Symphony Group Plc v Hussey [1992] UKEAT 79_91_1510 (15 October 1992)

JUDGMENT Revised APPEARANCES For the Appellant Mr J Hand QC (of Counsel) Messrs Eversheds Hepworth & Chadwick Solicitors Cloth Hall Court Infirmary Street LEEDS LS1 2JB For the Respondents Ms Ros Campbell (Employment Rights Worker) Citizens Advice Bureau 31 New York Street LEEDS LS2 7DT SIR DAVID CROOM-JOHNSON: Symphony Group are a large firm making and supplying fitted kitchens to local authorities and the retail trade. They have three factories and 1000 employees. The applicant Mr Hussey was employed by them from 6 March 1985 until he left on 24 April 1990. He was an assembler of kitchen units and described as a very satisfactory worker, competent at his job, and had been made a team leader. There had been no complaints about him whatsoever. He was not concerned in fitting units. Mr Hussey has a brother Brian, who was not employed by Symphony. Brian met an old age pensioner, Mrs Allen, at bingo. Mrs Allen asked Brian to do some work on her kitchen. This was about Easter-time 1990. Brian gave an estimate of £1600 which she accepted. She then said she wanted a gas cooker to be fitted. That resulted in Brian altering the estimate upwards to £1800. The contract was accepted. Brian then contacted his brother John, the applicant, and said "Can you help me?". The applicant agreed. He helped his brother at the week-end and in his spare time, and drove the hired van. He took a minor part in it. It did not conflict with his work for Symphony, and Symphony made no complaint about it. The work was badly done, and Mrs Allen went to the applicant's house to complain. He told her to go and see Brian. She did so, and got no satisfaction. The reason why Symphony became involved at all was because someone had told Mrs Allen that the applicant worked for them. Her version was that the applicant told her that he held himself out as a kitchen fitter employed by Symphony and that he had given her brochures from the company. Be that as it may, on Monday 23 April Mrs Allen went with her husband and saw Mr Sinfield, the company's production director. She told him what had happened and that the work was very badly done. As a result, Mr Sinfield sent two foremen fitters called Maclean and Goodyear to inspect the work. They returned and confirmed that the work was very badly done, so Mr Sinfield arranged for it to be put right at Symphony's expense. He saw the applicant in the presence of Mr Morton, the production manager. It was not a disciplinary interview. The applicant was told the work was badly done and what Mrs Allen had said about the holding out and brochures, which the applicant denied. Mr Sinfield suggested, since the work was bad and Mrs Allen was upset, that the Hussey brothers should do something about it. Also Mrs Allen had produced to Mr Sinfield a receipt to show that for the gas cooker which had been installed she had been charged over £600, whereas in fact Brian had paid £300 for it. According to the Industrial Tribunal Mr Sinfield suggested to the applicant that Mrs Allen should be repaid what she had paid for it: but when the applicant said he could not, it was his brother's responsibility, "Mr Sinfield suggested that he go and see his brother and get the matter sorted out". Brian was not prepared to do anything about it, and next morning the applicant saw Mr Sinfield again and said that he had not got the money for Mrs Allen. He then went to his work bench, and thereafter, there were episodes of what may be called harassment by his workmates, disparagement, and an instance of graffiti scrawled on his bench and on his clocking-out card, all blaming him for taking advantage of Mrs Allen. One of his fellow workmen warned him to keep out of the way of Maclean and Goodyear, the men who had visited the kitchen. The applicant felt threatened and ostracised, and that day 24 April, he felt upset, left his job and did not return. He claimed he had been constructively dismissed because he had lost confidence and trust in his employers. Symphony appealed against the Tribunal's conclusion that there had been a constructive dismissal because it was not supported by the facts stated in the decision, and adopted an erroneous approach. We were told that at the hearing there was a complete conflict of evidence. Miss Campbell, who has appeared on behalf of Mr Hussey, has told us he said that Mr Sinfield and Mr Morton threatened him with the police or dismissal if he failed to remedy the defects in the work, and threatened to "sort him out" if he did not. We were told they threatened to "put the word out on the shop floor unless he produced the money the next day", and had various conversations with his workmates encouraging or condoning their behaviour, all of whom had been given "the company's version" of the private dispute. It seems Mr Sinfield and Mr Morton, both of whom gave evidence to the Industrial Tribunal, denied that they did any of those things. The Tribunal's decision contains no finding of fact on these matters: it does not even suggest that there was a conflict of evidence. The factual history as given in the Tribunal's decision is, if anything, inconsistent with the applicant's story. There is no finding that the undoubted unpleasantness manifested by the workmates was with the knowledge of or at