United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR EDMONDSON (Husband)
For the Respondents	PROFESSOR LEWIS (of Counsel) Messrs Cole & Cole Solicitors Buxton Court 3 West Way Oxford OX2 0SZ


 


MR JUSTICE BELL: This is an appeal by Mrs Edmondson against the decision of an Industrial Tribunal held at Reading, promulgated on 5th February 1997.

Mrs Edmondson was a part-time health visitor with the respondent NHS Trust. On 14th February 1996 she resigned, and on 7th March 1996 she presented an Originating Application which the Industrial Tribunal, rightly, treated as a complaint of constructive and unfair dismissal from her employment.

The hearing of the application extended over four days, two in October and two in December 1996, and the unanimous decision of the Industrial Tribunal, now appealed against, was that Mrs Edmondson had resigned in circumstances where she was not constructively dismissed pursuant to the provisions of s.95(1)(c) of the Employment Rights Act 1996. Her application was accordingly dismissed.

Subject to matters which are not relevant to this case, s.95(1)(c) of the Act provides that an employee is dismissed by her employer if the employee terminates the contract under which she is employed (with or without notice) in circumstances in which she is entitled to terminate it without notice by reason of the employer's conduct. Put shortly, the basis of Mrs Edmondson's appeal is that the Industrial Tribunal was perverse in not finding the Trust so in breach of her contract of employment as to entitle her to terminate it without notice.

Mrs Edmondson's case, presented throughout by her husband, was and is based on a number of allegations against the Trust and those who worked for it. It is convenient to take the amended Notice of Appeal and Mrs Edmondson's skeleton case as the points of reference for the various matters, of which she complained, in the Trust's treatment of her.

Ground 1

In March 1995 there was an investigation by the Line Manger of the appellant, a Mrs Richardson, into the appellant's record-keeping. In June 1995 there was a disciplinary hearing chaired by a Mrs Dauncey, which resulted in a first formal warning to be on file for a year. Mrs Edmondson's contention is that Mrs Richardson presented false and misleading evidence about Mrs Edmondson's caseload to the disciplinary hearing, and that that amounted to a breach of an implied term of Mrs Edmondson's contract of employment that the National Health Service Trust would not without reasonable or proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties.

In fact, the disciplinary hearing involved lack of record-keeping, and the fact that Mrs Edmondson held medication for a client. There was also another different complaint which focused on Mrs Edmondson's lack of record-keeping. The relevance of caseload was as mitigation, an explanation of why Mrs Edmondson's record-keeping might be poor.

One of Mrs Edmondson's points at the hearing was that she had a particularly heavy caseload, exacerbated by problem families. The Industrial Tribunal agreed with Mrs Edmondson's assertion that erroneous figures underestimating her caseload were supplied to the disciplinary hearing by Mrs Richardson. The majority of the Industrial Tribunal thought that that was "a crime of omission", whereas one member thought it suited Mrs Richardson to be remiss in providing erroneous figures.

Mr Edmondson today has contended that the finding of the Industrial Tribunal following its majority, of course, that Mrs Richardson's faulty figures were a crime of omission, was a perverse finding, particularly in the light of the fact that Mrs Richardson would not admit that her figures were wrong. His argument continued that what Mrs Richardson did must be taken as the conduct of the Trust itself and that it justified resigning.

We doubt that what Mrs Richardson did, albeit that she was the Line Manager of Mrs Edmondson, can actually be taken to be conduct of the Trust itself. However that may be, Mrs Dauncey of the disciplinary hearing accepted that there were mitigating circumstances in relation to Mrs Edmondson's caseload, but stated that she was concerned that Mrs Edmondson did not accept the full implications of omissions in record-keeping. So the Industrial Tribunal concluded that Mrs Edmondson was not disadvantaged by the inaccurate caseload figures, and that Mrs Dauncey was certainly entitled to come to the view that a written warning was appropriate, because she was concerned, rightly in the view of the Industrial Tribunal, with Mrs Edmondson's cavalier approach to record-keeping.

