The claimant was first dismissed and then, on appeal, was demoted. He resigned in response to the demotion. He won his claim of constructive unfair dismissal at the ET and the respondent appealed.

The EAT dismissed the appeal. The ET did not make any error of law. The respondent sought to raise points not raised before the ET, giving no good reason why that should be allowed. In any event, the respondent's grounds of appeal did not disclose any errors of law.

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Appeal No. UKEATS/0016/15/SM

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 11th December 2015

Before

THE HONOURABLE LADY STACEY

(SITTING ALONE)

BRITISH AIRWAYS PLC (APPELLANT AND RESPONDENT)

HIGGINS (RESPONDENT AND CLAIMANT)

Transcript of Proceedings

JUDGMENT

For the Appellant and Respondent
Mr Benjimin Burgher, counsel, Addleshaw Goddard LLP Solicitors
Sovereign House
Sovereign Street
Leeds LS1 1HQ

For the Respondent and Claimant
Mr Lance Harris, counsel
Prospect
New Prospect House
8 Leake Street
London SE1 7NN

Constructive Dismissal. The claimant was employed as an engineer by the respondent. Following disciplinary proceedings in respect of failure to follow engineering procedures he was dismissed. He appealed. The appeal was successful to the extent that he was demoted instead of dismissed. He appealed unsuccessfully to the next level of appeal. He resigned in response to the demotion. At the ET it was agreed by counsel for each party that if there was a dismissal, it was unfair. The ET found that there had been a constructive dismissal, which was unfair. It found that the claimant had contributed to the extent of 50% by his behaviour. The respondent sought to argue that the ET erred by finding that the term of trust and confidence in the contract of employment had been breached by demotion, when the claimant had at first been dismissed. It argued that the finding of breach in respect of the demotion was perverse. The respondent argued that the ET had erred in failing to ask itself if the demotion was within the range of reasonable responses that an employer might make, and that it should have distinguished the case of [Bournemouth University v Buckland]() [2010] EWCA Civ 121. It argued that the case of Hogg v Dover College [1990] ICR 39 was authority for the proposition that the respondent could rely on the dismissal of the claimant, and that dismissal should be tested by the range of reasonable responses test.

Held: the ET did not make any error of law. The respondent sought to raise points not raised before the ET, giving no good reason why that should be allowed. In any event, the respondent's grounds of appeal did not disclose any errors of law.

1. This is a full hearing in which British Airways Plc appeal against a decision of an employment tribunal sitting in Glasgow in March 2015 in which the written reasons were sent to parties on 13 April 2015. The Employment Tribunal (ET) comprised Employment Judge Susan Walker, Ms Paula McColl and Mr Peter Ritchie. Mr Harris, counsel, appeared on behalf of Mr Higgins at the Employment Tribunal as well as before the Employment Appeal Tribunal. Ms Cooper, counsel, appeared for British Airways at the ET and Mr Burgher appeared before the Employment Appeal Tribunal.

1. I shall refer to the parties as claimants and respondents as they were in the tribunal below. The decision of the ET was that the claimant was constructively dismissed in terms of section 95(1) (c) of the Employment Rights Act 1996 ("ERA"), and that the dismissal was unfair under section 98(4) of ERA. The respondent was ordered to pay to the claimant the sum of £24,654 by way of compensation. The claim under section 103A of ERA was dismissed, and the application for an order under Rule 7(1) (d) was refused.

1. The ET heard evidence from the claimant and two trade union representatives who accompanied him at disciplinary hearings. For the respondent they heard from Stuart McMahon, production manager, Brian Queally, Mike Roberts and Martin Buzzard. The underlying facts were found by the ET and set out carefully in detail. For the purposes of this appeal it is sufficient to summarise the facts. The claimant is an engineer. He was employed by the respondent from 1987. At the end of his employment he was an Aircraft Maintenance Supervisor (AMS), working directly on aircraft maintenance, and overseeing the work of others at British Airways Maintenance Glasgow (BAMG). On the weekend of 1 March 2014 the claimant was on duty. When the claimant came on shift the work scheduled for the weekend was already significantly behind schedule. The workers expected for the weekend were not all present; instead of there being two B grades, one of whom was the claimant, and four technicians or mechanics, there was only the claimant and one technician. The claimant raised concerns about completing the work with insufficient staff with his managers and was told to do the best he could. Two mechanic grade contractors were brought in to work. The claimant did not know them. He ascertained that they were RAF trained. He observed their work at the start of the shift finding it to be of high quality. He sample checked the work they carried out but did not check every aspect of it. The claimant had a letter written to him in 2008 from the person then Quality and Training Manager at BAMG, which stated:

"Supervision does not necessarily require any physical check of a person's work. It is dependent on the supervisor's confidence in that person's competence and capability".

