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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hollingworth v. Pendragon Plc (t/a Car Fleet Control) [2003] UKEAT 0466_03_1609 (16 September 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0466_03_1609.html Cite as: [2003] UKEAT 466_3_1609, [2003] UKEAT 0466_03_1609

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APPEARANCES

 

For the Appellant	MR SIMON PINE (Representative)
For the Respondent	MR CYRIL ADJEI (of Counsel) Instructed By: Retail Motor Industry Federation Legal Services 3rd Floor 9 North Street Rugby Warwickshire CV21 2AB


 


JUDGE PROPHET:

1. Mr Hollingworth submitted a complaint of an unfair dismissal to the Employment Tribunal at Birmingham on 13 November 2002 against his former employers, Pendragon Plc. Mr Hollingworth indicated in his complaint that he had resigned from his employment.
2. Consequently, when his case came to be considered by an Employment Tribunal sitting at Birmingham on 7 April 2003 with Mr Goodier as the Chairman and Mr Trigg and Mrs Vernon as the lay members, their first duty was to decide if they were satisfied that Mr Hollingworth had been constructively dismissed. They found unanimously that they were not so satisfied and consequently that his complaint of an unfair dismissal failed and was dismissed.
3. The written Decision to that effect with Extended Reasons was promulgated on 6 May 2003. Although the names of the representatives were not mentioned at an early stage in the Extended Reasons, reference is made to both sides being represented by advocates of legal experience. Those were Mr Pine on behalf of Mr Hollingworth and Mr Adjei of Counsel on behalf of the employers.
4. The Notice of Appeal by Mr Hollingworth in respect of that decision was submitted to this Employment Appeal Tribunal on 11 June 2003 accompanied by grounds of appeal drafted by Mr Pine.
5. On consideration of the papers Mrs Justice Cox made an order on 20 June 2003 that the appeal be set down for a full hearing at the Employment Appeal Tribunal and we are constituted today to hear that appeal. The Appellant, Mr Hollingworth, is again represented by Mr Pine and the employer by Mr Adjei.
6. A reading of the Employment Tribunal's Extended Reasons indicates that prior to his resignation Mr Hollingworth's working relationship with his immediate boss, Mr Harman-Wilson was not a harmonious one and in reaching their findings of fact the Tribunal was faced with conflicting evidence about this from each side. As the Employment Tribunal say in paragraph 4 of the Extended Reasons, "These exchanges took place against the background of a car dealership", where the Employment Tribunal found that people are in the habit of expressing themselves with vigour and in colourful language.
7. One important finding of fact related to a management meeting on 24 June 2002 attended by, amongst others, Mr Harman-Wilson and Mr Palmer, then the Service Manager. Mr Hollingworth, not being a member of management was not present. The Employment Tribunal found, although denied in evidence by Mr Harman-Wilson, that Mr Harman-Wilson (whilst irritated with Mr Hollingworth following a disciplinary meeting with him earlier that day which had resulted in Mr Hollingworth receiving a warning) had said at that meeting words to the effect, "I'm going to fire Mr Hollingworth, a leopard won't change his spots". Mr Harman-Wilson did not communicate that to Mr Hollingworth at the time.
8. There is no evidence of any particular matters arising which are helpful in this case between June and September, but in September 2002 an incident occurred which revealed against Mr Hollingworth, as the Employment Tribunal put it, "a prima facie allegation of serious misconduct". That led to Mr Hollingworth being suspended and an investigation was conducted by Mr Harman-Wilson's senior colleague Mr McCredie. Mr McCredie decided that there was insufficient evidence to pursue that matter further. Mr Hollingworth was then advised that his suspension was at an end and that he could return to work, which he duly did on 30 September 2002.
9. The Employment Tribunal found that there was communication between Mr Palmer and Mr Hollingworth some time in September 2002. However, both representatives today have indicated to us that that was an error on the part of the Tribunal and that that communication actually took place early in October 2002.
10. The point is however, that in that discussion Mr Palmer, who by then had left the employer's employment in July 2002, told Mr Hollingworth of the remark made by Mr Harman-Wilson at the June meeting. That, as the Employment Tribunal found, was the trigger to Mr Hollingworth's decision to resign by letter on 8 October 2002.
11. The Employment Tribunal does not in its Reasons set out the contents of that letter, but a copy has been included in the papers prepared for this hearing and we see that its contents are in effect similar to what Mr Hollingworth set out in the details of his complaint in his Originating Application.
12. Mr Pine conceded before the Employment Tribunal that there could be no anticipatory breach of contract arising directly from what was said at the June meeting and he acknowledges today that he cannot resile from that concession. Nevertheless, he relies on the revelation to Mr Hollingworth in October by Mr Palmer of what had been said at that June meeting by Mr Harman-Wilson.
13. The essential thrust of Mr Pine's submission is that the Employment Tribunal's finding of fact as to what was said by Mr Harman-Wilson at that management meeting in June 2002, when communicated by Mr Palmer to Mr Hollingworth in October 2002, constituted an anticipatory breach of contract which entitled Mr Hollingworth to leave his employment in October 2002. Consequently, he says that the Employment Tribunal should have concluded that there was a constructive dismissal in this case.
14. We accept Mr Pine's submission that if the Employment Tribunal were saying at paragraph 19 of their Reasons that a ground for constructive dismissal could not arise if it came to light through a former employer, that cannot be correct. However, that still leaves the issue of whether there was an anticipatory breach of contract on the facts of this case. Mr Adjei's submission to us is that there was not, as the Employment Tribunal found.
15. It is apparent from the way Mr Hollingworth presented his case to the Employment Tribunal that his belief was that the employers were trying to force him out of his employment by unfounded disciplinary action and that the remarks by Mr Harman-Wilson at the June meeting, as reported to him by Mr Palmer, supported that.
16. The Employment Tribunal looked into the whole of that alleged situation. They found that the earlier warning given to Mr Hollingworth was entirely appropriate and so too was his suspension in September 2002. It follows that they rejected any suggestion that disciplinary action was being falsely motivated by the employer. Although the remarks made by Mr Harman-Wilson at the June meeting, as communicated to Mr Hollingworth by Mr Palmer would suggest that there was at that time a lack of confidence by Mr Harman-Wilson in Mr Hollingworth, it has to be remembered that that matter came to Mr Hollingworth's notice some three months later and then only indirectly. Thus, Mr Harman-Wilson had no opportunity of either denying the remarks or putting them in context through, perhaps, a submission by Mr Hollingworth of a grievance before he took his decision to resign.
17. So far as there being any possibility that the revelation indicated that the employer was intending to get rid of Mr Hollingworth at some time in the future, and that that could amount to an anticipatory breach, the Employment Tribunal dealt specifically with that in paragraph 20 of their Reasons, where they say:

"We cannot say on the basis of the facts as we have found them that there was any basis for a suspicion on behalf of the applicant that if he had remained in employment he would have been dismissed."

18. All cases of alleged constructive dismissal have to be determined on the particular facts of each case. The Employment Tribunal in this case was entitled to weigh up all the relevant matters, as found by them from the evidence presented to them in the context of having carefully set the legal requirements for constructive dismissal as contained in the leading case of Western Excavating (EEC) Ltd v Sharp [1978] IRLR 27, and other cases in paragraphs 13 to 15 of their Reasons. They reached a conclusion that this was not a case which satisfied the test for a constructive dismissal. In our view that was a conclusion which they were entitled to reach and that that conclusion cannot be characterised as perverse.
19. Accordingly, unanimously we find that this appeal fails and is dismissed.