Vairea v Reed Business Information Ltd (Practice and Procedure: Appellate jurisdiction/Reasons/Burns-Barke), Court of Appeal - United Kingdom Employment Appeal Tribunal, June 03, 2016,  UKEAT 0177_15_0306
|Resolution Date:||June 03, 2016|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Vairea v Reed Business Information Ltd (Practice and Procedure: Appellate jurisdiction/Reasons/Burns-Barke)|
Appeal No. UKEAT/0177/15/BA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 15 January 2016
Judgment handed down on 3 June 2016
HIS HONOUR JUDGE HAND QC
MR S VAIREA APPELLANT
REED BUSINESS INFORMATION LIMITED RESPONDENT
Transcript of Proceedings
PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke
UNFAIR DISMISSAL - Constructive dismissal
The simplification of the wording of the Rule relating to the content of the Reasons (i.e. the change from Rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to Rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013) had not changed the requirement for Reasons to conform to the Rule. Greenwood v NWF Retail Ltd  UKEAT/0409/09/JOJ,  ICR 896 still applied and a failure to comply with the requirements of the Rule would amount to an error of law (see paragraphs 51 to 58 of that judgment). In order to comply with the Rule it was necessary for the requirements of the component parts of the Rule to be discoverable in the Reasons. The approach of the Court of Appeal in Meek v City of Birmingham District Council  IRLR 250 should continue to be the prism through which compliance with the Rule was to be viewed (see paragraphs 59 to 63 of the judgment in Greenwood). In the instant case the Reasons took a largely narrative form and ``bare'' conclusions had to be connected to findings elsewhere in the Reasons but when that exercise was undertaken it could be seen that the Reasons were adequate.
There is no difference in principle between a unitary repudiatory breach of contract and a repudiatory breach of contract comprising a series of acts, which taken together, amount to a breach of the implied term as to mutual trust and confidence and the last of which amounts to a ``last straw''. This is made clear by paragraphs 20 and 21 of the judgment of Dyson LJ in London Borough of Waltham Forest v Omilaju  IRLR 35 and nothing said in Addenbrooke v The Princess Alexandra Hospital NHS Trust UKEAT/0265/14/DM should be understood as contradicting that. Affirmation by the employee after a repudiatory breach cannot be ``revived'' except by a further repudiatory breach and there cannot be a series of ``last straws''; Safehaven Investments Inc v Springbok Ltd  71 P & CR 59, White Rosebay Shipping SA v Hong Kong Chain Glory Shipping Ltd  EWHC 1355 (Comm), and Primera Maritime (Hellas) Ltd v Jiangsu Eastern Heavy Industry Co Ltd  EWHC 3066 (Comm) considered and applied.
In the instant case the Employment Tribunal and made fundamental findings of fact as to causation, which could not be challenged on appeal and had implicitly directed itself correctly as to issues of affirmation. Accordingly the appeal was dismissed.
HIS HONOUR JUDGE HAND QC
This is an appeal from the Judgment and Reasons of an Employment Tribunal, comprising Employment Judge Wade, Mr Simon and Mr Skelton, sitting at London (Central) over a period of 12 days in September and October 2014, the Judgment and Written Reasons having been sent to the parties on 1 December 2014. The Appellant's case was heard together with that of a colleague, a Mr Amini, who has not appealed. The two cases were interrelated, however, and I will need to refer to a limited part of the Reasons relating to him. The Appellant's case was that he had been subjected to a detriment on account of making protected disclosures within the meaning of section 43B and contrary to section 47B of the Employment Rights Act 1996 (``the Act''). He also alleged he had been constructively and unfairly dismissed and the reason or principal reason for that dismissal had been his making of protected disclosures (section 103A of the Act), an essential finding in that context because otherwise he had insufficient continuity of employment to qualify him to make a complaint of unfair dismissal to the Employment Tribunal. All these claims were rejected by the Employment Tribunal. The Appellant was represented by Mr Monaco, his solicitor, who appeared below. The Respondent was represented by Mr Sheridan, of counsel, who also appeared below. Their submissions were not completed until nearly 6.00 pm, by which time it was too late to deliver an oral judgment. I apologise for the delay in completing this Judgment. It partly reflects the complications of the case and partly a period of ill health suffered by me around Easter.
