Salamis (Marine & Industrial) Ltd v Forbes
| Jurisdiction | Scotland |
| Judgment Date | 14 July 2005 |
| Neutral Citation | [2005] CSIH 57 |
| Date | 14 July 2005 |
| Court | Court of Session (Inner House) |
Employment law - Process - Appeal to Employment Appeal Tribunal on issue of fact - Whether competent - Employment Tribunals Act 1996 (cap 17), sec 21(1)
Section 21(1) of the Employment Tribunals Act 1996 provides for an appeal to the Employment Appeal Tribunal on a question of law.
An employee claimed that he had been unfairly dismissed. The employment tribunal held that he had become entitled to terminate his contract of employment without notice to the employer by reason of the employer's conduct which had destroyed the relation of trust and confidence. However, the employment tribunal also held that by not taking immediate steps to terminate, the employee had affirmed the contract of employment and that accordingly he had not been constructively dismissed and his application fell to be dismissed. The employee appealed to the Employment Appeal Tribunal which held that the employee had been constructively dismissed. The employer appealed to the Court of Session.
Held that: (1) the statutory jurisdiction of the Employment Appeal Tribunal was restricted to questions of law (para 7); (2) it was not open to the Employment Appeal Tribunal to address the question of whether the respondent had affirmed his contract of employment upon its own evaluation of the documentary material, and by doing so the Employment Appeal Tribunal erred in law (para 16); and appealallowed.
Douglas Forbes made an application to the employment tribunal claiming unfair dismissal. The tribunal dismissed the application. He appealed to the Employment Appeal Tribunal which upheld the appeal. The appellants appealed to the Court of Session.
Cases referred to:
McGregor v Intercity East Coast LtdSC 1998 SC 440
Melon v Hector Powe LtdSCUNKICRUNKSCUNK 1980 SC (HL) 1; 1981 SLT 74; [1981] 1 All ER 313; [1981] ICR 43; [1980] IRLR 477 and 1980 SC 188; [1980] IRLR 80
Piggott Bros & Co Ltd v JacksonICRUNK [1992] ICR 85; [1991] IRLR 309
Yeboah v CroftonUNKUNK [2002] EWCA Civ 794; [2002] IRLR 634
The cause called before an Extra Division, comprising Lord Hamilton, Lord Reed and Lord Marnoch, for a hearing on the summar roll.
At advising, on 14 July 2005, the opinion of the Court was delivered by Lord Hamilton-
Opinion of the Court- [1] In April 1989 the respondent ('Mr Forbes') commenced employment with the appellant ('Salamis') as an architectural project engineer. Thereafter he was promoted and further promoted. From 2001 he held the position of manager architectural/electrical services. The year 2001 proved to be a good one for Salamis and Mr Forbes's department exceeded its target. However, by the end of that year Mr Forbes was, as he described his condition, 'stressed, tired and exhausted' - essentially as a result of lack of staff in his department. For some time he had been complaining to his employer about the shortage of staff. In the event Salamis engaged a joiner, whom Mr Forbes regarded as not having the required skills, and then, without consulting Mr Forbes, appointed a person, Stephen Walker, to a position senior to the respondent in the department. That appointment took effect from 11 March 2002. On 15 March 2002 Mr Forbes was signed off with 'work related stress'. He subsequently resigned.
[2] The employment tribunal, to which Mr Forbes later presented a claim that he had been unfairly dismissed, held (by a majority) that Salamis had conducted itself in a manner which destroyed the relationship of trust and confidence between it and Mr Forbes and that Salamis was accordingly in fundamental breach of the contract of employment. That conclusion proceeded on the view that, although Mr Forbes had in practical terms been responsible for the day to day operations of the department, Salamis had failed to seek and consider his opinion on matters related to the department, had engaged Mr Walker (who had previously been considered for appointment to a position subordinate to Mr Forbes) as head of the department in place of Mr Forbes, had restricted Mr Forbes's responsibilities and had done all these things without meaningful warning or consultation with Mr Forbes. In these circumstances, the employment tribunal held, Mr Forbes became entitled to terminate his contract of employment without notice by reason of Salamis's conduct. That conclusion is no longer in dispute.
[3] However, Mr Forbes did not take immediate steps to bring the contract of employment to an end. Ultimately, on 27 August 2002, he wrote to Salamis intimating his resignation, confirming that position by letter of 12 September. He finally left Salamis's employment on 22 November 2002.
[4] A prerequisite to his claim was the need to demonstrate that he had been dismissed by Salamis. In the...
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