NWT Freight Forwarding Ltd v Owen

An employee may establish constructive dismissal where the employer’s conduct, viewed cumulatively, amounts to a fundamental breach of the implied obligation of trust and confidence. A final unreasonable instruction may operate as the last straw by reviving the significance of earlier breaches. An Employment Tribunal’s formulation of a particular implied term may be imperfect, but its decision remains sustainable if its findings of fact, read as a whole, support a fundamental breach. An appellate tribunal should not overturn such a conclusion where there is no error of law.

NWT Freight Forwarding Ltd appealed against the Employment Appeal Tribunal’s dismissal of its appeal from an Employment Tribunal decision finding that Graham Owen had been constructively and unfairly dismissed. Mr Owen had resigned after being instructed, shortly after returning from a nine-day continental trip, to undertake early long-haul driving duties the following morning, accompanied by a threat of disciplinary action. The Employment Tribunal relied on the instruction, the surrounding conduct, and earlier alleged breaches as constituting a fundamental breach and, alternatively, the last straw.

The employer argued that the Tribunal had invented an implied term concerning yard duties and 24 hours’ notice without sufficient evidential foundation. The central issue was whether that defect undermined the finding of constructive dismissal.

1. Application refused. The proposed appeal had no real prospect of success. Lord Justice Mummery gave the substantive judgment, and Lord Justice Keene agreed.
2. The Employment Tribunal had criticised the employer’s conduct on 16 May 2000 and considered the history of earlier conduct as a whole. Although the specific implied term concerning allocation of yard duties and 24 hours’ notice was formulated too broadly in light of the evidence, that did not determine the appeal.
3. Reading the Employment Tribunal’s extended reasons as a whole, its findings supported the conclusion that the employer’s conduct amounted to a breach of the implied obligation of trust and confidence. The instruction to resume driving at 6.30 am after the overseas trip, coupled with the threat of disciplinary action and the warning not to take the matter to a tribunal, was capable of being and was a fundamental breach.
4. The final incident could also constitute the last straw. Viewed in the context of the earlier course of conduct, it revived the significance of the previous incidents and entitled the employee to treat the contract as terminated.
5. There was no error of law in the Employment Tribunal’s decision. The Employment Appeal Tribunal was correct to uphold the result, and permission to appeal was refused.

• Court of Appeal (Civil Division): application for permission to appeal refused.
• Employment Appeal Tribunal: appeal by NWT Freight Forwarding Ltd dismissed on 17 May 2002.
• Employment Tribunal, Sheffield: found that Graham Owen had been constructively and unfairly dismissed; extended reasons sent to the parties on 28 March 2001.