In our judgment, those were conclusions to which the Industrial Tribunal was entitled to come. In our view, there was really no substantial ground for the Industrial Tribunal finding that Mrs Richardson's putting forward of false figures in the course of a disciplinary hearing was an act of the Authority itself, which amounted to repudiation of the whole contract of service of Mrs Edmondson, and an expression of an intention that it no longer wanted her as its employee.

Ground 2

In June 1995 Mrs Edmondson's appeal against the disciplinary body's decision was heard but failed. Mrs Edmondson contends that the Trust must take responsibility for the actions of Mrs Richardson, as we have said, and that in dismissing Mrs Edmondson's appeal the Trust again undermined the employer/employee relationship of trust and confidence in breach of the same implied term of her contract of employment. That breach is fundamental to Mrs Edmondson's case put forward by her husband that she was entitled to treat her contract of employment as at an end.

This second ground or allegation, really goes hand in hand with the first, in our view. If the first has no real substance, as in our judgment the Industrial Tribunal was entitled to find, then the second cannot provide it.

Ground 3

In October 1995 a Mrs Farmer, a health visitor with the Trust, complained that Mrs Edmondson had telephone contact with a client of Mrs Farmer on two occasions. Mrs Edmondson was suspended on full pay pending a full investigation. The suspension was by a member of management called Mrs Caro Fickling. The following month Mrs Edmondson was given a final written warning. She appealed unsuccessfully against that.

Mrs Edmondson contended that her suspension was unreasonable and not in accordance with the Trust's disciplinary procedures. The Trust did not allow Mrs Edmondson to see Mrs Farmer's letter of complaint. All this too was a repudiatory breach of her contract of employment. The Industrial Tribunal, it is said, should have considered this breach of contract with the action of Mrs Richardson, her Line Manager, and the Trust's support of Mrs Richardson.

In fact, the Industrial Tribunal thought that suspension was an over-reaction, and it could not accept the statement in the Trust's procedures that it was not to be regarded as disciplinary action. But the Industrial Tribunal went on totally to reject the proposition that the motive behind the suspension was part of a campaign against Mrs Edmondson. The Industrial Tribunal was unanimous that the decision to impose a final warning was a reasonable response of management to the situation. It thought that the disciplinary hearings were concluded in a fair and exemplary manner. Although Mrs Edmondson was not shown Mrs Farmer's letter, the substance of her allegations was outlined to Mrs Edmondson.

The matter which has given us most concern in this case is the fact of Mrs Edmondson's suspension which the Industrial Tribunal judged to be an over-reaction and which lasted for just over 15 weeks and which Mr Edmondson described as "prejudicial to her return to work". Investigation of the complaint that Mrs Edmondson had contact with another health visitor's client took about 6½ weeks to complete by our calculation, date to date, after the suspension; and it was then nearly nine further weeks before the suspension was lifted. However, the Industrial Tribunal gave clear consideration to the point made in relation to suspension and came to the following conclusion:

"24 ... We have already observed that we do not necessarily agree that the sanction of suspension was appropriate in the circumstances. However, we are unable to say that that act on its own is sufficiently grave as to constitute a significant breach going to the root of the applicant's contract of employment. The applicant was in receipt of full pay on suspension and the length of suspension to the disciplinary hearing was relatively short."

The Industrial Tribunal went on to say that it had reached the clear view that the decision to suspend was made in good faith.

Mr Edmondson has contended that the Industrial Tribunal appears to have treated the suspension in isolation, but immediately after its evaluation of the suspension, to which we have just referred, the Industrial Tribunal went on to say in paragraph 25 of its decision:

"25 We are also unable to find any other matters which even remotely could amount to constructive dismissal or which when taken together [our emphasis] would amount to the last straw principle. Unanimously we conclude that there has been no constructive dismissal and therefore this application fails."

In our judgment, the Industrial Tribunal clearly considered, as that paragraph indicates, the impact of all matters taken together. We have come to the conclusion that we cannot fault the Industrial Tribunal in its evaluation of Mrs Edmondson's suspension taken with all other relevant matters.

