United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR OLIVER HYAMS (of Counsel) Instructed By: Mrs J Watson Redress 'Bramble House' Mason Drive Hook Nr Goole East Riding of Yorkshire North Humberside DN14 5NE


 


JUDGE J BURKE QC:

1. This is the preliminary hearing of an appeal by Mrs Powell against the decision of the Employment Tribunal sitting at Birmingham, chaired by Mr McCarry and sent to the parties with extended reasons on 11 July 2002. By that decision the Tribunal dismissed her claim for unfair dismissal against her employers who were technically Warwickshire County Council, the First Respondents, but effectively the Second Respondents, the Governing Body of Ashlawn School.
2. Mrs Powell's claim was that she had been constructively dismissed as a result of the Respondents' repudiatory breach of the implied term of trust and confidence. There was no doubt that Mrs Powell who, to use a neutral word, left in December 1998, after 18 years in the Respondents' employment, for most of which she was a Clerical Assistant in the General Office of Ashlawn School, did so because she believed that her employers had behaved very unreasonably towards her. The school is a large co-educational comprehensive school in Rugby. The issue for the Tribunal was whether the employers were guilty of a repudiatory breach of the contract; and no doubt, if so the Tribunal would have gone on to consider any issues of fairness.
3. Mrs Powell's case was that the employers, in particular in the person of the Headmaster, Mr Rossborough, had acted in an unreasonable and overbearing manner towards her for some time before matters took a serious turn in the middle of 1997. In support of her case as to the employer's attitude towards employees, in particular Mr Rossborough's attitude, she or her representative at the Tribunal adduced a great deal of evidence as to what had passed between Mr Rossborough and, to a lesser extent, other senior teachers and other employees going back over many years. The Tribunal heard evidence from both sides on those matters which went some way to explain why the hearing took well over three weeks of the Tribunal's time, distributed between 7 February 2000 and 16 May 2001, not including two days when the Tribunal considered their decision.
4. The immediate cause of Mrs Powell's leaving arose in 1997 when she and two other Clerical Assistants on Grade 1 sought re-grading. There were earlier complaints; but the Tribunal did not give them any weight. The employers refused the re-grading sought but decided that they would establish a new post in the General Office at the Grade 2 level, for which post some extra money would be available. Mrs Powell and her two colleagues were invited to apply for that new post. They were dismayed by this proposal which was potentially divisive as between them. None of the three applied for the post. There were protests: but the employers went ahead and appointed the only applicant, Mrs Morton, a younger employee. It was Mrs Powell's case that Mrs Morton was not up to the job. She made to the Tribunal numerous criticisms of Mrs Morton. By the summer of 1998 two of the three clerical assistants had gone; Mrs Powell was aggrieved about what had happened. She complained through an organisation which supports teachers and school staff who are bullied and oppressed, called "Redress". She was asked to deal with her complaint through the grievance procedure. She did not do so and resigned, citing the final attempt on behalf of the employers to suggest that she should use the grievance procedure on 2 November 1998 as the last straw on 11 November.
5. The Tribunal, having heard evidence and submissions for 16 days, produced a very lengthy detailed and reasoned Decision at the end of which they concluded that the employers had not committed any breach of Mrs Powell's contract of employment. In summary they found:

(1) That the history of clashes involving other employees at the school which was intended to establish, on Mrs Powell's behalf, that Mr Rossborough was "the primary contributor to a work environment that lacked respect and harmony" and, in less guarded words, "that Mr Rossborough was a bully and exerted unfair pressure on staff who had fallen out of his favour", demonstrated Mr Rossborough to be, as set out in paragraph 3.20, of the Decision, a man "who had high standards, which he sets for himself, for his school and others within it. Where those standards are met he considers it right to exhibit proper appreciation and is capable of great charm. On the other hand, he is unlikely to suffer fools gladly and once his mind is made up he would be a difficult man to deflect from his chosen course. He is tenacious in pursuit of what he thinks to be right". The Tribunal declined to find, in the case of other employees, whether Mr Rossborough crossed the line between good, firm management and bullying and harassment but were critical of some of the witnesses who gave evidence on behalf of Mrs Powell as to the background and history.

(2) The Tribunal found that while, between Mr Rossborough and Mrs Powell there may have been a lack of rapport, there was no antagonism and they had a functional, if not enthusiastic, working relationship.

(3) The Tribunal found that the refusal of the re-grading request was a reasonable one, reached in good faith.

(4) The establishment of the Scale 2 post in the General Office was genuinely and reasonably seen by the Governors as moving some way towards the requests of Mrs Powell and her colleagues for re-grading, allowing at least one of them to be upgraded, while improving the school administration.

