United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


JUDGE H WILSON

1. This is an appeal against a Decision by the Employment Tribunal sitting at Southampton on 28 January 2000 which dismissed the application by the proposed Appellant that she had been constructively dismissed.
2. The proposed Appellant is not present for her preliminary hearing today, but the Tribunal has received a letter dated 6 October 2000 in which she says that she will be unable to attend, due to unforeseen circumstances. The rest of the letter sets out her hope that the information previously supplied will enable a decision to be made and that The Human Rights Act will assist in full consideration being given.
3. We have therefore decided to consider the matter in light of the papers before us, which include the extended reasons for the Decision which were provided by the Tribunal, and the Notice of Appeal submitted by the Appellant and supported by a statement concerning the matters before the Tribunal.
4. The Employment Tribunal found the following: that the Appellant had worked a day shift and had requested to transfer to the night shift in February 1999 which was refused because she could not be so easily supervised and a counselling session was held with her.
5. A few days later, on 12 March, the Applicant injured her shoulder assisting a patient into bed. That injury led her to consult her General Practitioner, who gave her a medical note signing her off work. She was given a subsequent medical certificate for another six week period to the end of June, on which the general practitioner stated:-

"Can do work, but this must not involve any heavy lifting".

The Appellant had apparently told the Tribunal that the meeting with her doctor had included his telling her that that was the last certificate he would give her.

6. On 5 May, the Applicant had met the Matron, and the Tribunal found that the Applicant's evidence was that at that meeting she had requested a transfer to light duties. The Tribunal said it also accepted the evidence from the Matron that she recalled no request for light duties and thought that the Applicant was again requesting a transfer to night duties; the Tribunal said that it believed there was a misunderstanding between the Appellant and the Matron.
7. Subsequently the Appellant wrote to tender her resignation on the date when her last medical certificate would expire. The Tribunal found that she did this in the belief that her General Practitioner would not be willing to give her a further medical certificate. In the letter, she asserted that the Matron had refused a request for a transfer to light duties and the Matron responded to make it clear that she had never considered such a request. The Matron had also given evidence to the Tribunal that even if there had been consideration of a transfer to light duties, it would not have been possible, because all nursing duties potentially involve heavy lifting.
8. In paragraph 6 of its extended reasons the Tribunal summarised the submissions on behalf of the Respondent. These were that the Applicant had failed to show that she was dismissed and had failed to show any circumstances that could amount to a constructive dismissal. Alternatively, there had been some misunderstanding between the Matron and the Applicant which was not a fundamental breach of contract. From the evidence it had heard, the Tribunal concluded that the immediate cause of the Applicant's resignation was her very improbable suggestion that the doctor was refusing to give further medical certificates. It is very unlikely that any General Practitioner would refuse a medical certificate concerning the condition of a patient's health if the state of health and other circumstances justified the granting of further certificates.
9. The Tribunal found that there was no pressure from the Respondent on the Applicant to resign. The Tribunal went on to say:-

"(8) Taking account of all the evidence seen and heard, it is clear to the Tribunal that there was a misunderstanding between the Applicant and Ms Lim at the meeting on 5 May. ….This was a genuine misunderstanding for which the Respondents cannot in any way be criticised and there was therefore no breach of contract by the Respondents, including no breach of any implied term of mutual trust and confidence, or implied term to provide safe working conditions. Furthermore, the Respondents cannot be held responsible for the decision by the applicant's General Practitioner not to issue any further medical certificates to her. There being no breach of any express or implied contractual duty by the Respondents, the decision by the Applicant to resign does not come within the provisions of Section 95(1)(c) of the 1996 Act and the Applicant's claim for unfair dismissal fails".

10. The Tribunal today has considered the material set out by the proposed Appellant in her addendum to the Notice of Appeal and we conclude that, as she herself says on her form about a request for the Chairman's Notes, what she is asking for is a reconsideration of her evidence: that amounts to inviting us to embark upon a scrutiny of the findings of fact by the Employment Tribunal which it is not open to us to do.
11. Beyond that, the conclusions to which reference has been made, which were reached by the Employment Tribunal, on the facts which they found proved, were conclusions which were open to be reached by a reasonable Tribunal, properly directing itself in fact and law. There is, therefore, no ground upon which their findings can be interfered with, and because this proposed appeal has no prospect of success, if it is fully argued, it must be dismissed at this stage.