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Cite as: [1992] UKEAT 324_90_1401

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BAILII case number: [1992] UKEAT 324_90_1401

Appeal No. EAT/324/90

EMPOLYMENT APPEAL TRIBUNAL

4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

At the Tribunal

On 8th October 1991

Judgment Delivered 14th January 1992

Before

THE HONOURABLE SIR DAVID CROOM-JOHNSON DSC VRD PC

MR D A C LAMBERT

MR K M YOUNG CBE

MRS J WILTON APPELLANT

CORNWALL & ISLES OF SCILLY HEALTH AUTHORITY RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR JEREMY McMULLEN

(Of Counsel)

Solicitor

Royal College of Nursing,

11/15 Dix's Field,

Exeter,

Devon

For the Respondents MR D J OWENS

Solicitor

BEVAN ASHFORD

Solicitors

35 Colston Avenue

Bristol

BS1 4TT

Sir David Croom-Johnson: This is an appeal from a decision of an Industrial Tribunal given at Truro on 4 April 1990. The case which was before the Tribunal was a claim by Mrs Wilton, the present appellant, against the respondent Health Authority on the ground that she was unfairly dismissed. The way in which her employment actually came to an end was by her applying for ill-health retirement under the Authority's superannuation scheme and the Authority's acceding to that application. She says that amounted to her being constructively dismissed by the Authority. The Tribunal by a majority rejected her claim.

Mrs Wilton began work for the Authority as a Staff Nurse at the Redruth Hospital in November 1972. In 1983 she became the Night Sister. She was a member of the Royal College of Nursing (RCN). As Night Sister she was in charge of four wards containing about 65 beds. It was always contemplated that changes were going to be necessary. No major trouble seems to have developed until the end of 1987. The nursing staff were largely members of COHSE and were dissatisfied with changes in their work rotas, staffing levels and time "paid back" to them when asked to attend lectures. On 12 November COHSE registered a dispute with the Authority. On 29 November 1987 a further complaint was registered: this time it contained complaints against the attitude of Mrs Wilton to the other staff. Miss Brewer, the hospital manager, found these complains unspecific and vague, and asked for more details. She held a meeting with the COHSE night staff. A further letter of complaint was received from a staff nurse on 7 December. There was friction in the running of the wards.

This was all investigated by Miss Boorman, the Clinical Nurse Manager, who was senior to Miss Brewer. The result was that both Mrs Wilton and the staff nurse were seen together by Miss Brewer, who advised them to sort out their differences. They agreed then to try again to work better together.

Miss Boorman became concerned about Mrs Wilton's emotional state, and referred her to the Staff Health Department to determine whether she was well enough to manage the hospital at night. On 7 January 1988 Mrs Wilson was seen by Dr Stevens, who did not consider her unfit for work.

Friction continued. The kind of troubles which existed included complaints that Mrs Wilton wanted the lights left on at night so that the nurses could see the patients, whereas the nurses wanted them switched off to help the patients to sleep. Mrs Wilton also wished the nurses to sit where they could observe the patients. Some of the complaints read as trivial, but there was clearly a clash of personalties. On 10 March 1988 the staff nurse wrote a letter of further complaint to Miss Brewer, and these complaints were registered by Miss Brewer. Further complaints were made by other nurses.

The Industrial Tribunal found that the management did not recognize the validity of any complaints made against Mrs Wilton, and made that clear. COHSE came back on the scene, and on 21 April 1988 there was a meeting between the night staff, the COHSE representative, and Miss Brewer. A Personnel Manager for the authority, attended. As it was a COHSE meeting, Mrs Wilton was not asked to attend. Matters were clearly becoming serious. The staff were asked to put their complaints in writing. Four of them did so. These were characterized by the Industrial Tribunal as "of somewhat doubtful value."

Later, a Sister McVay, took over the night duty from 22 May to 24 July. She wrote a report describing the night staff who had been junior to Mrs Wilton as indifferent to their responsibilities, and entrenched in out-of-date working practices which they did not wish to change. The Industrial Tribunal described Sister McVay's report as "a damning indictment on the attitudes of the night staff."