The Grounds of Appeal
As was observed by HHJ Richardson when he directed this matter to go to a Full Hearing the three grounds of appeal do not deal with events in chronological order; ground 3 is the first in time. I will summarise them, however, in the numerical order in which they appear in the grounds of appeal at pages 30 to 32 of the appeal bundle.
Ground 1 relates to a formal grievance raised by the Appellant on 8 November 2013 alleging that the Respondent had been unlawfully evading international sanctions in respect of its commercial transactions and that he was now suffering as a result of disclosure of that wrongdoing. The Employment Tribunal's decision on the substance of the grievance is at paragraph 125 of the Judgment and Written Reasons (see page 26 of the appeal bundle) in these terms:
``125. Mr Vairea also says that the company failed to properly investigate his grievance and his concerns about sanctions breaches but we do not agree.''
This was clearly derived from the List of Issues, which is at pages 28 to 31 of the supplementary bundle and specifically is a quotation of paragraph 1.3(o), the fifteenth allegation set out in that subparagraph of the List; it might also be implicitly related to paragraph 1.3(v) (see pages 29 and 30 of the supplementary bundle). I will return to that List shortly. HHJ Richardson regarded ground 1 as a complaint of inadequacy of reasoning on the part of the Employment Tribunal. Ground 1 is not confined to that, however, because, like the other grounds, it ends ``and if so, whether these detriments entitled him to resign''. This raises the question as to whether an inadequately investigated or inadequately processed grievance can amount to a detriment, which, given that it is related to a protected disclosure, amounts, therefore, to a repudiatory breach of contract supporting constructive dismissal. This could only arise if the Appellant succeeded in relation to his arguments that the alleged detriments relating to protected disclosure amounted to repudiatory breaches of contract.
Ground 2 also relates to the Appellant's grievance but is directed rather more to procedure than to substance. What had happened is that the Respondent regarded the grievance as comprising two discrete parts, one relating to whether or not there had been a breach of the international sanctions procedures, which the Respondent regarded as a question of compliance, and the other relating to whether the Appellant was suffering a detriment or detriments as a result of his disclosure. The latter was treated as a grievance and when it was rejected an appeal was entertained. In respect of the compliance matter, however, no appeal was permitted against the conclusions, which the Appellant regarded as a rejection of his complaints. It is not immediately clear to me whether this matter was raised as a detriment in the List of Issues, to which I have already referred; paragraphs 1.3(o) and 1.3(v) of the List come closest to doing so but neither really articulates this way of putting the detrimental conduct.
The Employment Tribunal concluded that the denial of the grievance procedure to the Appellant in respect of the breach of sanctions, i.e. what was regarded as a compliance issue, did not constitute a detriment to the Appellant (see paragraph 97 to 99 of the Written Reasons at page 20 of the appeal bundle). Whilst all three paragraphs are relevant it is only necessary for me to quote paragraph 99 which reads:
``99. Her [Ms Thomas - see below] process did not fit into the framework of an HR grievance complaint so what Mr Roy had said was correct. Indeed what the company would do following discovery of sanctions breaches was not really the Claimant's concern nor did he have the right to know whether and why certain members of staff were disciplined because such actions would not affect him personally. Mr Vairea did not suffer a detriment and in fact his allegations got a great deal of attention from senior staff.''
HHJ Richardson thought it arguable that the allocation of his complaints about breach of sanctions in general to a procedure, which did not provide for an appeal, might amount to a detriment. He also thought it was arguable that, contrary to what the Employment Tribunal had said at paragraph 99, somebody making a complaint about matters, which they believed to be in the public interest, could have a legitimate concern in whether their complaints had been properly addressed and might suffer a detriment if they discovered that they had not been. Nor did HHJ Richardson think it beyond argument that possibly this was not merely a procedural issue. Like ground 1, ground 2 also raises the question as to whether this exclusion from an appeal should have been found to be a detriment having the character of a repudiatory breach and justifying a resignation.
Ground 3 raises as alleged detriments loss of commission arising from the alleged need to renegotiate contracts with clients and the taking over of those contracts by a manager. The numbering of the ``detriments'' by the Employment Tribunal also seems to derive from the List of Issues at pages 28 to 31 of the supplementary bundle. Only paragraphs 1.3 can be relevant and the numbering of...
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