Ground 4

Mrs Edmondson contended that there was a bad working relationship at Didcot Health Centre, and a poor empathy between herself and others. Mrs Edmondson made allegations of harassment and bullying, particularly from her line management, but the Trust took no reasonable steps to support her in carrying out her duties without harassment from her colleagues or to address her grievance promptly or properly. The Trust did not take her allegations seriously and the investigation which it held after her resignation did not involve Mrs Edmondson who was not spoken to. Moreover, the investigation was held in March 1996, nine months after Mrs Edmondson first complained of colleagues' attitudes towards her. She contended that this was in breach of implied terms of her contract of employment, firstly, that the Trust would take such steps as were reasonable to support her in carrying out her duties without harassment or disruption by colleagues; and, secondly, that the Trust would reasonably and promptly afford a reasonable opportunity to her to obtain redress of any grievance that she might have. Mrs Edmondson's case is that the Industrial Tribunal did not consider Mrs Edmondson's point raising a breach of the second of those alleged implied terms.

In fact, the Industrial Tribunal found that there was a bad working relationship at Didcot Health Centre where Mrs Edmondson and others worked. The Industrial Tribunal considered evidence of discussions about Mrs Edmondson's return to work at the beginning of February 1996; there was disputed evidence about that but the Industrial Tribunal decided, in effect, that Mrs Edmondson (at a meeting where she had union representation) said a return to work at Didcot would be untenable; that there was a genuine attempt to find an alternative which was made difficult by Mrs Edmondson placing geographical limitations on where she wanted to work; and that in those circumstances, the Trust reached the conclusion that any return to work would have to be at Didcot. The Industrial Tribunal accepted that there was a strained working atmosphere at Didcot, but considered that that Trust's conclusion that any return to work would have to be at Didcot was reasonable. Soon after that, Mrs Edmondson's union representative sent her resignation letter stating that her trust and confidence in her employer had been shattered, and she had no alternative other than to resign with immediate effect.

There was then an enquiry into Mrs Edmondson's complaint of bullying, which found that there was no substance in the allegation. The Industrial Tribunal considered that it was a reasonable investigation, albeit not involving Mrs Edmondson, because she had left the Trust's employment and was not in good health at the time.

For the purposes of this appeal, we accept Mr Edmondson's averment that there was nothing wrong Mrs Edmondson's health at that time. But we are not persuaded that the Industrial Tribunal failed to consider all Mrs Edmondson's points. The Industrial Tribunal considered all her significant points. The Industrial Tribunal's consideration of the alleged breach of an implied term to maintain trust and confidence extended to the issue of whether the Trust had properly and timeously investigated Mrs Edmondson's complaints of victimisation, harassment and bullying. We would see any implied term that the employer would reasonably and promptly afford a reasonable opportunity to an employee to obtain redress of any significant grievance as part of the implied term to maintain trust and confidence or to maintain co-operation, which is well-established; but whether we are right or wrong about that, the question for the Industrial Tribunal at the end of the day was not so much the precise definition of implied terms and the finding of whether there had been any breach of any particular term of the contract of employment, but whether the circumstances were such that the employee was entitled to terminate the contract under which she was employed without notice by reason of the employer's conduct. See s.95(1)(c).

Any breach of contract or accumulation of breaches of contract has to be of sufficient gravity to pass that test. The Industrial Tribunal certainly addressed that question, in our view, in respect of all Mrs Edmondson's actual complaints. So far as the allegation of taking nine months to get round to an investigation in relation to Mrs Edmondson's allegations of bullying and victimisation is concerned, it seems to us that much of the power was taken out of this point by the fact that Mrs Edmondson did not avail herself of the grievance procedure.

Mr Edmondson this morning contended that the grievance procedure was inappropriate for investigation of bullying. We are not persuaded of that. Mrs Edmondson could, in our view, have got the ball rolling by initiating the grievance procedure, but chose not to, if Mr Edmondson is correct, because she thought she would get nowhere with it. The fact that Mrs Edmondson was not spoken to in the course of the eventual investigation in March 1996, loses its force when we remind ourselves that Mrs Edmondson was no longer in the Trust's employment at the time of the investigation.