In the meantime on 3 May 1988 Miss Brewer discussed the complaints with Mrs Wilton and her union representatives. One was Mr Howes, the full-time officer of RCN. The other was Sister Russell, the local representative. The statements of complaint were read out. Mr Howes from the Royal College of Nursing, recognized that there were problems, and it was he who suggested that there should be a training programme. That would remove Mrs Wilton from the area of dispute for a period and would update her in clinical and management technique.

In their decision, the Industrial Tribunal recorded that Mrs Wilton was not at all happy at the prospect, although she agreed to the scheme put forward by her union representatives. She was afraid it would be seen by the night staff as a disciplinary action against her. The Tribunal went on to say:

"In our judgment, it was not a disciplinary action. It was a sensible course suggested by the RCN and adopted by management. It was extended to other staff as part of an overall package for solving the problem. In the interim period Sister Wilton would return to her night duties while the new training was organised and also to prevent any suggestion of her being removed from her post."

It appears that the idea was that all the night staff from Mrs Wilton downwards should do a period on day duty in order to have a general updating on techniques and organisation, so that they would all learn to work together.

Accordingly Mrs Wilton went on duty on the night of 4th/5th May. Unfortunately there was an incident in the early morning when a staff nurse directly disobeyed two orders by Mrs Wilton. One was where she was to sit. The other concerned leaving the lights on. To add to Mrs Wilton's troubles, yet another staff nurse was making a list of complaints which she said she would be handing to Miss Boorman in the morning. Mrs Wilton was very distressed and at 4 am rang Miss Boorman who persuaded her to continue to the end of the shift because it would "look better." She had some support from another Sister, who was there to get experience of night duties. Miss Boorman arrived at 8 am. Mrs Wilton broke down and went off sick. She remained sick until her eventual retirement. Her last day of work was 5th May 1988.

The course of events thereafter is important. The Tribunal found that the RCN continued with Mrs Wilton's case. On 21 June Mr Howes wrote formally to Miss Brewer reciting the events of 4th/5th May, and said:

"...Sister Wilton now feels that she wishes for a formal investigation of the allegations made in December of last year which you spoke to her about and subsequent allegations made .... in Sister Harry's statement of 27 April."

He went on to add, however, that Sister Wilton had accepted his advice that if Miss Brewer did not wish to convene "a formal investigation with all witnesses subject to cross-examination then she will seek such an investigation by the formal grievance procedure." He enclosed a long statement made by Mrs Wilton, which ended:

".... these allegations are nothing short of victimisation which has been built up against me for five years, and now led to defamation of character. ... I am prepared to challenge all of them."

Miss Brewer sent a long and reasoned reply. She said at the end

"I am not trying to reflect that we do not have a problem with Redruth Night Duty. We all agreed on the 3rd May that problems do exist and that the best way of resolving them was to provide Sister with a Constructive professional updating programme which she requested, and Management has subsequently facilitated. The events of the night of 4th May, whilst unfortunate, do not in my opinion necessitate a change of approach to the problem ie an enquiry.

I would suggest that when Sister returns to duty, we go ahead with the updating programme which will, hopefully, resolve many of the problems, thus negating the need for an enquiry, the outcome of which/is potentially very negative indeed."

Mrs Wilton's reply, on 11 July 1988, was to record a grievance in accordance with the formal grievance procedure and ask for an investigation at which she would be represented by Mr Howes. "If you do not intend to arrange an investigation, I wish my grievance to be processed to the next stage without delay." On 29 July she set out her formal grounds of grievance, ending:

"I would reiterate that I reserve my right to initiate a formal grievance, regardless of whether I am off sick or at work."

On 25 August Mr Howes wrote on her behalf to Miss Brewer, saying that Management's proposals could not be accepted, and asking for an investigation.

After hearing the grievance on 4 November, a letter was sent on 23 November by Mr Saxby the Unit General Manager. He set out once more, clearly and temperately, the view of Management that raking over grievances that were 5 years old would be counter-productive. He repeated that the agreed updating scheme was the right way of going about things. Mr Howes replied that Sister Wilton wished to pursue "her contractual right to pursue her grievance until the procedure is exhausted." As it happens, she did no more until in April 1989 she applied for medical retirement.

