Appeal No. EAT/0133/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 June 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR D NORMAN
MR R N STRAKER

MR P J O'BRIEN	APPELLANT

NATIONAL GLASS CENTRE LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	JOHN FALKENSTEIN
(Of Counsel)
Messrs McKenzie Bell Solicitors
19 John Street
Sunderland
SR1 1JG	

JUDGE PETER CLARK

1.	This is an appeal by the Applicant before the Newcastle-upon-Tyne Employment Tribunal sitting at Thornaby, Mr O’Brien, against that Employment Tribunal’s majority decision promulgated with extended reasons on 30 November 2000 (the Chairman, Mrs G A Hardy being in the majority), dismissing his complaint of constructive unfair dismissal.

2.	Until October 1999 the restaurant at the National Glass Centre, the Respondent, was run by an outside catering company, Zulu Foods Ltd.  The Managing Director and Chief Chef of Zulu was Peter Robson.  The Appellant had commenced employment with Zulu as a kitchen porter in June 1998.

3.	In October 1999 the restaurant service was brought in-house in circumstances amounting to be a relevant transfer under the TUPE Regulations.  Thereafter Mr Robson continued as Chief Chef but as an employee of the Respondent and the Applicant’s employment also continued with the Respondent.

4.	The majority members of the Employment Tribunal accepted evidence from Mr France, the Respondent’s catering operating manager at the relevant time, who himself had some 24 years experience in the industry, that industrial language was commonly used by staff working under pressure in the heat of the kitchen.

5.	The Applicant and Mr Robson enjoyed a good relationship up until Christmas 1999.  Then, on 28 December 1999 an altercation took place between the two men over the Applicant's working arrangements during the holiday period.  

6.	It culminated with Mr Robson ordering the Applicant off the premises with some swearing and the Applicant, so the Employment Tribunal found, contrary to his evidence, issuing threats of physical violence against Mr Robson.  The Applicant was:

“loud and angry” 

As he left the building.

7.	On 27 April the Applicant approached Mrs Milnes, the Finance Manager, over a query about his pay.  As he was speaking to her Mr Robson interrupted their conversation, saying to the Applicant:

“I want you fucking in here now”

Pointing to the kitchen

“I am up to my neck in shit, you can sort this out later on”.

8.	The Applicant went into the kitchen and Mr Robson said:

“I want those fucking boxes put into the freezer”.

The Applicant put one box into the freezer and then decided to walk out.  Mr France sought to pacify him after he said that he could not work with Mr Robson and that he was going to leave, but the Applicant responded:

“No, I am going.  I will wait outside for Peter Robson and sort this out properly”.

Mr France warned Mr Robson of that threat.  Just before the Appellant left Mr Robson called him a “lazy bastard”.
9.	As a result of that incident Mr Robson was given a written warning.  In the warning letter dated 1 June the Respondent said:

“Your management style can be seen to be aggressive and it is this which led to a claim being made against us.  You have exposed the National Glass Centre to a claim through inappropriate behaviour, which cannot be tolerated by any member of staff, let alone a Senior Manager.”

The claim referred to was that by the Appellant, formally contained in an Originating Application to the Employment Tribunal presented on 17 May 2000.

10.	The question for the Employment Tribunal was whether the Respondent was in fundamental breach of the implied term of mutual trust and confidence to be found in this and/all other contracts of employment

11.	The majority answered that question in the negative.  Their reasons for doing so were that expressed in this way:

7.	“The majority took the view that what was said by Mr Robson may well have been said in the heat of the moment at a time when the Applicant should have been working in the kitchen.  The Applicant was used to working with Mr Robson and knew of his temperament.  Such language and behaviour was not unusual, as indicated by an earlier incident during Christmas 1999.  Mrs Milnes stated that the Applicant had used abusive language and threatened violence towards Peter Robson at that time.  This behaviour was similar to the behaviour which Mr France had witnessed in April.

8.	Bearing all this in mind the majority view was, given the evidence of Mr France (who had worked for many years in the catering industry) that the language used by Mr Robson was commonplace in commercial kitchens, and that there had been no breach of the implied term relating to trust and confidence or any other items in the Applicant’s contract of employment.  The Tribunal found the parties to be equally blameworthy for what had occurred.  The employers had not endorsed the behaviour of Mr Robson.”

12.	The minority member took a different view.  He said:

“…considering the conduct of Mr Robson at Easter (he) found it to be in breach of the implied term relating to trust and confidence, the reason being that the Applicant was out of the kitchen at the behest of Mrs Milnes.  Mr Robson’s language was not appropriate being directed at the Applicant, particularly as he was a senior employee who was in charge of the kitchen.  The Applicant had not responded in kind.  This conduct in the view of the (minority) member was a breach of the implied term relating to trust and confidence which had caused the Applicant to resign immediately following the incident and the Applicant had done so.  The Applicant’s resignation was therefore justified and he had been “constructively dismissed”.  No reason had been given by the Respondent for the dismissal.  The application therefore relating to unfair dismissal was well founded in his view.”

The majority view prevailed and the complaint of unfair dismissal was dismissed.

13.	In this appeal Mr Falkenstein submits that, although the Tribunal set out the proper test at paragraph 7 of their reasons, by reference to the Employment Appeal Tribunal decision in Cortaulds North Northern Textiles Limited v Andrew [1979] IRLR 84, a test we think substantially replicated in the House of Lords decision in Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606, the majority then failed to apply that test.  He submits that they should have focused on the Respondent’s conduct and not at the matter in a broad-brush way, concluding that it was ‘six of one and half a dozen of the other’.

14.	We reject that submission.  It seems to us that both conclusions, the majority and minority conclusions in this case, represented a permissible option open to the Tribunal.  We bear in mind that the question as to whether or not there was a breach of contract and if so whether that breach was fundamental, is essentially a question of fact for the Employment Tribunal, see Pederson v London Borough of Camden [1981] ICR 674.

15.	It seems to us that in answering the objective question, as to whether or not the Respondent’s conduct was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties, the majority were entitled to take into account the overall context of the employment relationship.  That included the way in which the Applicant behaved, as well as the way in which Mr Robson behaved.

16.	In these circumstances we have concluded that there is no arguable point of law in this appeal, consequently it must be dismissed at this preliminary hearing stage.