(5) Mrs Powell and her two colleagues decided not to apply for that post and thus, when Mrs Morton, their junior in years of experience, did apply the opposition of Mrs Powell and her colleagues to such appointment was increased.

(6) Mrs Morton's appointment was a bona fide appointment of an applicant whom the management team felt suited to a position they wanted to see filled and felt would benefit the school.

(7) Mrs Powell's evidence that during this period Mr Rossborough behaved to her in a threatening and intrusive manner was rejected.

(8) Once Mrs Morton was appointed, the Tribunal found, Mrs Powell and her colleagues deliberately behaved in a provocative and uncooperative way towards her and never gave her a chance.

(9) There was an express finding that Mrs Powell and Mrs Halford adopted a "nasty, spiteful, rather childlike attitude towards Mrs Morton" presumably because she had applied for and been appointed to a position that they did not want to see filled.

(10) The responsibility for the poor atmosphere in the office lay overwhelmingly with Mrs Powell and Mrs Halford.

(11) There was no justification for Mrs Powell's case that management was unfairly tough and intimidatory in this period and, finally, when Mrs Powell herself through redress sought to complain about what had happened, she was several times and properly invited to use the grievance procedure which invitations were not responded to properly or at all and the employers in so requesting Mrs Powell and refusing to go down a route of some separate kind of unidentified procedure for the examination of Mrs Powell's complaints, had not behaved unreasonably.

That is only a very brief digest so as to show the map of this lengthy and detailed Decision as to the background to the points made, in relation to this appeal, to which we are about to turn.

6. Mr Hyams, on Mrs Powell's behalf, has put forward four grounds of appeal, set out in as an amended Notice of Appeal and elaborated in his Skeleton, and he has presented those grounds to us today with skill and courtesy.
7. The first ground relates to the final letter in the history written by Mr Hicks, the Chairman of the Governors Personnel Committee, which suggested, not for the first time, that if Mrs Powell wished to pursue her complaint she should pursue it through the grievance procedure. Mr Hicks did so at the request of Mr Moore, the Chair of the Governors. The Tribunal, at paragraph 6.4.7 of their Decision, expressly rejected Mrs Powell's contention that this letter was a breach of the term of trust and confidence because it was unlawful under the statutory requirements for him to deal alone, not as the Personnel Committee or the Governors but simply as the Chair of the Personnel Committee, with the matter referred to him by Mr Moore.
8. The Tribunal understood, correctly, that the argument being put to them was that Mr Hicks had made a decision, in relation to the handling of the complaint, and found that Mr Hicks had not done so; he was merely seeking to define a problem in order that he could properly formulate the question to be put before the Governors. The Tribunal said in terms "There was nothing 'decided' by Mr Hicks".
9. Mr Hyams has taken us to paragraph 12.1 of Schedule 14 to the Education Act 1996 which provides:

"The regulation of conduct and discipline in relation to the staff of the school, and any procedures for giving members of the staff opportunities for seeking redress of any grievances relating to their employment, shall be under the control of the governing body".

He accepts that what Mr Hicks did may well have not been outwith those words because he would have been acting under the control of the Governing Body but he puts forward that paragraph as an introduction to the principal point which relies on Regulation 25 of the Education (School Government) Regulations 1989. He submits, in reliance on those Regulations, that Mr Hicks made a decision, that Mr Hicks did not have the power to make that decision and that, if he did so, he was not acting lawfully or constitutionally and that, therefore, the Respondents cannot rely on his act. Mr Hyams relies on the decision of the Employment Appeal Tribunal in Atkin v Governors of the Grove Primary School (EAT/177/00) which is a case in which disciplinary panels which decided to impose discipline on the employee had not been properly constituted and in which, as a result, the Employment Appeal Tribunal took the view that there had been a defect in the procedure by which the decision to dismiss the employee had been reached.

10. We do not regard this point as giving rise to an arguable ground of appeal. It is not necessary for us to go into the law in any detail because Mr Hyams has very fairly accepted that his argument on the law has to be based on the premise that Mr Hicks made a decision. We do not take the view that it is arguable that the Tribunal was wrong in concluding that Mr Hicks made no decision. We have seen the letters. In her letter of 12 October Mrs Powell wrote to Mr Moore, the Chairman of the Governors, asking him to put her letter to the appropriate Committee of the Governing Body so that they could decide how her complaint could be investigated. Mr Moore responded that he would hand her letter to Mr Hicks. Mr Hicks then wrote on 2 November 1998, having recited some of the history, as follows:

"If you still consider that you have a complaint to be answered may I suggest that you pursue this through the individual procedure, details of which will readily be supplied by Mrs Morris, on request."

