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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hussain v. Pakistan International Airlines [2002] UKEAT 879_01_2002 (20 February 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/879_01_2002.html Cite as: [2002] UKEAT 879_1_2002, [2002] UKEAT 879_01_2002

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APPEARANCES

 

For the Appellant	MR TATTON-BROWN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER BURKE QC

1. This is the preliminary hearing of an appeal by Mr Hussain against the Decision of the Employment Tribunal sitting at London South, chaired by Mrs May, and promulgated with Extended Reasons on 5 June of last year.
2. By a majority, the Tribunal rejected Mr Hussain's claim against his employers, Pakistan International Airlines, that he had been constructively dismissed. The Tribunal directed itself, at the outset of its Decision, that the issue which it had to determine was whether Mr Hussain had shown that he was constructively dismissed, i.e. that the employer's conduct was repudiatory, viewed objectively. That was a correct and unchallengeable self-direction. The majority concluded that the actions of the employers, upon which Mr Hussain based his claim, did not amount to such a breach.
3. The actions complained of were, in summary, that the employers had imposed unreasonable work demands on Mr Hussain, had harassed him and had failed to afford him a proper opportunity of redressing his grievance arising out of that behaviour on the employee's part. The majority concluded in paragraph 39 of the Decision, that viewed objectively the work demands imposed upon Mr Hussain were not so unreasonable that they went to the root of the contract, so as to entitle him to resign without notice. They gave a number of reasons for that conclusion. The members of the Tribunal unanimously reached the same conclusion in respect of the grievance procedure at paragraph 38.
4. Mr Hussain's Notice of Appeal, which is set out in a letter to this Tribunal dated 14 July, contains seventeen bullet points which, if professionally drafted, would be set out as grounds of appeal. We do not in any sense criticise the way in which he has set them out. Of those grounds, six of those on the first page have been struck out as a result of the failure of Mr Hussain to provide an affidavit supporting them, pursuant to paragraph 9 of the 1996 Practice Direction. Of the rest, we will say something at the end of this judgment.
5. Today, Mr Hussain has been represented by Mr Tatton-Brown, under the ELAAS scheme. We are extremely grateful to Mr Tatton-Brown for the helpful and succinct way in which he has put before us submissions on behalf of Mr Hussain that in its Decision the Tribunal erred in law. Mr Tatton-Brown firstly submits that while, in the beginning of their Decision, the Tribunal identified that it was necessary for Mr Hussain to establish repudiatory conduct, they did not in fact identify the obligations of the employer until they came to a paragraph headed "The Law", at paragraph 36 of their Decision. In that paragraph, they refer to Mr Hussain's reliance upon a breach of "the implied term of trust and confidence". Mr Tatton-Brown submits that that is not a sufficiently full statement of the implied obligation which arose in this and arises in every contract of employment. Authority tells us that a full statement of the implied obligation would read that the employers were obliged not without reasonable and proper cause to conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence; we need not go into the authorities; the proposition is familiar. Sensibly, Mr Tatton-Brown does not submit that the shorthand way in which the Tribunal has put it in this case is, in itself, a fatal mistake or even arguably a fatal mistake. He puts his case this way: that there are specific other indications in this Decision which demonstrate that the Tribunal had failed properly to appreciate what the implied obligation actually was.
6. We regret to say that we do not think that there is an arguable point of law in this case which would justify us in allowing this appeal through to a full hearing. We do not see any indication in this Decision that the abbreviated or summary version of the implied term which the Tribunal used was either wrong, as opposed to being convenient shorthand, or indicates that the Tribunal failed properly to approach or understand the issues which it had to determine.
7. Mr Tatton-Brown submits that the Tribunal focused, as is indicated by the use of the words "not so unreasonable" in paragraph 39, on whether the Respondents' actions were unreasonable and that, in doing so, the Tribunal looked at matters in what is arguably a subtly but significantly different way from that which they should have adopted. We do not agree, nor do we think that is properly arguable. The Tribunal plainly was looking to see, throughout this Decision, whether the implied term of trust and confidence had been broken in such as way as to amount to a repudiatory breach of contract on the employers' part. If they had thought that the test was one of reasonableness, then they would, in fact, have been erring in favour of the employee, and not in favour of the employer.
