Why the Claimant Has Unfairly Dismissed - Case Study Example

IN THE EMPLOYMENT TRIBUNALS Case no: 625625 of 2008 (BRIGHTON) BETWEEN: MR. CHRIS WHINER Claimant -and- ALL HIRE SERVICES LTD Respondent CLAIMANT’S SUBMISSIONS ON UNFAIR DISMISSAL 1. The claimant, Chris Whiner alleges that his resignation which was submitted to All Hire Service Ltd was involuntary and therefore amounts to constructive dismissal. The claimant therefore seeks compensatory damages for unfair dismissal. 2. The claimant and the respondent do not agree on the facts and circumstances preceding the claimant’s resignation. The parties ultimately disagree as to the tone and manner of the meeting between the respondent’s manager Chris Perkins and the claimant and whose idea it was for the claimant to resign. The respondent via Perkins alleges that the meeting was entirely civil and he was merely attempting to address comments made by the claimant so as to avoid misinterpretation in the future and to ensure that his vision for team work was followed. The claimant maintains that Perkins was aggressive and coerced his resignation. 3. Perkins neither denies, nor admits approaching the claimant as he disembarked from his van following a delivery. Nor does Perkins deny shouting at the claimant and ordering the claimant upstairs immediately. In the absence of a challenge to these allegations it can be accepted that the claimant’s version of this part of the encounter is true. At the very least it can be accepted that the meeting was preceded by a confrontational tone which would have had some bearing on how the claimant perceived and interpreted what was to follow upstairs. In any event, the indisputable fact that the claimant lodged a complaint denying that his resignation was voluntary, is evidence capable of corroborating his claim that his resignation was involuntary and coerced. 4. The question for the tribunal is therefore whether or not, the exchange of dialogue between the claimant and Perkins is such that it amounted to a coerced or involuntary resignation therefore amounting to constructive and unfair dismissal. In this regard the actual resignation corroborates the claimant’s assertion that he had been accused of “slagging off the manager” and “telling new girl to make tea”. Perkins denies having done so. It can therefore be accepted that Perkins’ version of the disputed facts is therefore unreliable. Any doubt should be resolved in the claimant’s favor. 5. Accepting that the claimant’s version of the confrontation is at the very least supported by the contents of the resignation and his subsequent denial that it was voluntary, it is submitted that the tribunal treat the claimant’s statement as the best evidence of what transpired between the claimant and Perkins. 6. Accepting that Perkins was angry going into the meeting and unfairly accused the claimant of calling him names and ordering the new employee to make tea, the resulting resignation was involuntary. The Court of Appeal offers some guidance on how to treat exchanges of this kind. The case Sovereign House Security Services Ltd. v Savage1 case held that an objective test is the correct approach. The correct question is therefore whether or not an objective bystander would have interpreted the words used in such a way as to give the impression that a resignation or dismissal was sought. 7. Assuming, as the tribunal should, that Perkins demanded that the claimant resign, there is no doubt that Perkins intended to solicit the claimant’s resignation. This is corroborated by the undisputed fact that Perkins handed the claimant paper and a pen. Looked at objectively, even if Perkins had not demanded the claimant’s resignation, the mere handing over of paper and pen in a meeting where Perkins was confronting the claimant on his conduct at the company, clearly indicates that Perkins intended that the claimant resign. As stated by the Court of Appeal in Sovereign House Security Services Ltd: …in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.2 8. It was also held in Kwik-Fit (GB) Ltd v Lineham that regardless of the fact that a resignation is unambiguous, a prudent employer in certain circumstances might not automatically take the resignation “at face value”.3 The employer might wait a few days to determine whether or not the resignation was genuine. Failure to do so, would likely lead the Tribunal to conclude that there was a dismissal rather than a resignation.4 Drawing on this ruling, there are extentuating circumstances that would suggest that Perkins ought not to have taken the claimant’s resignation at face value. Perkins admits that the claimant had previously threatened to resign but failed to follow through. Moreover, as the court ruled in Kwit-Fit an extenuating circumstance could be the temperament and mood surrounding the resignation which is such that it was tendered in the heat of the moment.5 The mood was set from the manner in which the claimant was approached and the allegations that were made against the claimant. 