On 8 May 1989 she presented her first form IT1 to the Industrial Tribunal alleging that she had been constructively dismissed. As her employment had not then been ended and she was still receiving pay, this application was regarded as premature and was not proceeded with. Eventually her application for ill-health retirement was granted. Her employment terminated formally on 30 November 1989. She then submitted a second form IT1 identical to the first.

Before coming to the decision of the Industrial Tribunal it is necessary to see what were the issues put before it. By her originating application Mrs Wilton claimed constructive dismissal on 30 November 1989. She set out lengthy grounds, covering a number of the facts which we have already recited and dealing with the deterioration of her health. The final "ground" read:

"By refusing to comply with its own procedures following serious allegations against a member of staff, the Management have created a situation where Sister Wilton has been unable to fulfil her contractual duties and in consequence it is considered that a constructive dismissal has taken place."

She stated her opinion of the reason for her dismissal as

"Management's unwillingness to challenge Trade Union Officials following a spurious complaint."

The Trade Union must be COHSE and the complaint against Management must be the failure to hold a formal enquiry with oral evidence given by witnesses.

The Authority put in a long answer, filling in all the gaps in the facts and giving details of the solution of "professional updating", ending "if the Tribunal finds there was a dismissal it was fair on the grounds of capability."

Constructive dismissal is covered by Employment Protection (Consolidation) Act 1978 s.55 which, so far as relevant, reads:

"An employee shall be treated as dismissed .... if .... the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct."

There must therefore

(i)be a breach of the contract of employment (actual or anticipatory)

(ii)sufficiently important to justify the employee resigning or terminating the contract

(iii)the employee must leave in response to the breach and not for some other unconnected reason

and (iv)the employee must not delay too long, otherwise he may be deemed to waive the breach or agree to vary the contract. Subsequent affirmation of the contract will amount to Waiver.

These requirements have been set out in Western Excavating (FCC) Ltd v. Sharp 1978 QB76 by Lord Denning. At the end of his passage he said:

"Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract."

The decision of the Industrial Tribunal

After reciting Mrs Wilton's assertion that she was forced to resign because the Health Authority failed to give her proper support, the Tribunal decided that the Authority did so fail. Although Management had rejected the nurses' complaints it did not do so forcefully enough. It had not disciplined the staff and did not deal with the problem firmly in the early stages. On the other hand, the Tribunal did not accept that there should have been a full, open, enquiry of the kind which Mrs Wilton wanted, and which would have had clear disadvantages. The re-training programme, suggested by RCN and adopted by Management, was found to be a sensible way of trying to solve the problem, but one which ought to have been instituted earlier. The Tribunal answered the first question in Mrs Wilton's favour, and found that the Management had been in breach of contract. It was a breach which persisted up to 5 May. On the basis of that finding, if Mrs Wilton had then treated the contract as having been repudiated by the Authority she would have been able to say that she had been constructively dismissed.

The Industrial Tribunal next directed itself on s.55, and asked itself whether there had been such a dismissal, the relevant date being, of course, 30 November 1989. The majority concluded that what had terminated the contract on that date was that Mrs Wilton's application to retire on the ground of ill-health had been acceded to by her employers. They found expressly that the Authority had put no pressure upon Mrs Wilton to make that application, a finding which cannot be faulted subject to a point made by the appellant to which we refer later in this judgment. After considering the case of Birch and Humber v. Liverpool University (1985) ICR 470, in which it was held that a finding of termination by mutual consent was possible, the majority made a similar finding in the present case, albeit on different facts. Although the decision by the Tribunal was expressed succinctly, we think a fair reading of its reasoning is that the application for superannuation because of ill-health was analogous to (but not governed by) Birch's case. The majority accordingly found that the contract of employment was terminated because of Mrs Wilton's ill-health, and not because of her employers' conduct. It expressly left open the question whether the ill-health had been caused by the employers' conduct. The decision was put in the alternative in this way:

"If we accept that the application for voluntary retirement was, in practical terms, a resignation and at least opens the possibility of a constructive dismissal, we have to consider the reason why she resigned. We do not consider that this was because of the employer's conduct. It was because of her ill-health. The employer's conduct may have led to that state of health, but that was not the direct reason why she resigned ......... she had to leave because of her state of health. She did not leave because of the employer's conduct."