Ground 5

Mrs Edmondson contended that all these matters taken together had a cumulative effect in breach of the implied term of Mrs Edmondson's employment imposing an obligation of trust and confidence. The Trust failed to treat her with dignity and consideration especially in the light of her long and faithful service. The Industrial Tribunal, it is contended, did not consider this cumulative effect.

But the last paragraph, paragraph 25 of the Industrial Tribunal's decision, which fully but succinctly considered Mrs Edmondson's individual allegations and complaints, clearly involved consideration of the various matters "when taken together" as we have already said.

Moreover, the Industrial Tribunal recorded that it was said on behalf of Mrs Edmondson that there had been a campaign of bullying and victimisation and that the disciplinary sanctions were part of that campaign, but it went on reject any assertion of a management conspiracy of victimisation and bullying.

Although, as we have said, the Industrial Tribunal accepted that there was a bad working relationship at Didcot Health Centre, where Mrs Edmondson was based with others, it found that that did not go up to senior management level. It did not agree with Mrs Edmondson's assertion of a management conspiracy of victimisation and bullying. It made a number of specific findings to support its refusal to accept Mrs Edmondson's case on that point.

It is clear from the terms of the Industrial Tribunal's written decision that the Industrial Tribunal clearly consider the whole matter in the round, as well as in some detail. The Industrial Tribunal very helpfully, in opening "summary reasons" to what we would consider a model written decision, full yet concise, declared:

"3 We reject the contention that management was orchestrating a campaign against the applicant, although we are firmly of the view that the working environment between the applicant and her immediate colleagues at the Didcot Health Centre was strained. This situation, however, had nothing to do with the management level of Mrs Dauncey and above.

4 We find the disciplinary sanctions imposed upon the applicant, namely the first written warning and the final written warning, were a reasonable response to the applicant's conduct having regard to the implications and potential serious consequences of a lack of application in matters relating to record keeping.

5 We find the decision by Caro Fickling to suspend the applicant prior to the second disciplinary hearing to be an unnecessary option. In our view, there was no reason why the applicant could not have remained at work while the investigation continued.

6 We found no other areas of the respondent's conduct towards the applicant of which we are critical save as to minor issues of procedure being the speed of convening the second disciplinary meeting and the non-furnishing of Nicola Farmer's letter. In any event we found the applicant was not disadvantaged by these matters which we regard as of little significance.

7 Whilst concluding that the respondent's decision to suspend was a strong sanction, of itself we do not consider this to be a significant breach of the applicant's contract of employment as undermining the implied term of trust and confidence between employer and employee. The applicant received her full entitlements during the suspension."

We have considered all Mr Edmondson's submissions on his wife's' behalf, presented as they have been with clarity and with admirable restraint in the circumstances in which he and Mrs Edmondson find themselves. He has referred us to various case authorities which we have not set out as they are all in fact illustrations of matters of well-established principle.

At the end of the day, it is our view that the Industrial Tribunal covered all the essential points and made decisions upon them which it was entitled to make on the evidence before it. It was entitled to find, as in effect it did, that such criticisms as it did make of the Trust's conduct or of the conduct of its employees or officers towards Mrs Edmondson, fell short of being significant breaches of Mrs Edmondson's contract of employment, and fell short of amounting to circumstances where Mrs Edmondson was entitled to terminate her contract of employment.

This Appeal Tribunal can only entertain appeals from the decisions of Industrial Tribunals on points of law. In our judgment, the Industrial Tribunal did not misdirect itself on any point of law. Findings of primary fact or conclusions reached on primary fact can only be challenged as errors of law if they are perverse, that is findings which no reasonable tribunal properly directed could make. We can see no such errors or perversity here. In our judgment, the Industrial Tribunal was justified in reaching its particular conclusions and making the ultimate decision which it did that Mrs Edmondson was not constructively dismissed on the evidence before it. It follows that this appeal must fail.