United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR PHILIP REED (of Counsel) Messrs Thomas Cooper & Stibbard Solicitors 52 Leadenhall Street London EC3A 2DJ
For the Respondent	THE RESPONDENT IN PERSON


 


MR JUSTICE KIRKWOOD: This is an appeal by an employer from the unanimous decision of an Industrial Tribunal at Nottingham on 26th June 1996. The tribunal gave substituted extended reasons on 31st October 1996. By its decision the Industrial Tribunal found that the employee was unfairly dismissed. She did not contribute to her own dismissal.

Mrs Stephens began to work for the employer, 2 Care, in December 1992. She began as a project worker. By May 1995 she was acting as deputy project leader. 2 Care is an organisation which amongst other activities runs residential psychiatric rehabilitation homes or projects. Mrs Stephens was employed at such a project in Derby called Trevayler House.

In the second half of 1995 certain complaints were made from Oaklands Healthcare Ltd which related to the handing over to them by 2 Care of a patient referred to as JW. The employer conducted its own investigation. Whether the employee had actually handled the handover, or whether it was that she had overall responsibility for it, she came into the focus of that investigation.

On 1st November 1995 the employer wrote to her saying that the investigation raised a number of points which needed to be addressed. A disciplinary investigation was held after some postponements on 4th December 1995. A number of other matters of alleged unprofessional conduct by the employee were raised, of which she had apparently had no prior notice. Following that, on 5th December 1995, the employer wrote to the employee setting up a formal disciplinary interview where some detail of the allegations was given. The date proposed in fact could not be met.

The employer's disciplinary procedure contains this passage:

"As soon as it becomes apparent that an investigation will result in a disciplinary hearing then you will be informed and a date set for the hearing. You will be given time to collect any information you may require and to find a person to accompany you if you wish."

On 18th December 1995, the employee had a meeting with Mrs Donna Green, the employer's personnel manager. At the meeting the employee asked for access to documents in certain categories that she thought relevant relating to the time since May 1995 that she had been deputy project leader. Mrs Green gave the employee sight only of those documents in the categories that the employee had identified that Mrs Green herself thought relevant. Mrs Green had not of course worked at the project and did not have the intimate knowledge that the employee had.

Following that meeting, the employee received a mandatory order to attend for the formal disciplinary interview in London four days later on 22nd December 1995.

Faced with those two reverses, as she saw them denial of what she supposed were to be relevant documents, and the pre-emptory summons for 22nd December 1995 the employee wrote a letter on 18th December 1995, in these terms:

"Dear Donna,

I feel that the way my disciplinary issues have been investigated has made it impossible for me to return to Trevayler as deputy project leader, irrespective of the outcome of the disciplinary hearing. I therefore consider myself constructively dismissed."

She made a reference to the statutory provision.

The employee then made a complaint of unfair dismissal. The tribunal did not find the requirement to attend on 22nd December 1995 to be a breach of contract. Nor did it find to be a breach some other matter of which the employee had complained to the tribunal, namely the manner of the employer's earlier investigation. The tribunal found that the employer was wrong to have denied the employee recourse to the grievance procedure whilst the disciplinary process was in train.

The important findings of the Industrial Tribunal however were as follows. In paragraph 6 of the extended reasons:

"6. ... She said that before her meeting with Donna Green on the 18 December she had made it clear that she wanted to see all necessary information in the communication book kept at Trevayler and the staff minutes and J W's personal files covering the time when she had responsibility at Trevayler as acting project manager in Derby. We accept what the applicant says about this.

...

8. The applicant made it quite clear that she wanted to see all the information in the communication book and staff minutes and J W's personal files, covering the whole time when she had responsibility as acting project manager at Derby. The respondents through Donna Green, acting under advice, gave the applicant only extracts which the respondents considered relevant. What the applicant thought was relevant to her case, she was not able to determine because the full information was not handed over to her. The Tribunal consider there was no reason why the respondents should deny the applicant access to that information, which she had specifically required and the respondents knew that that she required.

9. The applicant's contractual rights in respect of this matter is set out on page 100 of the disciplinary procedure [I interpose here, I think that was page 100 of the bundle that was before the tribunal], where it is stated under the heading "investigation": "You (that is the employee) will be given time to collect any [the tribunal's emphasis] information that you may require". The applicant was not given access to the information that she required and the respondents were in breach of the disciplinary procedure and therefore in breach of contract.

...

12. The Tribunal therefore conclude on the evidence that the respondents were in breach of the contract of employment in failing to give the applicant the information which she had requested. That breach was fundamental breach of contract having regard to the wording on page 100 of the disciplinary procedure. ...