Those passages have been criticised for two reasons. First, it is said that the use of the word "direct" was an impermissible interpolation into s.55. We do not see anything wrong in it. It is only saying what it was that "effectively" terminated the contract.

The second criticism is that the Tribunal was under an obligation to decide the question of causation. This weighed with the minority of the Tribunal, whose view was put in this way:

"Our dissenting Member take a more direct view of the matter. She concludes that the conduct of the employers was the direct cause of Mrs Wilton having to apply for the ill-health retirement, and does not accept that there was any break in the causation."

The absence of any finding whether the ill-health was caused by the employers' breach of contract is puzzling because the cause of the termination of the contract is normally an essential ingredient in concluding whether or not there has been a constructive dismissal. The Tribunal's findings in this part of their decision may be expressed in a form of shorthand, but there could well, and should, have been such a finding, particularly as Mrs Wilton's Counsel demonstrated that the medical evidence was all one way. We do not think there can be any doubt that Mrs Wilton's depression and nervous state which eventually made her unfit for work was attributable in part to the Authority's failure to give her proper support. But in expressing their conclusion as to what brought about the termination of the contract it is curious that the Tribunal made no reference to the requirement that the employee must not have elected to affirm the contract or delayed in treating it as having been repudiated by the Authority. That issue was clearly before the Tribunal in the Authority's reply and the necessary facts were dealt with in great detail by the Tribunal in its decision.

Whether it is implicit in the Tribunal's findings or whether they ignored the matter, does not matter, because it is clear that after 3 May Mrs Wilton did delay, and did affirm the contract. If the Tribunal ignored it it is still open to the Employment Appeal Tribunal to decide whether there was a constructive dismissal. The facts are not in dispute, and are fully set out by the Industrial Tribunal. The solution is a question of law, as was laid down by the Court of Appeal in Birch's Case, and we can make our decision on it unless there be some question of fact which requires us to send the application to the Industrial Tribunal for further findings. (We deal with that question later).

The Tribunal's finding that the decision to try to solve the dispute by means of the re-training programme was sensible and reasonable means that from then on there was no further repudiation of the contract by the Authority. The breaches were all before 5 May. The "conduct" of the employer ceased at least by them. From then onwards it was Mrs Wilton acting through RCN who was invoking the contractual terms and affirming them. She was entitled to a reasonable time to make up her mind and obtain advice, but what happened went far beyond that. She invoked the contractual grievance procedure, beginning on 29 July 1988 and continuing up to Mr Saxby's finding on 23 November 1988. Even then, she was saying that she would continue to use the procedure, although she did not do so. Later, in April 1989, she invoked the contractual procedure of applying for ill-health retirement.

We have concluded, therefore, that unless there is some reason for remitting this case to the Industrial Tribunal for further findings of fact, this appeal should be dismissed, and that the decision that there was no constructive dismissal was right.

Counsel for Mrs Wilton has asked for further findings on

(i)the causation of Mrs Wilton's ill-health. As we have said, the evidence is all one way, and we are prepared to make the necessary assumption in her favour. But if she affirmed the contract, no such finding is necessary, and the Tribunal's refusal to make it was justified.

(ii)Whether Mrs Wilton in May 1988 would have been justified in treating the contracts as repudiated by the Authority. But the finding of the Tribunal in her favour on this point is clear.

(iii)Whether Mrs Wilton's affirmation meant that there was no constructive dismissal. But all the facts were fully investigated and the result is a question of law.

(iv)the Tribunal's finding that no pressure was placed on Mrs Wilton to apply for ill-health retirement. On this the Tribunal did make a clear finding. It found expressly that the application came entirely from Mrs Wilton herself. Counsel has argued that ill-health, caused by the Employer's "conduct" is capable of being pressure, but that is not a realistic or correct way of looking at what happened, and would be contrary to the Tribunal's clear finding of fact.

In the result we dismiss this appeal.