United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR JUSTICE KEENE: This is the preliminary hearing of this appeal to determine whether it raises a reasonably arguable point of law and should therefore be allowed to proceed to a full hearing. It is an employee's appeal against the dismissal of her complaint that she was constructively dismissed. Her complaint was dismissed by an Employment Tribunal sitting at Exeter. Its decision was entered on the Register on 28th February 2000.

1. The appellant had been employed as a Home Ownership Manager for the respondent Association from July 1995. She had a team working under her. She resigned in mid-July 1999 in circumstances to which we shall come, and argued that she had been constructively dismissed. The respondent denied that.
2. The respondent operated a system of annual appraisal of its employees and the appraisal of the appellant for the year-ended December 1998 was carried out by her line manager, Mrs Curry. The appraisal graded Mrs Taylor as P, standing for progressing. The appellant was upset at that and appealed but without success. She lodged a grievance in February 1999 but subsequently withdrew it.
3. Mrs Curry was replaced by a Mr Elliott in early 1999. He encouraged team members to approach him directly about any concerns which they might have. One of them, Mrs Reeves, a member of the appellant's team, did so, which annoyed the appellant. The tribunal found that the relationship between the appellant and Mr Elliott was not good. They concluded that there were differences between the two individuals' personalities and a difficult working relationship.
4. The appellant wanted Mr Elliott to get rid of Mrs Reeves and when he did not she wrote a personal letter to Mrs Reeves at her home address. The tribunal said of this letter:

"It criticised Mrs Reeves for having raised her concerns with Mr Elliott and implied, quite clearly in our view, that the future of Mrs Reeves' employment could be in doubt."

This led to complaints by Mr Elliott against the appellant whom the Group Director of Operations, Mr Withnall, decided should be the subject of disciplinary proceedings. The appellant was informed of this by letter dated 30th April 1999 and a date for the hearing was fixed, namely 20th May 1999. In fact, because the appellant was unwell, the disciplinary hearing was put back to 16th July 1999.

5. The charges against her were set out in a letter from Mr Elliott, also dated 30th April 1999. In the meantime, on 14th May the appellant lodged a grievance complaining that she was being treated improperly by Mr Elliott and that the respondent was failing to follow its own procedures. The respondent said that the grievance would be dealt with but only after the disciplinary proceedings had been finished.
6. The appellant complained about that to the Employment Tribunal, but the tribunal concluded that:

"… the respondent was entitled to take the view that the disciplinary proceedings, having already started, should be conducted properly and completed before the grievance was dealt with. The applicant should not be allowed effectively to derail the disciplinary proceedings by lodging a grievance. Provided that the respondent indicated that the grievance would properly be dealt with in due course of time, which it did, that in our view was satisfactory and reasonable."

Nothing now turns on that particular aspect of the case.

7. The disciplinary hearing duly took place on 16th July and was conducted by Mr Withnall. At the start of the hearing the appellant handed to the respondent a letter in a sealed envelope with instructions that it should not be opened for the time-being. The hearing was a lengthy one. At the conclusion of it Mr Withnall decided that on one of the charges laid against the appellant he wanted to make further investigations. Accordingly he reserved his decision on all the matters that he had to decide.
8. However, at the conclusion of the hearing and before those further investigations had been carried out, the appellant asked the respondent to open the letter than she had handed over. That letter was a letter of resignation. It is dated 16th July and it was addressed to the Head of Human Resources at the respondent and said:

"I refer to the last sentence in Mr Elliott's letter to me dated 30 April. Taken together they have effectively destroyed the trust which I expect to exist between myself and any of my managers."

The passage in the letter from Mr Elliott there referred to read as follows:

"As I had indicated it is my judgment that each of these issues detailed above constitutes misconduct within our procedures. Taken together they have effectively destroyed the trust which I expect to exist between myself and any of my managers."

Returning to the resignation letter written by the appellant, that continued:

"I believe this constitutes a fundamental breach of my contract. I have remained in my post until now in order to attend the disciplinary hearing to refute absolutely the trumped up charges against me and defend my professional representation."

And then a little later the letter continued:

"Sanctuary Housing has made my position intolerable. It would be impossible for me to return to my post whatever the outcome of the disciplinary hearing. I am therefore resigning and consider that I have been constructively dismissed."

9. Mr Withnall nonetheless went on to complete his investigations and to consider the charges. He found three of the four to be proved but concluded that while the appellant's conduct had been unsatisfactory it had not amounted to misconduct. He decided that the right penalty was a final written warning.
10. Before the tribunal the appellant complained that the respondent's whole course of conduct had been such as to undermine the relationship of trust and confidence which had to exist between an employer and an employee. She alleged that the respondent had broken the implied contractual term that neither party would do anything calculated or likely to destroy or seriously damage that relationship so that she was entitled to treat the contract as repudiated. She said that the final straw was the conduct of the disciplinary hearing.
11. The tribunal decided, as it expressly said, that it had to look at the whole history of the relationship. On the appraisal of the appellant it concluded:

"The respondent's failure to comply exactly with the timetable and the procedures laid down cannot be categorised as a fundamental breach of the contract of employment."

