United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS J WATSON Representative Redress Bramble House Hook Nr Goole East Riding of Yorkshire


 


JUDGE McMULLEN QC

1. This is an appeal by the Applicant against the decision of an Employment Tribunal sitting in Manchester over three days in the summer of 2001, Chairman Mr J McMahon promulgated with Extended Reasons on 26 July 2001. The Applicant was represented there and here by Mrs Watson of Redress, The Bullied Teachers Support Network. The Respondent was represented by an in-house solicitor of Lancashire County Council. The Applicant claimed unfair dismissal, actual or constructive.
2. The issue before the Tribunal was to determine whether there had been either of those circumstances. The Tribunal decided that the Applicant was not dismissed, and dismissed the application. The Applicant appeals on four grounds set out in her Notice of Appeal elaborated in great detail in a written skeleton argument by Mrs Watson and in oral argument today. We are most grateful to Mrs Watson for the great care which she has given in the preparation of this case on behalf of her member. It is right for us to record that Mrs Watson has done everything she can to present the argument in a coherent way on behalf of the Applicant.
3. She told us today that these arguments are very similar to those which she had put before the Manchester Tribunal. The Applicant was employed as a school teacher at St Paul's Church of England Primary school in Nelson, Lancashire from January 1974 to 31 July 2000. She was a dedicated proficient teacher.
4. On 15 November 1999 she was absent from school until she attended an unplanned meeting on 6 December 1999. The absence was due to ill health. On that date she met the headmaster Mr Ingham. There was discussion between the two about her readiness to resume teaching. There was some criticism of the Applicant's performance. There was a suggestion that the Applicant was being dismissed and that she should go home if she were not fully recovered. There was a dispute between the two as to what was precisely said at that meeting. The Tribunal made findings upon it. Thereafter the Applicant quickly took advice first from an officer of the NUT and subsequently from Mrs Watson.
5. There was a meeting on 28 March 2000 when the Applicant and Mrs Watson met Mr Hewitt, personnel officer with Lancashire County Council and Mr Ingham attended. On 3 April 2000 Mr Hewitt wrote to the Applicant to confirm that the Applicant's post was still open for her to return to and that the school and the Local Authority would provide additional resources to facilitate her return to work if that was what was required on medical grounds. The Applicant felt aggrieved about the content of the letter since it contained no personal apology from Mr Ingham about the matters canvassed on 6 December, and mentioned nothing about early retirement which it is said had been a feature of the discussion on 28 March.
6. The Tribunal recorded that the grounds upon which the Applicant's case had been put fell into two parts. First, that the combination of Mr Ingham's words and actions on 6 December meant that he had dismissed her on that day. Secondly, those words and actions meant that she was suspended from work and thereafter her employer failed to give her reasonable support, failed to take appropriate action against Mr Ingham and failed properly to consider the option of early retirement. Those cumulative matters added up to a breach of the implied term of trust and confidence which gave her no alternative but to resign.
7. The stage was thus set for the Applicant's claim to be heard by the Tribunal. The Tribunal addressed itself specifically to section 95(1) of the Employment Rights Act which in shorthand is constructive dismissal. It also considered the leading authority Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 CA and extracted dicta from Lord Denning MR. The Tribunal recorded that it received oral evidence from three, and written evidence from two, witnesses including the Applicant on her side; and five on the Respondent's side.
8. It made the principal decision that the Applicant was not dismissed on 6 December 1999. The contention was that particular words used by Mr Ingham - that she should go home and not come back said within the context of comments critical of her performance - amounted to a dismissal. The Tribunal looked at the matter in the round and gave four reasons for rejecting that contention. These are:

a. her salary continued to be paid until July;

b. the letter sent by the Applicant on that very day 6 December 1999 does not claim dismissal or even suspension;

c. her letter of 22 March 2000 giving her initial instructions to Mrs Watson does not so claim and indeed records that her going home from school on 6 December was by agreement;

d. her Originating Application was not lodged until 11 August 2000 which as the Tribunal notes would have been outside the limitation period for presenting a claim in any event.