In our judgment the decision of the Tribunal as to what Mr Hicks was doing by that letter is unassailable; and if that is right, then this point, as Mr Hyams has accepted, falls to the ground. We do not need to go into any further detail, either on the facts or the law.

11. Secondly, Mr Hyams submits that Mr Hicks, in responding as he did to Mrs Powell's letter, must have consulted with Mr Rossborough, although he now adapts that to "must have consulted with Mr Rossborough and/or Mr Moore"; and since the complaint was about Mr Rossborough and about the way in which the employers had conducted themselves in relation to Mrs Powell, the Tribunal should have found that on that basis that was unfair and unreasonable and there was a breach in this respect of the implied term of trust and confidence. It is not at all clear that the case was put in that way to the Tribunal. Indeed, it looks from the Decision as though it probably was not; but we need say no more about it because, in relation to this ground 2, Mr Hyams accepted that the argument can only succeed if the letter which Mr Hicks wrote conveyed, or if Mr Hicks had made, a decision. It is the same point which, in our judgment, has proved a stumbling block to Mr Hyams' argument on the first ground; and we do not need to repeat our reasons why we regard the Tribunal's view of what Mr Hicks had done as unassailable. Thus, ground 2 fails and does not raise any arguable ground of appeal.
12. In ground 3 Mr Hyams submits that the Tribunal can be seen in its Decision to have looked at each individual act or omission of which Mrs Powell complained and decided, in the case of each, that each was not a breach of contract but had failed to look as the law, as set out in Lewis v Motorworld Garages Ltd [1986] ICR 157 which requires the Tribunal to consider whether all of the acts complained of cumulatively amounted to a breach of contract. There may be some doubt as to whether, where none of the acts complained of amounted individually to a breach of contract, all of them put together can be said to amount to a breach of contract or a fundamental breach of contract; but we will assume that point in Mr Hyams' favour. Having made that assumption, we do not read the decision here as one in which the Tribunal have made, or arguably made, the error of which Mr Hyams, on behalf of Mrs Powell, complains. The Tribunal directed themselves correctly as to the contractual test arising in Western Excavating (ECC) Ltd v Sharp [1978] QB 761; they directed themselves to consider "the last straw" doctrine for which Lewis v Motorworld Garages Limited was the principal authority, or one of the principal authorities. They plainly, if one reads the Decision as a whole, looked at the matter as whole, as well as looking at each act individually, and the Tribunal sums the position up in paragraph 6.5, where it says:

"Having regard to all the evidence which we have heard and to which we have been referred, our final analysis of this case is that we detect no breach of the applicant's contract of employment by the respondents."

In our judgment it is abundantly clear from the carefully worked out and analysed decision that the Tribunal applied the right approach and that it is not arguable that they did not do so.

13. Finally, in ground 4, Mr Hyams puts the matter in this way. He submits that the Tribunal acted wrongly in considering in relation to the creation of the new post at Scale 2 interposed between Mrs Powell's post and that of her former line Manager, whether it was reasonable for the employers to do so. In his Skeleton he says that this was a fundamental error of law because the proper test to apply, in a constructive dismissal claim such as this, is a contractual one, namely whether there was a fundamental breach or a repudiation of the Appellant's contact of employment and not the test of reasonableness which Mr Hyams suggests would only arise once the Tribunal had determined that there had been a constructive dismissal. We do not think this submission is arguable either. While it is convenient to refer to the implied term on which Mrs Powell relied as the implied term of trust and confidence, when fully set out and stated it is an implied term that the parties, including of course the employers, should not act without reasonable and proper cause so as to damage or break the trust and confidence which should normally exist between employer and employee: so states Harvey at paragraph A453 of Volume 1, deriving their proposition from the decision of the House of Lords in Malik v Bank of Credit & Commerce International [1997] IRLR 462; the point has been emphasised in other cases; and we suspect that Mr Hymans, in the course of the debate between himself and this Tribunal, really accepted that that was so. We see no arguable or detectable difference between reasonable and proper cause and reasonableness and we see no basis for arguing successfully that the Tribunal erred in looking at that part of Mrs Powell's case or, indeed, any other part of Mrs Powell's case on the basis of whether the employers had acted reasonably.
14. For those reasons, despite Mr Hymans able submissions, we are wholly clear that there is no arguable ground of appeal against this decision of the Tribunal and the appeal is therefore dismissed.