9. The fact that the claimant denied the authenticity of his resignation and filed a complaint shortly after tendering his resignation is an important factor for the Tribunal to take into account. It was held in Martn v Yeomen Aggregates ltd that when words are exchanged in an emotionally charged atmosphere, they will not amount to either a resignation or termination if those words are retracted very soon after they have been exchanged.6 In this regard, the claimant’s complaint to the grievance committee a few days after tendering his resignation is certainly evidence of a retraction. Moreover, it was held in Barclay v City of Glasgow District Council that events and circumstances following the resignation are relevant for determining whether or not the resignation was authentic.7 Therefore the fact that Perkins accepted the resignation without question, having provided the claimant with the pen and paper, is certainly persuasive evidence that he intended to solicit the claimant’s resignation. 10. Tanner v D.T. Kean Ltd could arguably support the respondent’s argument that the purpose of the meeting was merely to reprimand or set the claimant straight on the proper conduct expected on employees.8 In this case it was held that the employer’s angry outburst in which he stated that the employee was “finished” was a reprimand rather than a dismissal.9 However, this case can be distinguished from the claimant’s case in that Perkins actually handed the claimant a sheet of paper and a pen to write out his resignation. This fact alone substantiates the claimant’s allegation that he was given no alternative but to resign. 11. The case of Futty v D and D Brekkes Ltd might also lend some support to the contention that an emotionally charged exchange in which the employer’s words are capable of being construed as a dismissal will not automatically be taken at face value.10 In Futty an employee’s outburst telling an employee in abusive terms to leave if he did not like his job was held to be no more than a command to continue working. The outburst came after over-hearing an employee complain about employment issues. Again this case is distinguished from the claimant’s case on factual grounds. Perkins’ outburst and/or the request for a resignation were matters of formality which specifically addressed the claimant’s conduct at work. Moreover, unlike the Futty case, Perkins left no doubt that he intended that the claimant resign by handing him the paper and the pen and then accepting the resignation without question. 12. The voluntariness of the tendered and accepted resignation in this case is the primary issue for the Tribunal to determine. The voluntariness depends on a construction of the conduct of both the claimant and Perkins. In other words, if the Tribunal finds that Perkins intended to illicit a resignation and that the claimant felt he had no other alternative but to tender his resignation, then the Tribunal must find that the resignation was involuntary and therefore amounts to constructive dismissal. 13. According to the ruling in Jones v Mid-Glamorgan County Council, the Tribunal is required to look at the actual termination to determine whether or not there was sufficient pressure on the employee to retire so that it constituted a dismissal.11 As previously stated, the nature of Perkins angry approach to the claimant in ordering him upstairs and the fact that he handed him a pen and a piece of paper certainly amounts to sufficient pressure that would lead the claimant to conclude that he had no other alternative but to retire. If the Tribunal believes the claimant’s evidence that Perkins insisted that the claimant retire or face dismissal in one week, the Tribunal is duty bound to find that the employer used a sufficient degree of pressure to constitute dismissal. 14. Ultimately, in order to determine whether there was constructive dismissal the Tribunal is obliged to determine whether or not there was a breach of the employment contract and whether or not that breach was a fundamental term of the contract.12 In this regard, the claimant submits that the respondent breached an implied term of the contract which amounts to a fundamental breach and therefore constructively dismissed the claimant. 