United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M WALKER (OF COUNSEL) (Instructed by) Messrs Catteralls Solicitors PO Box No 43 15 King Street Wakefield WF1 2SF
For the Respondent	MR J N GALBRAITH-MARTEN (OF COUNSEL) (Instructed by) Bupa Legal Dept BUPA House 15-19 Bloomsbury Way London WC1A 2BA


 


JUDGE PETER CLARK: This is an Appeal by the Applicant before the Leeds Employment Tribunal, Mrs Scott, against that Tribunal's decision promulgated with extended reasons on 26^th February 1998, dismissing her complaint of constructive unfair dismissal, brought against her former employer, the Respondent, Care First Health Care Limited.

The Facts

1. The Appellant commenced employment with the Respondent's predecessor, Takare Homes Limited, as administrator of the West Riding Home in July 1992. From 1995 onwards, her Area Manager was a Mr Whitaker. In 1996 a new matron, Mrs Hawkhead was appointed at the Home. The gravamen of her case was that over a period of time beginning in May 1996 Mr Whitaker had, in various instances, behaved towards her in such a way as to display "unprovoked vindictiveness and malice" towards her. Examples included:

i. Unwarranted criticism of her in an appraisal of her performance carried out in May 1996;

ii. Criticisms of her capability as a book-keeper and controller of money;

iii. Disciplinary proceedings in June 1996 over an alleged breach of confidentiality concerning a proposed change of contract for the provision of opticians services to the Home. A further charge that she had gone over Mr Whitaker's head to his superior, Mr Reed, was ultimately dropped.

iv. A complaint that the Appellant had breached security procedures by leaving the keys of the safe in the safe unattended. That incident led to a final warning.

2. Thereafter, from January 1997 the Appellant was off work due to serious illness. During her illness Mrs Hawkhead wrote to her on 7^th April 1997, asking her to attend a meeting at her office in order that she might be fully informed as to the progress of the Appellant's illness. The Appellant felt unable to attend such a meeting. She was then undergoing radiotherapy treatment for cancer. There was a further exchange of correspondence and the Tribunal described the letters written by Mrs Hawkhead as insensitive.
3. On 11^th July 1997 the Appellant made a formal grievance against Mr Whitaker. That grievance was investigated by Jane Ashcroft, the new Director of Personnel. Having done so, Mrs Ashcroft rejected the grievance and informed the Appellant of her decision by a letter dated 28^th August. The Appellant had earlier indicated, by letter to Mrs Hawkhead dated 22^nd July, that she would be fit to return to work on 1^st September. Instead, having received Mrs Ashcroft's letter dismissing her grievance she promptly resigned by letter dated 30^th August 1997. In that letter, she cited as her reasons for resigning, the fact that no decision had been made on an earlier request by her for discretionary sick pay and Mrs Ashcroft's condoning of Mr Whitaker's conduct in dismissing her grievance. She said that her position was intolerable.

The Employment Tribunal Decision

4. The Appellant was represented below by a solicitor, Mr Kaine. The Tribunal directed themselves as to the law in paragraph 16 of their Reasons in this way:

"This is an application brought pursuant to the Employment Rights Act 1996. The Applicant was complaining of unfair dismissal. The burden of proof rests firmly on the Applicant to show that she was dismissed and in this case, there was no concession by the Respondents that there was such a dismissal. This is the type of case commonly described as one of constructive dismissal and the law relating to constructive dismissal is set out most famously in the well-known case of Western Excavating -v- Sharp. In order to demonstrate constructive dismissal the Applicant must show that there has been a fundamental breach of her contract, to which she has responded by resigning within a reasonable time scale, following the breach. In a case where there is not one identifiable breach, the Applicant can instead point to a series of breaches or incidents, which taken together constitute a breach of contract, known colloquially as "the last straw doctrine". This is really one of those latter cases, in that the Applicant does not rely on a single incident, but points to a sustained campaign by Mr Whitaker, in the first place, followed up by behaviour by Mrs Hawkhead and Mrs Ashcroft, which compound and add to the difficulties.

5. Having considered the individual matters of complaint raised by the Appellant the Employment Tribunal concluded that none, individually, amounted to a breach of contract save one. That was in relation to the Respondent's failure to deal with the Appellant's enquiry about discretionary sick pay. However, they found that such breach was not so serious as to amount to a fundamental breach of contract. Further, at paragraph 24 of their Reasons they expressly found that the various criticisms and complaints amounted to a serious (sic), that is a series of breaches or incidents which taken together could not amount to a fundamental breach of contract. The claim was dismissed, the Employment Tribunal finding that there had been no constructive dismissal by the Respondent.

The Appeal

6. Mr Walker accepts that the relevant term of the contract considered by the Employment Tribunal was the implied term of mutual trust and confidence. He accepts that on the face of it the Employment Tribunal correctly directed themselves as to the "last straw doctrine" in paragraph 16 and answered the question there posed in favour of the Respondent at paragraph 24 of their Reasons. Further, he acknowledges that he cannot argue perversity. (See Woods -v- W M Car Services (Peterborough) Ltd [1982] IRC 693.)
7. What then is left in the Appeal? Mr Walker submits that in dealing with certain of the incidents raised by the Appellant, at paragraphs 17, 19, 21, 22 and 23 of the Reasons, the Employment Tribunal fell into error by first, focusing only on the intentions of Mr Whitaker (paragraphs 17 and 19), and secondly, in considering those incidents only as potential breaches of contract individually, rather than as part of an overall picture which would lead to the inevitable conclusion that the Appellant's trust and confidence in her employer had been fatally undermined.
8. We cannot accept those submissions for the reasons advanced by Mr Galbraith-Marten. It seems to us that the Employment Tribunal objectively tested the individual matters of complaint raised by the Appellant and in relation to Mr Whitaker's conduct towards her reached the firm conclusion at paragraph 23 that they could not share the Appellant's general attitude to Mr Whitaker's relationship with her, nor did they share her view that her position was untenable once her grievance was rejected by Mrs Ashcroft.
9. In all the circumstances, looking at the Employment Tribunal's reasons as a whole, we are quite satisfied that no error of law is made out. Our jurisdiction is limited to correcting errors of law and in these circumstances, this Appeal must be dismissed.