United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R TOONE (of Counsel) Instructed by: Mr A N Ross Messrs Malcolm Hawkins Ross & Co Solicitors PO Box 49 15 Yarm Lane Stockton-on-Tees TS18 3DR
For the Respondent	MR A D TWINEHAM (Solicitor) Messrs Jacksons Solicitors Innovation House Yarm Road Stockton-on-Tees TS18 3TN


 


JUDGE PETER CLARK: This is an appeal by the employer, Mitre Plastics Ltd ["the Company"] against a decision of the Newcastle-upon-Tyne Employment Tribunal, upholding the applicant employee, Mrs Tina Sullivan's complaint of unfair constructive dismissal. Additionally, the tribunal found provisionally that she had contributed to her dismissal to the extent of 50% and ordered the Company to pay to the applicant the equivalent of statutory sick pay for the period 3^rd-27^th September 1997, there having been an unauthorised deduction from her wages in that respect.

The tribunal heard evidence and submissions by the parties over two days on 13^th March and 9^th April 1998 and then spent two further days deliberating over the matter on 22^nd April and 29^th May 1998 before promulgating their reserved decision with extended reasons on 12^th June 1998.

Background

1. The Company manufactured plastic components. It had sites at Stockton and Darlington.
2. The applicant commenced her employment as an operator on 14^th August 1995. She was based at Stockton. Mr Gareth Thomas was then the Quality Engineer at Stockton. In January 1996 she was appointed to the post of van driver on Mr Thomas' recommendation. She made deliveries between the two sites.
3. The factory manager at Stockton was Mr Gray. The Company's project manager was Michael Breckon, who divided his time between the two factories. The managing director of the Company was his brother, Neil Breckon, who was based at Darlington.
4. It was the applicant's case that during her employment she was frequently abused verbally and bullied by Mr Thomas. Mr Thomas flatly denied those allegations.
5. On 2^nd September 1997 the applicant was asked by Mr Thomas, her manager, to take a component to Darlington. Michael Breckon heard that she had expressed loud complaints about Mr Thomas at the Darlington site. He asked Mr Gray to speak to the applicant and Mr Thomas.
6. Mr Gray called them both into his office. The applicant was distressed. She did not feel able to deal with the matter and left the Stockton factory without clocking off. On the following day her husband telephoned to say that she was unwell.
7. Michael Breckon was disappointed that Mr Gray had been unable to resolve the matter. He wrote to the applicant on 3^rd September suggesting a meeting.
8. Meanwhile, the applicant consulted her general practitioner who diagnosed her as suffering from stress. He prescribed medication and advised her to refrain her from work. Nevertheless, she attended a meeting, accompanied by her husband, with Michael Breckon on 5^th September.
9. At that meeting she handed Michael Breckon a letter raising a grievance, namely that over a period of time Mr Thomas had constantly bullied and sworn at her. She claimed that this had been brought to management's attention and nothing had been done. She attributed her sick absence to the conduct of Mr Thomas.
10. The tribunal quoted the words of Michael Breckon in evidence, that at the meeting he and the applicant were following different agendas. He wanted to investigate what had happened at the meeting on 2^nd September, she wanted to discuss Mr Thomas' behaviour. In these circumstances Michael Breckon terminated the meeting.
11. Michael Breckon told the tribunal that he "smelled a rat". He did not believe that the applicant was ill despite the receipt of medical certificates. No sick pay was received by the applicant.
12. Michael Breckon consulted ACAS and on 8^th September the applicant telephoned him. He said that he wanted another meeting. However his purpose in holding a meeting, so the tribunal found, was not to investigate her grievance. She did not feel sufficiently well to attend a meeting.
13. Michael Breckon wrote to the applicant on 16^th September, requesting a further meeting. On 22^nd September she wrote to him, stating that her doctor had advised against a meeting at that time. She asked him to look into the question of her sick pay and enclosed a further medical certificate.
14. On 24^th September the applicant wrote a letter of resignation to Michael Breckon in these terms:

"Dear Michael

It is with regret, and advice from my General Practitioner, that due to the intolerable position I have found myself in at my place of work due to the conduct of Mr Gareth Thomas, that as from Friday 26^th September 1997 I will be giving you 1 week in lieu of notice to terminate my employment with Mitre Plastics.

I would be there-fore grateful if you would forward my P.45. and any outstanding monies due to myself."

That letter was received by the Company on 26^th September.

15. On 6^th October she wrote again about her non-receipt of sick pay.
16. On 24^th October 1997 she presented an Originating Application to the Employment Tribunal. Her claims were resisted.

The tribunal decision

Unauthorised deductions from wages

17. The tribunal noted that the Company called no evidence to counter the applicant's certificated sick absence from 3^rd-26^th September. Accordingly they found that the failure to pay statutory sick pay for that period constituted unlawful deductions from her wages.

Unfair dismissal

18. The first issue was whether or not the applicant had been constructively dismissed under s. 95(1)(c) of the Employment Rights Act 1996. As to that issue the tribunal directed themselves as to the law in this way (reasons paragraphs 18-19):

(1) The onus lay on the applicant to show that there was a fundamental breach of contract on the part of the employer;

(2) that that breach caused her to resign;

(3) that she did not delay too long before resigning, thereby affirming the contract.