15. The implied term breached by the respondent is the duty of trust and confidence. The duty has been expressed and confirmed by the House of Lords in Mahmud v Bank of Credit and Commerce International SA in which the court ruled that: The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee.13 16. It was further held in Baldwin v Brighton and Hove City Council that the conduct is sufficient to amount to a breach of the duty to act reasonably if either a breach of trust or confidence is likely to occur.14 It is therefore not necessary that there is a breach of both trust and confidence. 17. It can be argued that Perkins’ reputation as a forceful manager functioned to destroy the claimant’s trust and confidence in Perkins as a legitimate agent of the respondent. The case law has extended the reach of the duty of trust and confidence to such an extent that it is very broad and reaches into virtually all aspects of the employer’s conduct and it does not have to be reputiatory in nature.15As held in Mahmud v Bank of Credit and Commerce International SA, the conduct only need be such that it has the potential to seriously damage or destroy the employment relationship. 18. FC Gardner Ltd. v Beresford held that treating an employee in a way that differs from the treatment of other employees in like circumstances is a breach of the duty of trust and confidence, provided the different treatment was inferior and conducted “arbitrarily, capriciously and inequitably”.16 Perkins treatment of Pat Miles for the same incidents was handled in a different way. It is therefore reasonable to conclude that the claimant was treated “arbitrarily, capriciously and inequitably”. 19. It has also been held that admonishing an employee in a manner that is humiliating, degrading or intimidating is capable of breaching the implied duty of trust and confidence.17 If the Tribunal accepts the claimant’s evidence that Perkins used abusive language and was angry during the confrontation, then the Tribunal should find that there was a breach of trust and confidence on the part of the respondent to such an extent that the conduct amounted to constructive dismissal. 20. The Tribunal will likely be asked by the respondent to take account of the incidents that Perkins was responding to and to consider whether or not that response was unreasonable. Certainly this was the ruling in Abbey National plc v Fairbrother particularly since this is the approach taken to claims in unfair dismissal.18 However, the reasonableness of Perkins’ conduct is provided for in the evidence. His conduct with Pat Miles clearly demonstrates that Perkins could have dealt with the claimant in as reasonable a manner as he did with Miles, considering it was Miles who had actually called Perkins “five bellies” and not the claimant. 21. In light of the authorities cited and the facts of the case as supported by the evidence, the respondent is guilty of constructive dismissal in that Perkins conduct was such that it was a fundamental breach of the duty of trust and confidence. Moreover, Perkins’ conduct was such that the claimant reasonably felt that he had no alternative but to tender his resignation and therefore the resignation is not voluntary and is therefore constructive dismissal. The respondent asked the Tribunal to make an order accordingly. The success of this case depends on which version of the facts are accepted by the tribunal. The standard of proof is assessed on the balance of probabilities. The tribunal will decided, based on the facts whether it is more probable that the claimant was forced to resign or voluntarily resigned. If the claimant’s version of the facts is accepted his claim will succeed. However, if Perkins’ version of the facts are accepted, the claim will fail. In this regard, the claimant has a 50 percent chance of succeeding. At worse, if his evidence is not accepted the tribunal will rule that his resignation was voluntary. 2,376 words. Bibliography Abbey National plc v Fairbrother [2007] IRLR 320. Baldwin v Brighton and Hove City Council [2007] IRLR 232. Barclay v City of Glasgow District Council [1983] IRLR 313. FC Gardner Ltd. v Beresford [1978] IRLR 63. Futty v D and D Brekkes Ltd [1974] IRLR 130. Hilton International Hotels (UK) Ltd. v Protopapa [1990] IRLR 316. Jones v Mid-Glamorgan County Council [1997] IRLR 685. Kwik-Fit (GB) Ltd v Lineham [1992] 183 IRLR 156. Mahmud v Bank of Credit and Commerce International SA [1997] IRLR 462. Martn v Yeomen Aggregates ltd [1983] IRLR 49. Morrow v Safeway Stores Ltd. [2002] IRLR 9. Pedersen v Camden London Borough Council [1981] IRLR 173. Sovereign House Security Services Ltd. v Savage [1989] IRLR 115. Tanner v D.T. Kean Ltd [1978] IRLR 110. Wetherall (Bond St W1) Ltd v Lynn [1978] 1 WLR 200. Read More