United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR AKHLAQ CHOUDHURY (of Counsel) Instructed by: A P Squires Abbey National Legal Services 301-349 Midsummer Boulevard Milton Keynes MK9 2JE


 


JUDGE D PUGSLEY: We have had the benefit of the tenacious advocacy of Counsel but he has failed to persuade us that despite the numerous grounds of appeal that there was any error of law on the issues which forms the subject matter of most of his skeleton argument and most of the grounds of appeal.

1. It cannot be too often stated that we are an Employment Appeal Tribunal, not an Employment Tribunal to hear re-arguments which were put before the Tribunal and failed. The copious grounds of appeal in essence raise the issue that it was not a breach of the term of mutual trust and confidence that the employer failed to ensure that the Applicant was not required to work with Mr Middleton, the person against whom she had made a complaint.
2. We have absolutely no doubt at all in our minds that Mr Choudhury was a forceful advocate, was equally forceful though described as sensitive in this Employment Tribunal case. We take up the picture at paragraph 17 of the decision, page 11 in the bundle.
3. Mr Choudhury who, if we may say so, presented the case on behalf of the Respondent in the most sensitive, censored and accurate way make clear in his submission that in order for her to succeed with her constructive dismissal claim, the Applicant will need to establish on the balance of probability she was justified in leaving on account of the Respondent's conduct and she did so tinuously. That conduct, Mr Choudhury emphasised, had to be serious enough to go to the root of the contract sufficiently to undermine it. The Respondent, he conceded, might have handled things differently and dealt with the matter in a better way, but at the end of the day it had done nothing which could in any way, shape or form be described as a breach or even a potential breach of contract. It has not done anything which could reasonably be interpreted as having destroyed the mutual trust which should exist between employer and employee. Unless the Applicant would prove that she would lose, said Mr Choudhury. Further, said Mr Choudhury, even if the Tribunal were to concede the Respondent breached the Applicant's contract, there was clear evidence to suggest that not only was the Applicant wholly aware that that might be the case during the early part of 1997, but also she did not see fit to do anything about it until July 1998. She therefore whatever else might be said left it too late.

(i) Mr Meldrum, on the other hand, submitted that the applicant had suffered considerable trauma as a result of being harassed and bullied at her workplace. Thereafter she had been treated insensitively and unreasonably in her efforts to get back to work with the respondent simply failing to understand the problem she had, a problem which was supported by the medical evidence. She had left it as long as she had because she wanted to explore every avenue to try and get the message across in her efforts to return to a job she had always enjoyed in the past. The respondent had ignored her plea for her second grievance to be dealt with. It had not been prepared to deal with that formally even though her grievance was about the way the respondent had originally handled the matter. It was not, as the respondent suggests, a repeat of the original complaint.

Having considered all the evidence carefully, we find as a fact that:

(ii) Mr Middleton bullied and harassed the applicant sufficient to have resulted in his receiving a written warning it would have been necessary to monitor him for a period to make sure he did not repeat his behaviour.

(iii) the applicant was told by Cara Bowden that Mr Middleton would be moved, the applicant having made clear to Miss Bowden that she was not prepared to return to work with or for Mr Middleton. We believe this was made clear when she first logdged her original grievance, accepting that such was not reduced to writing.

though the Applicant was told her grievance had been upheld, she was only told the "bare bones" and had no insight or input whatsoever into what had occurred in relation to Mr Middleton, i.e; how he had been dealt with.

The applicant was never told in clear terms that Cara Bowden had changed her mind about moving Mr Middleton and that it could not be done, and why that was so, though it was implicit in Cara Bowden's letter of 13 June 1997 that Mr Middleton was unlikely to be moved. Promptly and in response to that the applicant decided to lodge a grievance. We believe the Respondent failed properly to assimilate the contents of her letter and misread the situation by concluding that the applicant was merely trying to resurrect the original grievance.

4. Later on in the decision at paragraph 24 at the Tribunal say this:

She was bullied and harassed by her superior, Mr Middleton and though it may have been found appropriate to discipline him in the way he was, it was equally evident to us that his own line manager, Cara Bowden believed that what he had done was serious enough even, perhaps to merit his own dismissal. For it to be thought that the Applicant could readily and easily go back to work alongside the one who had bullied and harassed her or, worse still perhaps, have to take orders from him in future and at the same time be confident that she would not have her future career affected by, it would, we suggest, be naïve in the extreme.

5. So we totally reject Mr Choudhury's suggestion in this case the Tribunal was not entitled to come to view that there was a fundamental breach. Of course, no Employee can dictate that their grievance is met in the way they want or met at all. But on the particular facts of this case we consider the tribunal was perfectly entitled to come to a view they have but it was naïve in the extreme to expect the Applicant to go back and work with Mr Middleton. Having said that we do think there is an issue as to the circumstances in which it came about that the Respondent employee in response to this appeal actually did leave.

The Tribunal say this:-

We can accept the logic of Mr Choudhury's argument that the applicant appeared to have arrived at that view quite early on and that therefore she should not have delayed making her application.

6. The view the Tribunal was concerned with at that stage was a brick wall that the Applicant felt she was up against in that she was going to have to work with Mr Middleton. Although the Tribunal say we can accept the logic of Mr Choudhury's argument that the Applicant appears to have arrived at that view quite early and therefore should not have delayed in making her resignation there is an argument in our view as to whether the Tribunal have accepted the arguments of law in Mr Choudhury's argument that "you cannot stay too long". The Tribunal deal with the various matters that led the Applicant finally to resign and we think that the matters contained in paragraph 6.4 of the Grounds of Appeal are arguable. We therefore allow the matter to proceed only on the grounds of the appeal set out in 6.4 and the sequential sub paragraph. We allow a time estimate of half a day and we now send for the Chairman's notes. We designate this as Category C.