8. The second point which Mr Tatton-Brown makes is that, in paragraph 24 of the Tribunal's Decision, where the Tribunal is addressing what happened between Mr Hussain and Mr Shahid of the employers on 15 February, after Mr Hussain had returned to work after a two week absence, the Tribunal failed to make a factual determination as to whether or not, in the course of that meeting, Mr Hussain was bullied or was being evasive, the former being Mr Hussain's case and the latter the employer's case.
9. The Tribunal plainly did not think that it was necessary to make such a decision, and we can understand why. What was important, as the Tribunal saw it, and it was for them to decide the importance of factual material, was what emerged from the meeting. The Tribunal, by a majority, held that what emerged from that meeting of which Mr Hussain complained, namely, Mr Shahid's introduction of a time management policy which required Mr Hussain to produce daily status reports, was not an unreasonable request and was not a disciplinary measure and therefore did not constitute any breach of the implied term to which we have referred. The weight of the findings of the majority, throughout, indicates that they preferred the evidence of the employers to that of Mr Hussain; and we do not regard it as arguable that this Decision could be impeached by reason of the Tribunal's decision not to make a finding on that one issue of fact, looking at the whole history of this matter and the Decision as a whole.
10. Thirdly, Mr Tatton-Brown draws our attention to paragraphs 28 and 29 of the Decision. On 9 March, the Tribunal found, Mr Hussain in a letter asked for a response to his request for grievance procedure documents by 14 March. On 15 March, having not received any such documentation, he tendered his resignation in writing. The Tribunal say, in paragraph 29, that the date on which he wrote that letter of resignation, 15 March, was the date which he had set as the deadline to receive the grievance procedure documentation. In fact, it appears from paragraph 28 that that deadline which he had set was the 14^th not the 15^th; and thus the Tribunal appear to have made an error in relation to that date by twenty four hours.
11. However, we see no basis on which it could be said that that error could have made any difference to the outcome of this case or the Tribunal's Decision. Quite apart from the fact that the deadline was not an agreed deadline, but a deadline unilaterally set by Mr Hussain, which it was not contractually or otherwise necessary for the employers to respond to (and since the Tribunal did not make that point, we do not count it in any way against Mr Hussain), the fact is that when Mr Hussain wrote his letter of resignation, he had not received the grievance procedure documentation which, we interpose, was actually sent out that same day, and the deadline had passed, whether the deadline was the 14^th or the 15^th. We do not see how it conceivably can be said that the fact that the deadline had been passed by a longer period made any real difference.
12. The real question was whether the failure to send out the grievance procedure documentation before Mr Hussain resigned was or was not, again to use shorthand, a substantial breach of contract. The Tribunal unanimously held that there was not a failure to respond to the grievance. Mr Siddiqi had offered an informal meeting and the Tribunal plainly did not regard the failure to provide a copy of the grievance procedure earlier as a substantial breach of contract. We do not think that it is arguable that the Tribunal erred in that respect.
13. Therefore despite the sensible and helpful way in which the points have been argued, we do not regard any of the points put forward by Mr Tatton-Brown as demonstrating an arguable ground of appeal.
14. Mr Tatton-Brown tells us, having consulted Mr Hussain, that all the other points in the Notice of Appeal are not pursued, save for one, namely that the Tribunal has failed the Meek test, in other words, has failed to give sufficient reasons in its Decision to show to the parties why they have lost or why they have won.
15. We have no doubt at all that this is a Decision in which the Tribunal have gone carefully through the facts, have made a series of findings of fact as to the whole of the history, and have, at each relevant point, identified their view as to whether there was or was not a repudiatory breach of contract, and have set out their reasons why. We do not see that there is any defect in this Decision in terms of the requirements set out in the case of Meek.
16. For those reasons, not without some tinge of sadness, because Mr Hussain had been employed by his employers for a long time and it is unfortunate that his employment should have come to the end in the way in which it did, this appeal must be dismissed.