United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR TOM WEISSELBERG OF COUNSEL INSTRUCTED BY: MESSRS WEDLAKE SAINT SOLICITORS 14 JOHN STREET LONDON WC1N 2EB


 


JUSTICE LINDSAY (PRESIDENT):

1. We have before us, by way of preliminary hearing, the appeal of NCH Action for Children, which we will call simply NCH, in the matter Miss A MacFarlane against NCH.
2. The decision of the Tribunal at London South, under the Chairmanship of Mrs J Gilbert, was as follows:-

"The unanimous decision of the Tribunal is that the Applicant was unfairly dismissed."

3. Given the view that we take of the matter, we do not to explain things very fully but the Employment Tribunal held that NCH was in breach of its own harassment procedure (see page 14 paragraph 8(ii) of our present set of papers), in breach in various respects, for example, in not investigating Miss MacFarlane's complaint as promptly as should have been done, in moving Miss MacFarlane by putting her on so called "gardening leave" and in not supplying notes of a meeting of 26^th October. All that was on or before the 27^th October, when Miss MacFarlane confirmed her resignation letter which she had written on 26^th October and, therefore, those matters, could, of course, be factors conducing to a constructive dismissal on 27^th October. There were then further events on 28^th October, but they cannot have been properly relied upon to support a constructive dismissal the day before.
4. So far as concerns breaches of the harassment procedure (and also running on into a different point), the Tribunal said this:-

"We find the Respondents were in breach of their procedure in failing to investigate as quickly as possible (para 3.2 of the Manager's guide) and in moving the complainant (i.e. by putting her on garden leave), so putting her at a disadvantage for having made a complaint (para 4.3). We find that the Applicant had made it plain that she was unable to continue working while subjected to continued harassment by Miss Reynolds but that Mr Barnes had failed to appreciate the importance of the Applicant attached to the issue of the removal of Miss Reynolds as her manager. He stated in a reply to a question put by the Tribunal that he had authority to do this without the consent of Kingston. We do not consider that the Applicant would have resigned had Miss Reynolds been removed as her line manager. Thus the Respondent's failures were fundamental breaches of the applicant's contract".

5. Now that important passage gives rise to two chief complaints on NCH's part by way of Mr Weisselberg who appears before us today. First of all, it is illogical, he says, to say that a breach was fundamental because without it there would have been no resignation. We agree. If that were the test of fundamentality, almost every breach could lead to a constructive dismissal. That is not the test of fundamentality and the word "thus" in that passage just read perhaps emphasises the falsity of the reasoning. That is one point. A second is that it cannot have been in breach of contract not to remove Miss Reynold's as Miss MacFarlane's line manager. It may have been a breach, as it was held to be, not promptly to have enquired into Miss MacFarlane's complaint of harassment. It may have been a breach to have failed to have taken steps to stop that harassment and there might be other breaches inherent in the story, but that there was no contractual term entitling Miss MacFarlane to have Miss Reynolds removed is plainly arguable. In so far as concerns breaches of express terms of contract, we do not regard it as unarguable, indeed, we regard it as arguable, that the Tribunal failed here adequately to work their way through the four conditions for constructive dismissal which are summarised in Harvey in the passage identified by Mr Weisselberg's skeleton, namely the passage at D403.
6. So far as concerns constructive dismissal and unfair dismissal in relation to breaches of implied terms, namely the implied term as to trust and confidence, there may be an arguable error of law here in that it is at least arguable that the Tribunal's view of the events of 28^th October may have been taken into account and have wrongly coloured the view of what had happened earlier and may have been taken into account as justifying a constructive dismissal on 27^th October.
7. Another point taken, although, this perhaps is more difficult for the Appellant to argue, is that the Tribunal does not seem to have addressed whether Miss MacFarlane had lost the ability to walk out, so to speak, on account of Miss Reynolds pressure upon her, by her returning to work on 28^th September.
8. At all events, having considered the skeleton, we see no point in the Notice of Appeal to be so obviously lacking in any prospect of success as to require it to be struck out from the Notice of Appeal, given that some parts of the Notice of Appeal are undoubtedly proper to go forward. Accordingly, we permit the whole Notice of Appeal to go to a full hearing; we will ask Mr Weisselberg as to the need, if any, for Chairman's notes and to provide us with a time estimate.