That is a reference to the procedures laid down for the appraisal of the appellant in which there had been some timetable slippage for reasons into which we need not go.

12. In respect of the incident involving Mrs Reeves, who gave evidence before the tribunal, the tribunal said that they found that in speaking to Mr Elliott, Mrs Reeves had been expressing genuine concerns and raising issues which she had felt it was proper for her to raise. The tribunal commented that it was not for Mr Elliott to dismiss those contentions and complaints from Mrs Reeves out of hand. It saw his response as being not unreasonable and it added:

"It seems to us that the applicant's real complaint is that Mr Elliott would not take her part in her dispute with Mrs Reeves and would not dismiss her at the applicant's behest."

13. At paragraphs 20 and 21 of its extended reasons the tribunal said this:

"20 When the matter became more serious with the sending of the applicant's letter of 19 April Mr Elliott took the course that he considered was appropriate which was the institution of disciplinary proceedings. It was not inappropriate in our view for Mr Elliott to have some regard to the previous disciplinary proceedings because there was a direct similarity between the misconduct that was alleged then and the misconduct that he was alleging on this occasion.

21 In summary, prior to the receipt of Mr Elliott's letter of 30 April 1999 nothing happened within the relationship between the applicant and the respondent which taken separately or taken together can properly be categorised as a fundamental breach of the employment contract."

The tribunal then turned to that letter of 30th April 1999 from Mr Elliott. It observed that it was important to note that the passage quoted earlier did not stand alone but followed a careful and detailed statement of the disciplinary charges that he intended to bring. The tribunal went on to say:

"Crucially, in our view, the letter indicates that these [the charges] would be dealt with by proper disciplinary procedures as laid down in the applicant's contract of employment. In our view the phraseology, which concludes that letter, was, in the circumstances, ill advised. But taken in its proper context which context included Mr Withnall's letter of the same date, it does not amount to a repudiation of the contract of employment. The applicant criticises Mr Elliott for having formed a view having prejudged the issue. However, it was not for him to decide these charges. That was a matter for Mr Withnall against whom so far as we know the applicant had hitherto had no cause for complaint."

Indeed, it concluded that Mr Withnall dealt fairly with the charges against the appellant and conducted a fair hearing.

14. Finally, the tribunal concluded at paragraphs 24 and 25 as follows:

"24 In the context of Mr Withnall's reserved decision the applicant invited the respondent to open her letter of resignation. We are unable to see the logic of what the applicant did at that point. She did not resign promptly on receipt of Mr Elliott's letter of 30 April. She waited some 2½ months. Then she waited until the end of what we have found was a reasonably and fairly conducted hearing. She resigned before she knew the outcome of that hearing. Looked at from the applicant's point of view, when the letter was opened, can she be said to have been acting in response to one or more acts which constituted a fundamental breach of her contract of employment? As we have said the point at which she resigned was at the conclusion of what we have found was a fairly conducted disciplinary hearing of which she did not know the result.

25 In our estimation the respondent's conduct of that hearing cannot be said to have amounted to a fundamental breach of contract. Nor can the respondent's conduct as we have outlined it, and taken as a whole, be said to have amounted to a repudiation of the applicant's contract of employment. In our estimation therefore, the applicant was not entitled to resign and her plea that she was constructively dismissed accordingly fails."

