employment he had reason to complain of a number of his employer's actions concerning alleged unauthorised deductions from his wages and certain health and safety matters. His case was (paragraph 3 of his IT1) that he believed that the actions of his employer -
“were such as to amount to a fundamental breach of contract and as a result of [their] actions I believe I had no alternative but to terminate my contract of employment without notice. Accordingly on the 16th May 2000 I informed the respondent that I would be terminating my contract, without notice, as a consequence of the respondent's breaches.”
3.	The 16th May 2000 was, on his case, the culmination of a series of actions about which he complained. On that date he had returned from a continental trip to Spain involving a nine-day tour. Two hours after he had returned he was assigned to early duty the following morning to deliver a load to Manchester. He declined to do that. He walked out, resigned and then claimed that he had been constructively dismissed. The main point made by the employer was to dispute the allegations that it was their conduct which had brought about a constructive dismissal of Mr Owen and to say that he had resigned because he had obtained other employment.
4.	The matter came before the Employment Tribunal in Sheffield. In their extended reasons they made important findings of fact in support of their unanimous decision that he had been unfairly dismissed. The crucial findings, which are set out in detail in paragraph 4, are contained in sub-paragraph (m) where the tribunal said:
“On 16th May 2000, the applicant returned to the depot having completed a 9-day tour of duty, returning from Spain on that day. During the course of the afternoon, no later than 2 hours following his return, he was informed that he was required to attend for work the following day at 6.30 am in respect of a delivery to Manchester. In addition, he was informed that he would be required to attend Rotherham, Leeds and Bradford before departing the same day to France. Before the tribunal, the applicant stated that this instruction was resisted by him and his resistance was met with threat of disciplinary action. The respondent disputed this and contended that the applicant was the only person capable of performing the particular task and he had simply refused. In this respect, the tribunal prefers the evidence of the applicant and accepts that the following day's duties were expressed as an instruction with a sanction. In the view of the tribunal, the applicant was dealt a fait accompli. In normal circumstances, the applicant would have been allocated yard duties and given 24 hours' notice before being requested to return to long haul driving. In response to this demand, the applicant cleared his belongings from his vehicle and indicated in terms that he was not going to return to work. Mr White, on behalf of the respondent, confirmed that he did not expect the applicant to return. His expectation was realised. It was further stated by the applicant that the respondent's position had been expressed on 16th May 2000, by Mr Platt when he stated: `If you are thinking of going to a tribunal - I am the master.' The tribunal is satisfied that such a statement was made and that as at 16th May 2000, the applicant had communicated his dissatisfaction and his intentions to the respondent.”
5.	The tribunal's overall conclusion was that this was a case of constructive dismissal within the meaning of Section 95 (1) (c) of the Employment Rights Act 1996. They held in a section of their extended reasons under the heading “Last Straw”, contained in paragraphs 17 to 20 of the decision, that there had been a fundamental breach of contract. They referred to the various breaches of contract which Mr Owen alleged had been committed on earlier occasions. They said in paragraph 18:
“18 It is the view of the tribunal that the analysis of Glidewell LJ [in Lewis v Motorworld cited in the previous paragraph] applies with equal force to the facts of this case.”
6.	That citation related to the importance of looking at accumulated breaches of contract as a totality of a wrongful course of conduct. They went on to say:
“In arriving at this conclusion, the tribunal has regard to the fact that the wide range of incidences cited by the applicant spanned a period of 2 years. The common denominator of each was the imposition of a management decision without any meaningful regard to the interests or position of the applicant. In the view of the tribunal, Mr Hughes is correct when he states that what arose here was a gradual but sustained chipping away at the implied obligation of trust and confidence.
19 Turning to the events of 16th May 2000, the tribunal is of the view that the exchange which took place, did in fact represent a fundamental breach of contract. Whilst it must be recognised that the employee is required to follow the reasonable instructions of his employer, the tribunal is entitled to test to the reasonableness of the instruction and have regard to the manner in which the instruction is issued. As at 16th May 2000, the applicant expected, and was entitled to expect, duties within the depot to compensate for his overseas duties for the preceding 9 days. It was the evidence of the respondent that such practice was ordinarily given effect - and where it was not to be followed, 24 hours' notice was given to the employee concerned. The applicant was not given such notice. No supporting evidence was given on behalf of the respondent as to the availability of other drivers, save for the assertion that no one else was available. When issuing this instruction, however, the respondent resorted to a threat of disciplinary action. This conversation occurred within an office area and within the presence of assistant personnel.
20 The implied term relied on by Mr Hughes was articulated within the Mahmood case as requiring the employer not to act in a manner likely to damage the relationship of trust and confidence without reasonable and proper cause. The cause of the conduct on the part of the employer is one thing; the manner in which it is acted upon is another. In the view of the tribunal the respondent was in material and fundamental breach of contract in its dealings with the applicant on 16th May 2000. Even if the tribunal is wrong in this view, it is clear upon the evidence before the tribunal that incidents of 16th May 2000 represented the `last straw'. As is submitted by Mr Hughes, such had the effect of resurrecting the past incidents. When viewed within the context of the past conduct, the tribunal is of the view that the applicant was entitled to elect to treat the contract as at an end.”