1. During the Saturday shift, the claimant was approached by one of the contractors who told the claimant that he had damaged a wire in the course of work he was carrying out. The claimant consulted the Electrical Standards Practice Manual (ESPM) which is a manual provided to him and which he is expected to follow to the letter. He found from it that he could use a splice to fix the problem. He did not check from the manual which splice he should use, because he thought that one he already had in his tool box was the correct one. He used it. Had he checked the manual he would have found it was not the correct splice. The claimant asked the contractor to complete a defect card, known as a GOR. The contractor said he did not know how to do so, and so the claimant intended to do it himself but he forgot to do so.

1. The claimant signed off wiring installed by the contractors. It was later found faulty. Further investigation found that the wrong splice had been used, and found the lack of a GOR. The claimant was suspended. A disciplinary hearing ensued, as a result of which the claimant was dismissed for gross misconduct. He appealed against that decision. The appeal succeeded to the extent that claimant was given a final warning to last for two years, and was demoted to mechanic, which was three grades below his grade, with a substantial loss of salary and benefits, and responsibility. The claimant made a further appeal which did not succeed. He then resigned in response to being demoted.

1. The ET set out the issues before the tribunal as follows:-

1. Was there a breach of the implied term of trust and confidence?

1. Did the claimant have a reasonable belief that the respondent was failing to comply with a legal obligation as set out in the identified disclosures?

1. If the claimant had made protected disclosures and the tribunal found that there was a breach of the implied term, was the principal reason for the breach that the claimant made those protected disclosures?

1. If the claimant was unfairly dismissed, should a withdrawal factor be applied to the agreed figure for pension loss and should the agreed compensation figure be reduced because of the claimant's conduct?

1. It is noticeable in that list of issues that there is no question as to whether, if the tribunal found that the claimant had been constructively dismissed, that dismissal was unfair. My attention was drawn to page 123 of the bundle in which a draft list of issues was set out. I was told that this had been exchanged between counsel shortly before the hearing. While it is different from the list quoted above, neither does it include anything to do with the question of whether, constructive dismissal being proved, the dismissal was unfair. The ET noted at page 10 of its reasons that

"The respondent offered no potentially fair reason, conceding that if the tribunal considered that the claimant had been constructively dismissed, then it was unfair."

It also noted at page 22, line 25 the following:-

"Further, the respondent has accepted that if the claimant was constructively dismissed it was unfair in terms of section 98(4) of ERA and we therefore find that the claimant was unfairly dismissed."

1. The ET did not uphold the claim of unfair dismissal under section 103A. No cross appeal has been marked by the claimant and therefore there is no need to say anything further about that claim.

1. The first ground of appeal for the employer is headed "No breach of the implied term of trust and confidence." Mr Burgher argued that the Employment Tribunal had erred in concluding that a lesser sanction of demotion imposed on the employee when he appealed against a dismissal is capable of amounting to conduct calculated to or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. He argued that the ET had erred in its analysis where it said that the sanction against the employee was reduced from dismissal to demotion. He said that it was clear that the appeal had not been upheld and that the previous grade which the employee had enjoyed prior to dismissal had ended and there was therefore no continuing grade to which the breach could apply. He sought to make a distinction between an employment relationship which he seemed to accept continued between the decision to dismiss and the appeal at which that decision was rescinded and the employment contract. In support of his argument he referred to the case of [Salmon v Castlebeck Care (Teesdale) Limited (in administration)]() 2015 IR LR 189 where at paragraph 36 Langstaff P held that

"It must be implicit in any system of appeal, unless otherwise stated, that the appeal panel has the right to reverse or vary the decision made below. Where a decision is to dismiss, being the most draconian of sanctions, any success on appeal means that the decision is one in which dismissal does not take effect, although some lesser sanction might."

Counsel sought to argue that that decision was supportive of his position.

1. Counsel argued that the ET had erred by finding that the question of unfair dismissal was conceded by the respondent at the hearing. He argued that the submissions made by counsel at the hearing, which are produced in the bundle, showed that the matter of the fairness of the dismissal was very much before the tribunal. When pressed as to how that had come about, when the tribunal had not put it in the list of issues, and when it had said in the written reasons that the matter had been conceded, counsel said that the ET must have misunderstood the position. He said that no application for review by the ET had been made because there were other points and they required to go to appeal.

1. Counsel for the claimant, Mr Harris, argued that this point could not be heard by me as it was a new point which was not raised in the tribunal below. He argued that the idea of the tribunal having made a mistake about what had been conceded was raised for the first orally before me as it is not spelled out in the grounds of appeal. His submission was that it seemed that the point that Mr Burgher wanted to take was that because the appeal was not wholly successful the employee was back with the employer in some role but not in the same contract as before. He said that that was an entirely new point which had never been taken in the Employment Tribunal. It was directly contrary to what has been argued.