the instigation of the management, or that the workmates were acting within the scope of their employment in what they did, rather than taking a cue from the two fitters. The most that Miss Campbell can point to is that when someone chalked on his bench on 24 April "John Hussey is £900 worth of shit" and Hussey complained about it to his supervisor, the supervisor told him to rub it off. That is as consistent with a common-sense view by the supervisor that if insults are ignored the trouble dies down. The Industrial Tribunal found that the employers believed what Mrs Allen said when she first came to see them, and so sent the two fitters to her house. But the employers were not unreasonable in checking on what Mrs Allen told them once she had complained to them. Mr Hand, on behalf of Symphony, has criticised the reasoning whereby the Tribunal found that the treatment (as described in their decision) of the applicant led to a loss of confidence and trust by him in his employers whereby his employers were in fundamental breach of contract and so guilty of a constructive dismissal. In the facts as recited by the Tribunal we are unable to see any such behaviour by the employers, and with respect to the Tribunal their reasoning is by no means clear. Miss Campbell submits that the finding of the Tribunal means that they accepted Mr Hussey's evidence but we are unable to agree. She seeks to rely on the well-known passage in the judgment of Sir John Donaldson in Martin v Glynwed Distribution [1983] ICR 511 at page 520 at G, on the requirements of an Industrial Tribunal in making findings of fact. But there must at least be some basic findings of fact on which the Tribunal's conclusion is based. The need was well expressed in Levy v Marrable Co Ltd [1984] ICR 583 by Waite J at page 587: "We think the principle involved is the following: where there has been a conflict of evidence at the hearing before an industrial tribunal on a significant issue of fact, then the industrial tribunal's finding (i.e. their acceptance or rejection of such evidence) must be made plain one way or the other. Express words are not necessary. ............... But the language must be sufficiently full and clear to make it possible for anyone to tell from a reading of the decision as a whole whether the members have believed the relevant witnesses or not. Failure by the industrial tribunal to provide that indication, expressly or by reasonably clear implication from the overall language of their decision, amounts to an error of law." This decision fails that test. In our view the case should be remitted to another Industrial Tribunal for rehearing on the issue of constructive dismissal. Symphony have appealed on a second matter. The Employment Protection (Consolidation) Act 1978 Section 8 gives an employee a right to an itemised pay statement, identifying any fixed deductions from his gross wages. Mr Hussey was normally paid in cash and his pay statement was given to him at the same time. When he left Symphony and was making up his mind what to do, his wages were paid into his bank account. His pay statements were sent to an address kept in the wages department at the company's offices. Unfortunately, he did not receive the statements, because the address was an old one he had left. The deductions referred to were the normal statutory deductions which were routinely deducted. The applicant eventually went to that address but could not trace the landlord. He did not lose any money, but he did not receive his statements. Section 11(8) gives an Industrial Tribunal a duty to make a declaration that the employee has not been given a section 8 pay statement, and where it finds that if unnotified deductions have been made for a period of thirteen weeks it is given a discretion to order the employer to pay the employee a sum not exceeding those unnotified deductions. Mr Hussey went to the company and asked for copies of his statements, but for some reason he was refused them. He claimed thirteen weeks deductions totalling £391.44. The Industrial Tribunal declared that there had been a breach of section 8 and ordered the payment of £391.44. Mr Hand reserved the question whether posting to the old address amounted to "giving" for the purpose of section 8. His real point was that in making the order the Tribunal had failed to exercise its discretion at all. He submitted that the object in making the order could be either compensatory or punitive. This order could not be compensatory because Mr Hussey had not lost any money. It could not be punitive because a genuine clerical error had been made. In any event, the Tribunal gave no reason for ordering the maximum amount as it did. Miss Campbell suggested that perhaps the Tribunal had expressed its displeasure at the failure to provide copies, even though it did not say so. Mr Hand's riposte that that was that if that had been the reason the discretion would have been wrongly exercised by taking into account an irrelevant factor. We prefer to take the view that in the absence of any reason for making the order given by the Tribunal, it seems that no discretion was exercised. We allow Symphony's appeal on this point, and the matter should be remitted to the fresh Tribunal together with the rest of the case. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII