United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S GILL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE J McMULLEN QC:

1. This case is about constructive unfair dismissal. It is an appeal by the Applicant in proceedings against a decision of an Employment Tribunal sitting at Liverpool, Chairman Mr D. Reed, on 23 and 24 May 2002, promulgated with Extended Reasons on 27 June 2002. The parties were represented by solicitors. We will continue to refer to the parties as Applicant and Respondent.
2. The Applicant complained that she had been constructively unfairly dismissed. The Respondent contended there was no dismissal and at all stages it acted fairly. The essential issue before the Tribunal was to determine whether or not there had been a fundamental breach of contract. The Tribunal found that the Applicant was not dismissed.
3. The Applicant had been employed by the Respondent from 1996 until she resigned with effect from 20 April 2001. The Employment Tribunal considered the legal test which was to be applied to the examination of the issues. It is accepted by Mr Gill today appearing under the aegis of the ELAAS Scheme and with our gratitude, that the Tribunal correctly directed itself by reference to what would normally be described as constructive dismissal: see paragraph 45 of its Reasons. The issue was whether the resignation of the Applicant was in consequence of a fundamental breach of contract on the part of the Respondent.
4. The Respondent provides day and residential homes for adults who are blind. The Applicant was employed as the Manager of a particular unit within the Christopher Grange Centre, namely Vincent House. The Applicant had no complaint about her treatment by the Respondent until the summer of 1999. It was at that time that Sister Barbara Quilty became the new Manager at Christopher Grange. They did not get on.
5. The Tribunal examined a number of issues raised by the Applicant in her relationship with Sister Barbara. The criticisms were many and, as a result of what the Applicant contended was a failure by the Respondent to deal with the relationship, she was off work for a period of a month or so.
6. The Tribunal found, having looked at the catalogue of complaints made by the Applicant in her Originating Application, that there were elements in the Respondent's treatment of the Applicant which rendered the Respondent open to criticism. However, when it reviewed all of those matters it concluded that they did not amount to a breach of a fundamental term. The Tribunal extracted four and found that they represented only a small proportion of the complaints the Applicant had made against Sister Barbara. As to the bulk of the complaints, the Tribunal found that the Applicant was not subjected to improper treatment at all, as it put it. Thus, the Tribunal was left with the four matters which it held constituted criticism of the Respondent and it was then required to form a view as to whether there was, in those matters, a fundamental breach of contract.
7. The complaint by the Applicant is that the Tribunal failed to consider whether these constituted a concerted cumulative set of actions, and to assess them objectively. That is the first of two points made on the appeal. Four other points in the Notice of Appeal are not pursued by the Applicant today.
8. It is, therefore, not necessary for us to look in detail at the elements in each of the four complaints but simply to look at whether the Tribunal assessed objectively the impact of these on the Applicant. The Tribunal, in our judgment, did so. It said:

"We rejected the contention of Mrs Hendry that there had been a concerted campaign on the part of Sister Barbara to undermine her. What she considered improper behaviour had to a large extent, we believe, been the consequence of oversensitivity on her part or a failure to appreciate what level of input it was appropriate for Sister Barbara to make."

9. That, it seems to us, is a recognition by the Tribunal of the task upon which it was engaged, that is to look cumulatively and objectively at the actions for which the Respondent could be criticised. In our view, the Tribunal has made a judgment which was open to it on the evidence and there is no error of law.
10. The second point raised today appears in the Notice of Appeal as a criticism that the Tribunal failed to give weight to the Respondent's failure to follow the grievance procedure and to deal with her initial grievance within a reasonable timescale. The grievance was lodged in April 2000 and heard in December 2000.
11. It is true that the Tribunal, having looked at the grievance and recorded the progress of that grievance, does not make a specific finding in relation to that allegation. Nevertheless, the Tribunal does make a general conclusion which, in our judgment, covers its appreciation of the complaint the Applicant was making about failure to follow in time the grievance procedure. The Tribunal says:

"Our conclusion was therefore that there had not been a fundamental breach either of the implied term in relation to trust and confidence or indeed any other term within the contract of employment."

12. Mr Gill accepts that that is apt to cover the grievance procedure since it is, we are told, a contractual term that the grievance procedure be available and be followed in appropriate cases. So we conclude that the Tribunal had before it the Applicant's complaint about the grievance procedure and in that concluding paragraph of its Reasons has adjudged that there was no breach of contract in its failure to carry out the grievance procedure. In those circumstances, both grounds of appeal fail.