1. Mr Harris argued that a new point can be taken before the EAT only in exceptional circumstances. He made reference, as did Mr Burgher to the case of Secretary of State for Health v Rance and others EAT [2007] IR LR 665. He argued that no exceptional circumstances had been put in issue here. In any event he argued that the examples given in that case did not apply to the current case, as it would be necessary to have further argument.

1. I am not prepared to allow the new point to be taken. If it was correct that the matter had not been conceded before the ET then the respondent should have sought a review of the ET decision, pointing out that it had made a decision on an erroneous basis, or it should at least have in its grounds of appeal made plain that that was the position and should have produced an affidavit from the person representing the respondent at the hearing setting out her understanding of the position. It may be that the papers would then have been sent to the employment judge for comment. None of that has been done. I therefore do not allow this matter to be raised now. For completeness I should say that I think there is no merit in the point in any event.

1. The second ground of appeal is perversity. The Employment Tribunal found that the employee was not blameless and that he had significantly contributed to his dismissal by his own conduct. They made a deduction of 50% from the compensation payable to him. According to the ground of appeal, the ET having found that there was a 50% contribution, it was perverse of the ET to find that it was not reasonable and proper for the employer to impose a sanction of demotion. Mr Harris argued that the decision was not perverse. The ET were absolutely entitled to find that the demotion amounted to a breach of contract, while also finding that the claimant had contributed to the situation arising by his own actions. It could not be said that the ET had reached a decision which was plainly wrong.

1. In my opinion the argument does not satisfy the high test required for a perversity argument. I find the ET were entitled to reach this decision. I find no merit in this ground of appeal.

1. The third ground of appeal centred on the case of Bromley Hospitals NHS Trust v Mair UK EAT/41/95 in which it was found that a constructive dismissal may be a fair dismissal. Counsel sought to argue that that being so, it was incumbent upon the ET to consider whether the dismissal had been fair. In my opinion it is well established that a constructive dismissal may or may not be an unfair dismissal. The law is clearly set out in the case of Bournemouth University Higher Education Corporation v Buckland [2010] EWCA Civ 121, to which Mr Burgher also made reference, arguing that it should be distinguished. It is clear from paragraph 22 of that case that the question of constructive dismissal being fair or unfair is one at which the tribunal should look if it is raised before them. In the current case it was not raised before them as can be seen from the quotations above. There is no basis for reading the case of Buckland to suggest that it is necessary always for the tribunal to consider this matter when it has been agreed between the parties.

1. The next ground of appeal relates to the case of Hogg v Dover College 1990 ICR 39 in which Mr Burgher said he wished to make an argument he called "Reverse Hogg v Dover College". He sought to argue that the situation in that case was that the employee had had a fulltime job but had been off sick. His employer told him that he could no longer keep him as a fulltime worker, but that he could get a halftime job with halftime pay. The employee agreed to do that, while making a claim of constructive dismissal from his original contract. The tribunal upheld his claim and that was upheld in the Court of Appeal. Mr Burgher argued that the first contract, for full time work, was found to have ended, and the claimant was working on a new contract for fewer hours and less pay. If I understood him correctly what was exercising Mr Burgher in relation to this ground of appeal and to the case of Buckland, was that in a straightforward unfair dismissal case, it is for the employer to show the reason for dismissal and if it is a potentially fair reason then the Employment Tribunal has to ask itself whether dismissal lies within the range of reasonable responses that an employer might make. The Employment Tribunal has to be careful not to substitute its own view for that of the respondent. In the case of constructive dismissal, in contrast, the question of whether the actings of the parties amount to constructive dismissal is one for the tribunal to decide. The tribunal has to decide whether the employer's actings were such as to breach the contract between the parties and if the employee accepted that breach by resigning. There is no question of considering the range of reasonable responses. Mr Burgher suggested that his clients were in some way disadvantaged by this. Mr Harris argued the law is clear and settled in the case of Buckland. He invited me to follow it.

1. I do not accept that any such doctrine as "reverse Hogg v Dover exists". It is a new point, and as with the first ground of appeal no reason was given why a new point should be allowed at this stage. In any event there is no merit in the point.

1. The claimant has not shown that any error of law was made by the ET in this case. It was entitled to proceed on the basis that the issue before it was whether there was a constructive dismissal, it being agreed by parties that if there was a constructive dismissal, then that dismissal was unfair. The ET's written reasons are a careful record of the evidence given, together with a note of what they found proved, and their reasons for doing so. The law is fully and accurately addressed and there are no misdirections. The appeal is dismissed.