9. The Tribunal then went on to consider whether the second ground of complaint was made out, that is whether she was suspended on that date on an official basis. The Tribunal found not. There were no letters from the school indicating neither an official suspension nor even anything in the way of an unofficial suspension. The Tribunal paid particular attention to two matters of evidence. First was the Applicant's letter to which we have referred and from which the Tribunal extracted the following passage:

"Mr Ingham suggested and I agreed that as I felt it could not cope on my own I would return home and contact my doctor."

Secondly, Mr Woolley, the NUT officer's letter on 16 May 2000 records that he gained the impression from Mr Ingham that she would be welcome back at work when fit to return.

10. Mrs Watson has produced for us the original bundles she used before the Employment Tribunal and we have ourselves looked at those letters and the passages extracted from them. Mrs Watson accepts that the reference to contacting a doctor indicates a person's medical condition and that it might indicate a person was ill. In those circumstances in our judgment the Tribunal cannot be faulted in the conclusion that it makes that there was a perception in the mind of Mr Ingham that the Applicant may have been ill. That is relevant because the Tribunal makes a finding that it was not a breach of contract for a headmaster to bring to the notice of a teacher concern as to the teacher's performance nor to invite her to go home if he perceives her to be ill.
11. In our view there was material upon which that finding could be made and the Tribunal has specified the basis for the finding. No reasonably arguable points of law therefore arises.
12. The Tribunal went on to deal with the period of time between 6 December 1999 and late March 2000 and the Tribunal categorises this as an unnecessary lapse of time. The Applicant had received no indication of the rupture of the relationship from official sources and she continued to be paid. She had, Mrs Watson told us, formal terms and conditions indicating dismissal procedures, notice and so on. None of these appears to have been activated.
13. The Applicant was dismayed that Mr Ingham did not issue an apology at the end of March. The Tribunal makes the finding that this was not a breach of the contract of employment. It found that the two of them had differing views as to what occurred on that date. Mr Ingham felt he had done nothing wrong to warrant an apology and the Tribunal found that in such circumstances the Applicant did not have a contractual entitlement to an apology.
14. The Tribunal went on then to consider the content of Mr Hewitt's letter of 3 April and found that this did not amount to a breach of the contract of employment. Failure to mention a matter of early retirement could not in the Tribunal's view amount to a breach of contract. On the contrary the Tribunal found the letter was a sensitive and emollient attempt by Mr Hewitt to heal the rift between the Applicant and Mr Ingham and more importantly to encourage her to return to work.
15. The Tribunal thus rejected point by point each of the components in the claim of cumulative breach of contract. It addressed itself in formal terms to that very issue putting together the allegations of Mr Ingham's initial critical comments, failure to apologise, and failure to deal with early retirement and came overall to the conclusion that those matters did not amount to a breach of the contractual term of trust and confidence. In those circumstances the Tribunal dismissed the Originating Application.
16. It will be apparent from our review of the Tribunal's reasoning that there appeared to be justification for each of the findings, such justification being found on the face of the material the Tribunal has put in its Extended Reasons.
17. We accept Mrs Watson's point that there are certain contentions raised by the Applicant which are not expressly the subject of a finding. Nevertheless the Tribunal is not obliged to make a finding on every single point, but simply to make sufficient findings of fact so as to demonstrate that the conclusions upon which it has based its judgment are soundly grounded and to show to the parties that grounding and to illuminate any appeal. We are satisfied from the Extended Reasons that the Tribunal has done that. But we have with Mrs Watson's help gone further and reached back into the primary materials which she has put before us in order to form our view which is that the Tribunal had a basis upon which to come to the conclusions it did. It is not for us therefore to interfere with the primary finding and decision making of the Tribunal unless there is a demonstrable error of law. We found none in this case and we dismiss the Appeal.