At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MR W MORRIS
MR P A L PARKER CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR DAVID BAIRD (of Counsel) Messrs Warren & Allen Solicitors 76 Bath Street Ilkeston Derbyshire DE7 8FE |
For the Respondents | MR ALISTAIR SMAIL (of Counsel) Nottinghamshire County Council Legal Services County Hall Westbridgeford Nottingham NG2 7QP |
JUDGE PETER CLARK: We have before us an appeal by Mrs Jean Harris, the applicant before the Nottingham Employment Tribunal on 10th January 2000, against that tribunal's finding that she was not constructively dismissed by her employer, the respondent County Council, and that consequently her complaint of unfair dismissal failed. That decision was promulgated with extended reasons on 27th January 2000. The respondent resists the appeal, advancing both additional and alternative grounds in support of the tribunal's finding.
Background
"I am told that if she does return to work she may be facing disciplinary action."
The Employment Tribunal decision
(1) what is the relevant contractual term. Here, the implied term of mutual trust and confidence, since explained and endorsed by the House of Lords in Malik v BCCI [1997] IRLR 462.
We would add that that broad implied term includes, among other things, a duty on the employer to give an employee reasonable support to enable him to carry out his job without disruption or harassment from fellow workers. Wigan Borough Council v Davies [1979] ICR 411 and a duty promptly to redress the employee's grievances. W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516.
(2) do the facts as found constitute a breach of the relevant contractual term?
(3) if so, is that breach fundamental or repudiatory, going to the root of the contract and thus entitling the employee to treat himself as discharged from further performance?
(4) if so, did the employee resign in response to that repudiatory breach and not for some other reason? See now Weathersfield v Sargent [1999] IRLR 94 CA.
(5) did the employee act promptly in leaving once he became aware of the breach or did he delay for any length of time such that he is to be taken to have waived the breach and affirmed the contract? See W E Cox Toner (International) Ltd v Crook [1981] ICR 823.
(1) that the relevant term was the implied term of mutual trust and confidence;
(2) that the respondent had breached that term continuously from March 1998 through until the appellant's resignation on 30th July 1999;
(3) that the breach was repudiatory;
(4) that the appellant left in response to that breach;
(5) that she delayed for so long that she should be taken to have waived the breach and affirmed the contract. On that ground her claim that she was constructively dismissed failed. She was not dismissed by the respondent.
The Appeal
"18. However, she put forward her claim on the basis of there being a continuous breach of that implied term of trust and confidence from March 1998 throughout and the fact is that she did not accept that repudiation until 30 July 1999. That was a prolonged delay. We could have accepted that during the period of temporary management, perhaps form March to December 1998, that she was waiting to see if measures could have been taken to have improved relationships within Dorkat View, or to take other steps such as re-deploying her elsewhere, or other measures that might have been open to the County Council. However, in our view once, Mrs Skinner had ascertained that those options of re-deployment and taking night duty were closed off, it was apparent to her that the only course ahead to her was going to be a return to Dorkat View. She continued throughout that period and also subsequently to do her work and to be paid and to act in accordance with the procedures of both existing and new which were being brought in to the management of the home. Moreover, she received a welfare visit from Mrs Skinner and later from a personnel officer, Joy Allan, and a referral to the County Council's occupational health service. In all of these ways, we find that she affirmed the contract of employment and did not accept repudiation by the County Council when it would have been reasonable for her to have done so even on the most favourable interpretation of the matter from her point of view. In other words, she affirmed the contract of employment."
(1) He submits that the breach as found by the tribunal was one which was incapable of affirmation. He submitted that it was analogous to a breach by the employer of his statutory health and safety obligations.
We accept that there is authority for the proposition that breach by an employer of his statutory obligations cannot be waived by the employee. See Reid v Camphill Engravers [1990] IRLR 268 EAT, Lord Mayfield MC presiding. However, that is not this case. No breach of statutory duty by the employer is here relied on. The breach is solely one of the implied term of mutual trust and confidence. Such a breach may be waived. We therefore reject this first ground.
(2) Next, he submits that the tribunal misunderstood the facts. In particular, when looking at the material delay, they failed to take into account the appellant's periods off sick between 22nd February and 27th March and finally from 28th May. That is now how we read paragraph 18. The tribunal found that the appellant continued in employment after, we infer on her own case, being told by Mrs Skinner on 22nd March that her wish for a transfer or change in hours of work would not be possible and subsequently, that is on 27th April returned to her work at the home.
(3) Finally he submits that the tribunal failed to rule on a submission made on her behalf, that the final straw leading to her resignation on 30th July was not simply the fact of disciplinary proceedings being threatened against her arising out of her letter to Mrs Chadwick, which the tribunal found did not constitute a breach of contract by the respondent, but also their breach of confidentiality in disclosing that possibility to Dr Dale, who in turn passed it on to Dr Clamp in his letter of 21st July.
There are a number of difficulties with that submission it seems to us. First, the respondent's solicitor has no recollection of that point being taken below. See Jones v Governing Body of Burdett Coutts School [1998] IRLR 521. Secondly, if it was taken, it was on the face of it unsupported by the appellant's own evidence – paragraphs 25-26 of her witness statement refer only to the fact of possible disciplinary proceedings against her as being the final straw leading to her resignation, as did her solicitor in the letter of resignation dated 30th July. Thirdly, and in any event, we can see no breach of confidence on the part of the respondent disclosing those possible disciplinary proceedings to their doctor, who in turn passed on that possibility to the appellant's own general practitioner, again in strict confidence.