United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NIGEL BROCKLEY (of Counsel) Instructed by: Messrs J A Forrest & Co Solicitors 83 Buckingham Palace Road London SW1W 0QJ
For the Respondent	MR A FRAZER-URQUHART (of Counsel) Instructed by: Westminster City Council PO Box 240 Westminster City Hall 64 Victoria Street London SW1E 6QP


 


THE HONOURABLE MR JUSTICE WALL

1. This is Ms Grace France's appeal against the decision of the Employment Tribunal held at London (South) on 10 & 11 September 2001 with the decision being entered in the register and promulgated on 9 October. The unanimous decision of the Tribunal was that Ms France ("the Appellant") had not been unfairly constructively dismissed and her application for unfair dismissal was accordingly itself dismissed.
2. The Tribunal in its Extended Reasons covers the ground concisely and helpfully and it is we think perhaps easiest in large measure to take the facts from its decision. The Appellant was employed by the Respondent Council with effect from 27 February 1998. Her formal job title was Conference Organiser and, as she puts it, her duties and responsibilities covered co-ordinating child protection case conferences, which she was required to attend, where she took notes and compiled a report from the information shared, including further reports submitted by other professionals. She then produced the minutes of those meetings which would then be published to all the professionals involved in the case. As she puts it in her form IT1:

4 "It was essential that the reports were accurate, clear and legible. Further, the reports were often used, as evidence, where legal proceedings ensued."

3. Speaking as I do as a Family Division judge, I recognise the importance of the work that the Appellant was doing and there is no suggestion in any part of the papers that she did not do it properly and conscientiously.
4. The Appellant had, as we indicated a moment ago, a written contract which we have in our papers. Paragraph 4 of that written contract states that her initial place of work was to be 24 Greencoat Place "but the Council will be entitled to require you to work at any of the Council's establishments whether on a temporary or permanent basis."
5. Paragraph 17 of the contract provided:

17 "If you have a grievance relating to your employment (other than the grading of your post) you should discuss the matter with your immediate supervisor. If the matter is not settled at this level you may [pursue] it through the Council's grievance procedure, a copy of which is available for inspection from your Manager."

The contract was initially on a short-term basis and was regularly renewed. Each time it was renewed the same conditions applied.

6. The issue in this case arises because the Appellant developed a practice - in agreement with her employers - that in certain circumstances she could work at home. She had to travel a great deal in her work to case conferences in different locations. The Tribunal, in paragraph 12 of its reasons found that in about October 1998 she and her fellow case conference organiser Mrs McCaffrey agreed with their manager, Mr Moores, that where they were attending case conferences away from the office building they could go to the case conference venue straight from home if it was in the morning, or leave the case conference and return directly to their homes if it finished later in the day. It was agreed that time spent at home in this way could be used to carry out work.
7. The finding of the Tribunal was that Mr Moores agreed to this as a matter of administrative convenience and to assist the conference organisers who did a lot of travelling to case conferences. The main part of their duties was to arrange such conferences, ensure that the relevant parties were invited, attend to take minutes, circulate them and so on (as I have just indicated), but there were ancillary duties which involved normal office duties including answering telephones and filing. The Tribunal specifically rejected a contention put forward by the Appellant that she had requested to work at home because of the distracting noise in the Respondent's open plan office.
8. It is this agreement in relation to working at home that forms the pivotal part of this case, because the Appellant says, in a nutshell, that this was a specific term of her contract, albeit not one reduced to writing. She says it was accepted that it would not be necessary to reduce it to writing; but her case is that this was a specific term of her contract which, as we shall relate in a moment, her employer terminated, and by so doing broke the contract in a sufficiently serious way as to amount to constructive dismissal.
9. In relation to constructive dismissal, in broad terms, there have to be four elements. There has to be a breach of contract by the employer which can be either an actual breach or an anticipatory breach, and the breach must be sufficiently important to justify the employee resigning; or it can be one of the last of a series of incidents which justifies leaving. The two other conditions normally are that the employee must leave in response to the breach and not for some other unconnected reason, and, finally, the employee must not take too long about it. As the facts here demonstrate, if we get to the last two of those conditions they are met, because Ms France acted promptly.
10. But the crucial issue in this case - and the one which we have to decide whether or not the Tribunal got right - was whether or not there was a breach of contract by the employer. That critically depends upon whether the arrangement by which the Appellant was able to work at home was a term of her contract of employment as she asserts; or whether it was simply an informal arrangement, as the Respondents allege.
11. In paragraph 13 of their reasons the Tribunal continues in this way:

13 "The Tribunal noted that the Applicant did not ask for the arrangement with regard to working at home" to be put into writing as an amendment to her contract of employment. The Tribunal found the practice gradually developed, in the case of the Applicant to taking the occasional day at home to write up minutes of case conferences. The Tribunal found that it was not the intention of Mr Moores when he agreed the practice. However, he had been seconded to another post and Ms Corden took his place on a temporary basis from August 2000. As the conference organisers were often out of the office it was not until November that Ms Corden realised the Appellant, and to a much lesser degree Mrs McCaffrey, were spending odd days at home working.

