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F Daley v. Serco Home Affairs Ltd & Others


Employment Appeal Tribunal

An employment tribunal had been correct to find that an employee alleging a fundamental breach of contract who resigned 15 months after the breach had affirmed the contract.
The appellant former employee (D) appealed against an employment tribunal's decision to dismiss his claims of constructive dismissal and race discrimination against the respondents. D was of Afro-Caribbean ethnicity and worked for the first respondent (S) as a prison custody officer. He was responsible for transporting prisoners to and from various courts and prisons. D had incurred fines which he had not paid and had ignored a court summons. A bench warrant was issued for his arrest and he was arrested after arriving at a magistrates' court with several prisoners. He claimed that S had conspired with the court service to get him falsely arrested and detained. In a further incident, D was assaulted by an escaped prisoner and three months later began a period of sick leave due to stress. He claimed that S had failed to pay him company sick pay but S maintained that he had exhausted his contractual entitlement. He brought a claim of constructive dismissal relying on the arrest and a number of other incidents. His claim was brought 15 months after the arrest at the magistrates' court. The tribunal found that S had not breached the contract. It accepted D's evidence that the arrest had been the final straw so far as his employment was concerned, but found that the delay in resigning his employment was fatal to his claim in any event. His discrimination claims were also dismissed. D submitted that the tribunal's reasoning was inadequate and the decision perverse. He argued that the tribunal had failed to consider whether the implied term of mutual trust and confidence and matters relative to its breach went beyond the date of his arrest.
HELD: There was nothing to justify a submission that the tribunal had misapplied the principles of Western Excavations (ECC) Ltd v Sharp (1978) QB 761 CA (Civ Div) when considering D's claim of constructive dismissal, Western Excavating considered. It was necessary to view the employment tribunal's decision as a whole. What mattered was the substance of the judgment looked at broadly and fairly to see whether the reasons given for the judgment were sufficiently expressed to inform the parties as to why they had won or lost. It was not necessary for the tribunal to make findings on every factual issue before it. The facts found by the tribunal made it clear that D was an extremely difficult employee and S's management of him had been poor. The tribunal had clearly considered all of D's allegations and, having rejected much of his evidence, was entitled to conclude that there had been no breach of contract and no discriminatory behaviour on the part of the respondents. The tribunal had not found that the employment relationship ended on the day of D's arrest. It accepted D's own evidence that the events of that day had destroyed his trust and confidence in S. However, S had not destroyed D's trust and confidence; if anything it was D's conduct that placed him in breach of contract. It followed that D had affirmed his contract of employment and the respondent had committed no breaches of it either before or after D's arrest. There was nothing to suggest that S's conduct was racially motivated, whether to raise any possible inference of discrimination or at all. The tribunal had found that D had exhausted his contractual sick pay and that S had correctly applied its scheme. The tribunal's judgement as a whole sufficiently complied with the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.30 and the requirements set out in case law, English v Emery Reimbold & Strick Ltd (2002) EWCA Civ 605, (2002) 1 WLR 2409 and Meek v Birmingham DC (1987) IRLR 250 CA (Civ Div) applied.

Appeal dismissed.

Counsel for the respondent: Melanie Tether.

LTL 8/1/2010

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