7.	Mr Barklem, in his excellent submissions, accepted that it was necessary, for the purposes of establishing that there was a real prospect of this proposed appeal succeeding, to show there was an error of law in the decision of the Employment Tribunal. The way in which he put the case is that there was such an error in that the tribunal had found facts and, on those facts, constructed an implied term which was not supported by any evidence. The particular matters on which he focussed were in those passages which I have cited referring to the fact that in normal circumstances the applicant would have been allocated yard duties following his tour and that he would have been given 24 hours' notice before being requested to return to long haul driving. He also referred to another passage in the extended reasons in which the Employment Tribunal spelt out, in breaking down the implied term of trust and confidence, a particular implied term for which he said there was no evidence. In paragraph 11 of the extended reasons the tribunal articulated the implied term of trust and confidence as including a number of more specific obligations, the relevant one being at 11 (d):
“A right on the part of the applicant to be allocated yard duties following an overseas journey in accordance with the custom and practice within the respondent's workplace and/or that such should be subject to alteration upon reasonable notice.”
8.	Mr Barklem's point was that, having regard to the witness statements, the extracts of evidence before the Employment Appeal Tribunal and before this court in the form of the chairman's notes and also notes kept by the representatives of the parties, there was no factual basis for that implied term. He accepts that there was evidence in Mr Owen's cross‑examination that what he expected to do on 16th May 2001 was to load and unload trailers. There was evidence from Mr Owen that he did not think his employers were entitled to make him carry out the delivery on 17th May 2001. He points out, however, that in the evidence given by Mr White, who was in operational control of the depot, he had said in answer to questions from a lay member of the tribunal that they tried to grant driver employees yard duties on return from tours and that, in response to a question from the chairman, he agreed that continental trips were ordinarily punctuated by yard duties. 
9.	As Mr Barklem correctly points out, none of that evidence goes as far as to establish the custom or practice referred to in the tribunal's implied term and there is no evidence of the requirement of 24 hours' notice to entitle the employer to depart from that normal practice. So, submits Mr Barklem, the decision that this is a case of constructive dismissal is based on breach of an implied term for which there was no evidence of custom and practice. In those circumstances he went on to criticise the decision of the Employment Appeal Tribunal which dismissed the employer's appeal on the basis that there was no error of law in the decision of the Employment Tribunal.
10.	What is said in the grounds of appeal and is elaborated in Mr Barklem's skeleton argument is that the Employment Appeal Tribunal had itself erred in interpreting the Employment Tribunal's decision by asserting that matters at the heart of the decision, in particular the nature of the implied term alleged to have been breached, were no more than accretions and additions and re-casting the Employment Tribunal's decision into a form which its natural meaning could not reasonably bear. It was submitted that the Employment Appeal Tribunal had erred in substituting for the Employment Tribunal's reasoned decision its own summary decision based on supposed findings of fact, in particular, the employer's custom and practice and the reasonableness of an employer requiring Mr Owen to work certain hours, which the Employment Tribunal did not make; and the Employment Appeal Tribunal had also erred in failing to consider the consequences of the Employment Tribunal's finding of fact in relation to the implied term based on custom and practice, which proved not to be sustainable on the evidence before it, such consequence being that the fundamental breach found by the Employment Tribunal was insupportable.
11.	Like the Employment Tribunal, I can see the force of Mr Barklem's criticism of the way in which the Employment Tribunal formulated the specific implied term (which is set out in paragraph 11 (d) of the extended reasons) in the light of the lack of evidence available on custom and practice in that work place relating to yard duties after return from an overseas journey and to the requirement of 24 hours' notice. Like the appeal tribunal, however, I am of the view that, reading the Employment Tribunal's extended reasons as a whole, in particular their clear findings of fact in relation to the conduct of this employer, not only on 16th May 2000 but also having regard to the history of earlier conduct, this was a case in which the Employment Tribunal were entitled to find that there had been constructive dismissal by reason of the breach of the obligation of trust and confidence of a kind which is correctly described by the Employment Tribunal as “the last straw.” I agree with the way in which the Employment Appeal Tribunal put their conclusion in dismissing the employer's appeal. That conclusion is stated in paragraph 16 of the judgment of the appeal tribunal given on its behalf by Mr Justice Wall when he said:
“We have of course considered that approach with some care”
12.	(that is referring to the arguments of the appellant employer)
“and indeed when the matter was before this tribunal for preliminary hearing this was the issue that was identified and that is why the evidence was directed towards it. But in our judgment having considered the matter as I say with some care we think Mr Hughes is right on behalf of Mr Owen when he submits to us as he did this morning that the fundamental breach of an implied term of the contract which the tribunal identified was an unreasonable order to Mr Owen by the appellant to perform driving duties ie from 6.30 in the next morning which as Mr Hughes put it flew in the face of the employee's reasonable expectation based on custom and practice that he would not be required to perform such driving duties without a reasonable break. That in our view stripped of its additions is what the case is really about. Mr Owen was entitled in our view to rely on the fact that the unreasonable order to attend at 6.30 the following morning was accompanied on the tribunal's findings by a threat of disciplinary action and a warning not to take the matter to a tribunal. In our view, stripped of its accretions and unnecessary additions, the requirement to start again at 6.30 the following morning in the circumstances of this case was capable of being and indeed was a fundamental breach of Mr Owen's contract sufficient to justify him resigning.”
13.	In my judgment, that is a correct analysis of the circumstances on which Mr Owen relied for his case of constructive dismissal. Although criticisms can justifiably be made of certain findings of fact by the tribunal and the way they formulated the particular implied term, they were nevertheless entitled on the other facts found by them to come to the conclusion that this was a case of constructive dismissal.
14.	In my judgment, there was no error of law in the judgment of the Employment Tribunal. I would, in those circumstances, conclude that this appeal has no real prospect of success despite the forceful argument of Mr Barklem. I would refuse this application.
15.	LORD JUSTICE KEENE: I agree.
Order: Application refused