14 Ms Corden decided to end the practice. She asked the Appellant's line manager, a Ms Dolor, to explain to the organisers her decision. Ms Dolor emailed the organisers with the news using the phrase "I have been instructed by Yolanda [Ms Corden] to inform you that the practice of working from home has now been stopped. If you have any concerns around this please feel free to discuss this with me". Ms Dolor explained the position to the Applicant before sending the email, and the Applicant was able to email Ms Corden on 1 December to express her concerns and ask if she would reconsider. She asked to have a meeting with her.

12. The Tribunal found specifically that Ms Corden's reasons for ending the practice were reasonable. She said that organisers should work as part of a team and be in the office to cover for each other, take telephone calls and so on. She did not feel it was appropriate to have confidential material at home and taking laptop computers home deprived other members of the team of their use. In addition she could see no need for members of the administrative staff to work at home (or any other members of staff) except in special circumstances.
13. The Tribunal then dealt with the question of a meeting between the Appellant and Ms Corden:

18 "The Tribunal found that Ms Corden sent the Applicant a memo dated 28 December 2000…setting out her reasons for her decision to stop the practice of working at home, and her reasons for wishing to meet with the Applicant without any representatives being present. The meeting on 5 January was to take place as scheduled. However, on that day, the Applicant resigned… The Applicant suggested that Ms Corden had attempted to unilaterally to her contract without her consent.

19 The Tribunal found that Ms Corden wrote to the Appellant on receipt of her resignation letter…expressing her disappointment and reiterating that she was still happy [that is, Ms Corden] to meet the Appellant. However, the Appellant decided to stand by her resignation.

14. The Tribunal made this significant finding, that:

20 "…before she resigned, the Appellant had received advice from her union representative, Mr Patel, that in order to pursue the matter he could, on her behalf, write to the Director of Social Services or, he would support her through the Respondent's Grievance Procedure."

15. We have a copy of that procedure. However, the Appellant had plainly lost all trust in the Respondents and said that she could not trust the Respondents to implement the procedure fairly. Despite this, the Tribunal found that the Appellant's position would have been safeguarded by the grievance procedure.
16. The Tribunal looked at the amount of time the Appellant had spent working at home. There were in the year of January to December 2000 altogether 21 days over that year when she worked at home and in some months she had not worked at home at all.
17. Significantly the Tribunal found that:

22 "…the Respondent had a specific home/teleworking policy [and the document in question was provided to us during the course of the hearing today]. The Tribunal found that the policy set out the procedure to be followed when an employee wished to carry out duties of their post at home. Attached to the policy was a model statement of additional particulars that would be necessary for the employee and the Respondent to confirm. There was also a form to be filled in as an expression of interest in home/teleworking and the Tribunal found that at no stage had the Appellant sought to make any agreement under this policy."

18. We take the view that this is a very detailed document which demonstrates clearly that when employees of the Respondents were asking to work at home they had to go through a particular and quite careful vetting procedure which ensured that all the criteria set out in the documents were met with.
19. It is reasonably clear to us from the Tribunal's reasons that the Appellant was aware of her contractual rights because there was correspondence relating to them in the documentation. We have to say, and we make the point at this stage, that the fact that the Appellant did not come within the criteria contained in the documentation for home/teleworking is, in our view, a significant factor. The argument put forward on her behalf today by Mr Brockley - that the fact that she was not within the home/teleworking procedure demonstrated the Respondents' failure to implement their own policy - is in our view unfounded.
20. The argument before the Tribunal as a matter of law was very simple from the Respondents' point of view. There simply was not a contractual term that entitled her to work at home. It was not a part of the contract. Therefore the Respondents were not in breach and therefore there was no claim for unfair dismissal.
21. On the other side, it was submitted that there had been a clear contractual term. The fact that it was not in writing did not matter (see Simmonds v Dowty Seals Ltd [1998] IRLR 211). The submission on the Appellant's behalf was that the test of whether the right to work at home was a fundamental term of the Appellant's contract was not the amount of time that she spent at home but whether the duties themselves were fundamental. It was submitted on her behalf that the preparation of minutes was a core part of the Appellant's work and that she had carried out that work at home over a period of years. Alternatively it was submitted that there had been a breach of the implied term as to trust and confidence.
22. The Tribunal accurately set out the law in relation to constructive dismissal by reference to Western Excavating (EEC) Ltd v Sharp [1978] ICR 221 and it reached its conclusions in the following paragraphs which we will read out:

38 "The Tribunal looked firstly at whether or not there had been a breach of an express term of the Applicant's contract.

39 Having found that there was an agreement between the Applicant and Mr Moores that she could work at home as a matter of convenience, when attending conferences away from the office either early in the day or late in the day, the Tribunal considered whether that agreement constituted a term of the Appellant's contract.