13. As the respondents were not only in breach of contract but in fundamental breach of that contract, the Tribunal conclude unanimously that the applicant was justified in resigning on 18 December which was the same day as the abortive meeting with Donna Green, and that she was therefore constructively dismissed. ..."

In this appeal the appellant acts by Counsel, as it did before the Industrial Tribunal. The respondent employee, Mrs Stephens, was then, and is now, acting in person.

The appellant seeks to attack the decision of the tribunal on a number of grounds.

First, there was no breach of contract. The argument is that the provision of the disciplinary procedures, to which I have referred, goes primarily to allowing time to prepare the case rather than to documents. The provision does not contain any promise by the employer as to provision of information. If it does, it is only as to relevant information and cannot be used as a fishing expedition.

It seems to us that the Industrial Tribunal dealt with this in its emphasis on what the employee rather than the employer might find relevant, and its implicit finding that the employee was entitled to look to the employer for information. We are not satisfied that on this aspect an error of law has been established.

Secondly, the appellant argues that if this was a breach, it was an anticipatory breach. There was no time limit, it is said, for meeting the requests for information so that the time remained open until 22nd December 1995, and conceivably, if the employee had persuaded the formal interview meeting of relevance and importance, beyond that.

It is not clear to us to what extent that argument was taken or stressed before the Industrial Tribunal. The extended reasons do not address it. It may well be that the tribunal formed a view as to how categoric was Mrs Green's refusal. But the extended reasons do not inform us about that. It must therefore suffice for us to say that we are unimpressed by the appellant's argument on this aspect.

It is the appellant's next argument that has caused us the greatest concern. The argument is that even if this was a breach of contract, it was not of such seriousness as to amount to a fundamental breach entitling the employee to treat the contractual relationship as at an end. Counsel for the appellant cites textbook passages and the authority of decided cases and invites us to rule that what occurred could in no circumstances amount to a fundamental breach. We are not in this instance prepared to go that far.

The problem for us lies in paragraph 12 of the extended reasons, to which I have made brief reference. I quote again:

"12. The Tribunal therefore conclude on the evidence that the respondents were in breach of the contract of employment in failing to give the applicant the information which she had requested. That breach was fundamental breach of contract having regard to the wording on page 100 of the disciplinary procedure. ..."

We are unable to discern from this paragraph or indeed from the extended reasons as a whole, what considerations led the Industrial Tribunal to the conclusion that this was indeed a fundamental breach. The following sentence in paragraph 12 is in these terms:

"The result was the applicant did not know what she would have to face at the proposed disciplinary hearing on 22 December, some four days later. The incomplete information was given to her on the 18 December."

That following sentence, seems to us, to be a non sequitur. It may be that that sentence should be transposed to be read at the end of paragraph 13 of the extended reasons. That paragraph ends with these words:

"There was no justification, ... having failed to give her details of the prior disciplinary investigation."

But if it should, it does not go to the point upon which the tribunal reached its primary conclusion of fundamental breach, nor does it seem to go to the reasons that prompted the employee's letter of 18th December 1995 which I have already read into this judgment.

A further point in the appeal is that the tribunal did not make any finding that this withholding of information was the sole or primary reason for the employee's resignation.

Fourthly, the appellant argues that in the face of the employee's failure to attend the meeting on 22nd December 1995, the tribunal was wrong not to find contribution by the employee.

It is not necessary for us to address specifically those two arguments in the light of the broad conclusion we have reached. It became increasingly obvious to us as we heard the argument both for the appellant and from Mrs Stephens herself, that the decision of the Industrial Tribunal may have been, indeed we think it must have been, strongly influenced by the impression that the Industrial Tribunal gained of the witnesses and in the approach, respectively, of the employer and the employee. It may, for example, have been the Industrial Tribunal's impression, having heard and seen the witnesses, that by 18th December 1995 the employee's position vis-à-vis her employment had been made wholly untenable by the way in which she was being treated. But, as I stress, we do not know. The extended reasons scarcely enlighten us. I say scarcely, because we have in mind the closing words of paragraph 6:

"We accept what the applicant says ..."

That does hint at a conflict of evidence about what documents she had asked to see. We also have in mind the Industrial Tribunal's conclusion that the employer was unreasonable over the documents. But those are straws in the wind. In the end we cannot discern from the extended reasons what were the considerations and factors that led the Industrial Tribunal to a unanimous finding that the breach was fundamental.

We too are unanimous in our view that to substitute a ruling or a view of our own without having had the enormous advantage of hearing and seeing the witnesses would be quite wrong. To substitute a decision of our own on the papers alone and without knowing, because the extended reasons do not reveal, how and why the Industrial Tribunal reached the decision it did would be to risk substantial injustice. We have therefore reached the conclusion that, for the reasons we have given, this case will be remitted for a fresh hearing before a differently constituted Industrial Tribunal.