15. This morning Mrs Taylor, who has represented herself with some considerable competence, argues that the tribunal misdirected itself and arrived at a perverse decision. She puts forward four matters which she contends amount to arguable points of law justifying allowing this appeal to go to a full hearing.
16. First of all, she submits, the tribunal overlooked certain relevant matters. The first of those is that the procedures of the respondent as set out in the Staff Handbook formed part of her contract of employment. In addition, it is said by Mrs Taylor that the tribunal overlooked the drip-feed effect of several breaches leading to a decline in trust and confidence so as to produce a fundamental breach of contract. We will deal with that point first of all.
17. We cannot see that it is arguable that the tribunal overlooked the fact that the procedures in relation to appraisal formed part of the contract of employment. In its very careful decision the tribunal merely said that the departures from those procedures, particularly in relation to timetable, did not amount to a fundamental breach of contract. That in itself implies that they were aware of the fact that these were contractual terms because of their embodiment as part of the contract. It seems to us that they were well aware of that aspect and that they were entirely right in not regarding those breaches as amounting to a fundamental breach.
18. So far as the assertion that the tribunal overlooked the combined effect over a period of time of the effect of several breaches, that is a point which is wholly unarguable. The tribunal was at pains at several places in its decision to emphasise that it was seeking to look at the allegations of the appellant as a whole and at the whole course of events. It is enough for present purposes to refer simply to two paragraphs in the extended reasons. First of all at paragraph 18 the tribunal expressly said that "in view of the way the case has been presented we must look at the whole history of the relationship" and then again at paragraph 25, in their final conclusion, they stated, as we have indicated, that "taken as a whole" the respondent's conduct could not be said "to have amounted to a repudiation" of the contract of employment. We can find no arguable point of law therefore in this first matter which Mrs Taylor advances this morning.
19. Secondly, she challenges the tribunal's conclusion that she did not act in response to any fundamental breach of her contract because of the time which passed between the receipt of Mr Elliott's letter of 30th April and the point at which she resigned at the end of the disciplinary hearing. Mrs Taylor argues that after 30th April letter and until a few days before that disciplinary hearing, she was covered by medical certificates and was not in a fit state to be able to react one way or the other to the fundamental breach of her contract. She submits that she resigned as soon as she could and consequently did not affirm the contract.
20. What is clear to us from the facts of this case, as found by the Employment Tribunal, is that whatever was Mrs Taylor's medical condition between 30th April and 16th July, she proceeded on that day to take part in the disciplinary hearing, to wait through the whole of it until it was concluded and only then did she ask for her letter, which turned out to be a letter of resignation, to be opened. That, in itself, seems to us to indicate a much more considered continuation of her position as an employee of the Association, rather than a reaction at an appropriate time to any fundamental breach. But, in any event, even if there was any merit in this point, we cannot see that it would justify allowing this appeal to go to a full hearing. The tribunal also found that there was no fundamental breach of contract by the employer and in that situation it matters not whether the reaction by Mrs Taylor was prompt or not and whether she affirmed the contract or failed to affirm the contract. So long as that conclusion by the tribunal that there was no fundamental breach by the employer is not open to challenge, the point to which we have just referred can have no real force.
21. Thirdly, Mrs Taylor lays considerable emphasis on that phrase used by Mr Elliott at the very end of that letter of 30th April, to which we have referred earlier in this judgment. She argues that that clearly amounts to a fundamental breach of the contract because it was something which was calculated to destroy the relationship of trust and confidence between the employer and the employee.
22. The tribunal, as we have indicated, looked at that particular sentence in the context of the letter of 30th April as a whole. We too have examined it in that context. That letter was a lengthy one which began by indicating that Mr Elliott had a number of concerns which he regarded both separately and together as amounting to a prima facie case of serious misconduct. Pausing there, we emphasise those words, prima facie. That underlines the fact that this letter was intended to be presentation of a number of charges, effectively, being brought against Mrs Taylor. Those were charges which were going to be dealt with at a disciplinary hearing, as indeed the letter from Mr Elliott indicates. He himself refers to the fact that he was arranging for a disciplinary hearing to be conducted. That disciplinary hearing would be heard by someone other than Mr Elliott, as indeed proved to be the case. In that context, it does not seem to us that the use of that phraseology at the end of that letter was to be taken as a final indication by the respondent that the relationship of trust between employer and employee had broken down. It was an assertion which was going to be explored at the disciplinary hearing. That was the context in which the Employment Tribunal treated it. In our judgment, it was open to them to construe it in that way. We can find no arguable point of law in that contention.
23. Finally, there are two procedural matters to which the appellant refers in seeking to establish that the proceedings before the Employment Tribunal went wrong. First of all, it is said by Mrs Taylor that the respondents broke an order which had been made by the tribunal by producing a substantial bundle of documents on the evening before the hearing took place and a supplementary one on the day. She tells us that this made it difficult for her to handle the case. She acknowledges, however, that she was fairly familiar with the contents but, nonetheless, she contends that she was prejudiced thereby.
24. It is clear to us that the bundle which was produced was one with which she was going to be reasonably familiar, if only because much of the bundle consisted of letters which she herself had written. She was clearly very familiar with the detailed history of the events about which she was complaining. Mrs Taylor has confirmed to us in the course of argument this morning that she did not at any time ask the Employment Tribunal for more time in order to conduct her case. In those circumstances, we cannot see that the mere technical breach of the order can amount to anything in the conduct of these proceedings which vitiates the legitimacy of the conclusion at which the Employment Tribunal arrived. This was not an unfair hearing.
25. The second procedural point which is raised by the appellant is that a witness, Mrs Curry, was produced on the second day of the hearing, in respect of whom a witness statement had not been served in advance. Mrs Taylor tells us that she objected to that second witness, but she was offered and obtained an extra half hour to consider the witness statement. Nonetheless, she says, despite that additional time to read the witness statement from Mrs Curry, her cross-examination was less effective as a result.
26. The Employment Tribunal had a discretion as to how it conducted its proceedings. It of course was obliged to conduct them in a fair manner and a way that was conducive to justice. But we can see no reason to conclude that, in allowing that additional time to the appellant to consider the witness statement from Mrs Curry and then continuing with the proceedings, the tribunal wrongly exercised its discretion. We do not accept that there was any improper conduct of the hearing before the Employment Tribunal in this respect or, indeed, in any procedural respect.
27. Overall, the decision by the tribunal as spelt out in its extended reasons was a very careful and thorough one. It discloses, in our judgment, no arguable error of law and in those circumstances this appeal will be dismissed.