19. The tribunal referred to the implied term of mutual trust and confidence to be found in every contract of employment. See Mahmud v BCCI [1997] ICR 606. That encompassed an obligation on the employer not to harass or bully the employee and to protect her from such harassment and bullying. Further, they referred to the implied term that the employer will reasonably and promptly afford a reasonable opportunity to employees to obtain redress of any grievance they may have. See W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516; Waltons and Morse v Dorrington [1997] IRLR 488.
20. In the first ground of appeal, contained in the Notice of Appeal dated 22^nd July 1998, it was submitted that the tribunal had failed to apply the objective contractual test of whether there had been a repudiatory breach by employer. That ground is not pursued. There is, accordingly, no criticism made of the tribunal's self-direction in law.
21. Applying the law to the facts as found the tribunal reached the following conclusions on the issue of dismissal;

(1) The Company was not in breach of contract as a result of the relationship between the applicant and Mr Thomas. The applicant had not, prior to 5^th September, brought her complaint about Mr Thomas' behaviour to the Company's attention.

(2) The Company, through Michael Breckon, failed to investigate her grievance concerning Mr Thomas.

(3) Further, Michael Breckon refused to accept that the applicant was suffering from stress, despite the medical certificates submitted, and the Company refused to pay her sick pay.

22. The tribunal concluded that the attitude displayed by the Company under paragraphs (2) and (3) above amounted to a fundamental breach of contract causing the applicant to resign. She did so promptly, indeed, the tribunal thought it might be said that she did so too hastily.
23. As to fairness, it does not appear that any potentially fair reason for dismissal was advanced on behalf of the Company in the alternative to its case that there was no dismissal. In any event, the tribunal found that no reasonable employer would have dismissed in these circumstances. Accordingly, the dismissal was unfair.
24. Finally, the tribunal indicated its preliminary view that the applicant had contributed to her dismissal to the extent of 50%, in that her conduct at the meeting held on 2^nd and 5^th September 1997 gave the Company cause to believe that her real reason for being absent from work was a desire to leave employment that was not to her liking.

The Appeal

25. Having abandoned the first ground of appeal prior to the preliminary hearing in this case held on 20^th October 1998, Mr Toone advances two further grounds in support of the appeal.
26. The first is that the tribunal observation at paragraph 25 of their reasons that the applicant's behaviour at the Darlington factory and at the meetings held on 2^nd and 5^th September gave the Company cause to believe that her real reason for her absence from work was a desire to leave employment that was not to her liking, was inconsistent or incompatible with their earlier finding that the failure to pay statutory sick pay and the Company's view, through Michael Breckon, that she was not ill, contributed, along with the failure to address her grievance, to their conclusion that the Company was in fundamental breach of the implied contractual term of mutual trust and confidence, thus undermining that critical finding, which depended on all three factors.
27. We do not accept that submission.
28. First, the tribunal made clear that the views expressed in paragraph 25 were provisional. They had not heard argument on the issue of contribution, which remains to be fully argued at the remedies hearing, due to take place, we are told, next Monday, 14^th June. In these circumstances, we do not accept that the tribunal's observation in paragraph 25 represents a concluded finding.
29. Secondly, even if it did, we see no inconsistency in the tribunal's approach. There is no finding that the Company had any medical grounds for doubting that the applicant was indeed sick, as the medical certificates showed. No attempt had been made by the Company, despite communicating with the applicant between 5^th and 24^th September, to arrange for her to be examined by the Company doctor. She never was. Further, whilst such a course was quite legitimate, we can see no grounds for withholding statutory sick pay, in the light of those medical certificates, pending examination by the Company doctor. There is also no record of any of the Company's witnesses giving evidence to the effect that ACAS, whom the Company consulted, had advised that the withholding of statutory sick pay was permissible in these circumstances.
30. In short, we can see no basis for impugning the tribunal's findings in paragraph 24 of the reasons, whether on the basis of the provisional observations in paragraph 25 or otherwise.
31. The second ground advanced is that the tribunal's findings of fact contained in paragraph 9 of their reasons were unsupported by the evidence. At paragraph 9 the tribunal say this:

"The Tribunal is satisfied that the Applicant and Mr Thomas had a chequered relationship. At times it was cordial. We heard that Mr Thomas had recommended the Applicant for promotion; he had been a guest at her wedding and he had organised a collection for a present. At time, however, his language and attitude towards the Applicant could be unpleasant and harsh. The Applicant appeared to give as good as she got, but in reality, we are satisfied that she could become very upset by his behaviour. Mrs Sullivan confided in Mrs Keay and her husband but we do not think that her other work colleagues, including Mr Thomas himself, appreciated how hurt she felt."

32. Mr Toone submits that there was a complete conflict between the applicant and Mr Thomas in evidence as to their relationship. The tribunal was obliged on the facts of this case to prefer one version to the other. It did not do so. That led to irrational findings of fact.
33. Again, we disagree. It seems to us perfectly rational for the tribunal, faced with extreme positions taken by the main protagonists, to find that there was some truth and some hyperbole in both accounts. The picture which they formed from the evidence is set out at paragraph 9, and later at paragraph 23 of the reasons. Those findings, in our judgment, were plainly permissible on the evidence as a whole.
34. It follows that, having rejected the grounds advanced by Mr Toone in support of this appeal, it must be dismissed.