40 Having noted that all other terms and conditions were in writing and all amendments were put in writing, and having noted that other workers worked from home only on rare occasions with the consent of their line manager, the Tribunal concluded that there was no evidence to support the contention that the agreement constituted a contractual term. The Tribunal concluded that it was not a regular practice, that it had not been intended by management to be a regular practice and certainly not for the purposes of writing minutes, but was agreed simply for the convenience of the conference organisers who travelled extensively to attend conferences.

41 With regard to the provision of laptop computers, the Tribunal concluded that these were for the use of the team in general and did not indicate a commitment by the Respondent to home working in this case. The Tribunal concluded that another significant factor was that there was no agreement between the parties under the Respondent's Home Working Policy.

42 Therefore the Tribunal concluded that the consent given to work at home on occasions had not at the date of the resignation become a term of the Appellant's contract of employment and therefore, the Respondent was not in breach of such a term when that practice was stopped."

23. The Tribunal then went on to consider whether or not there had been a breach of the implied term and found that there had not, particularly relating in this aspect to the existence of the grievance procedure.
24. As is apparent from our summary of the Tribunal's approach, many of the issues which it had to resolve were pure issues of fact. Insofar as there was a dispute between the Appellant and the Respondents' witnesses, and insofar as it made findings there was plainly material for the Tribunal to make those findings and we could not even begin to interfere with them. In our view, the critical question, looking at the point purely from its contractual aspect must be: was the ability to work at home a term of the Appellant's contract?
25. It is plain to us that the Tribunal was fully entitled to reach the view it did that this was not a contractual term. It certainly cannot be said to be plainly wrong about it and, indeed, in our view on the contractual term argument, it seems to us that it was plainly right. The fact that there was a specific home/teleworking policy seems to us almost conclusive of itself against the Appellant's claim; and the finding of fact by the Tribunal that this was an arrangement of convenience designed to assist the Appellant in her travelling to conferences and was a matter of practice and usage only is unassailable.
26. If that were the only point in the appeal it would end, I think, then and there. But a second point is sought to be raised by counsel, Mr Brockley, on behalf of the Appellant. This needs to be examined in terms of the history of the case.
27. Mr Brockley opened the appeal by seeking permission to adduce fresh evidence comprising the Appellant's relevant diary entries. He said these were significant documents and we should see them. His difficulty in this regard was that the documents had clearly been available at the time of the hearing before the Tribunal but had not been placed before the Tribunal. The reason they were not so placed, in our view, was fatal to Mr Brockley's application that we should look at them. Because when the Appellant sought a review of the Tribunal decision this was put forward to the Chairman as one of the bases of the review:

5 "The Respondent proffered the diaries for 1999 and 2000 but claimed that the diary for 1998 was unavailable due to the office move. At the time, the Applicant wished to examine how busy the office was at the time of the working from home agreement. The Applicant judged that this point was not important enough to press for the production of the diary."

28. So the documents had been deliberately not placed before the Tribunal. The Tribunal had not had the opportunity to consider them. They did not form part of the Appellant's Notice of Appeal and in those circumstances it seemed to us quite impermissible to admit them as fresh evidence. The history we have outlined is enough of itself. But of course the rule in Ladd v Marshall makes it quite plain that they should not be allowed in, particularly since the Appellant had previously taken the view that their evidential value was sufficiently small for her not to have pressed for their production before the Tribunal itself.
29. The essence of the case in relation to the second limb of the argument put forward by Mr Brockley on behalf of the Appellant is stated in the Notice of Appeal in this way:

6 "The Tribunal erred by wrongly exercising its discretion in refusing a witness order for Patricia Dolor [the Applicant's Line Manager] despite the fact that she had made the allegation that she had been seriously pressurised to alter evidence. If heard and believed by the Tribunal these allegations could have affected the weight to be given to the whole of the Respondent's evidence. Ms Dolor could have given relevant evidence on the following findings:

(1) That the provision of laptop computers was for the use of the team in general and did not indicate a commitment by the Respondent to home working;

(2) That other workers worked from home only on rare occasions with the consent of their line managers;

(3) That the practice of working from home was historic and appeared to be accepted by management. Statements occurring in Ms Dolor's witness statement read by the Tribunal were given very little weight.

(4) That on the question of bullying by the Appellant's manager, rejected by the Tribunal in relation to one incident;

(5) On various assertions not noted in the Tribunal's decision but made in evidence and which may have prejudiced the Tribunal such as the home working was 'experimental' had been causing problems. That the Appellant had been inadequately supervised. That the Appellant's supervision and appraisals could not be relied upon. That the Appellant's Senior Manager, Ms Corden, had operated an open-door policy."

30. It seems reasonably clear that when the matter was being prepared for the Tribunal hearing Ms Dolor was reluctant to give evidence. We were taken by Mr Brockley through a series of emails, the detail of which we need not read. It appears that what happened, as is frequently the case, is that Ms Dolor prepared a statement which was then given to the local authority lawyers covering the questions which they asked her to cover.
31. It would seem that the local authority's lawyers asked for some alterations to be made in Ms Dolor's statement; and it equally appears Ms Dolor was unwilling to make those alterations, largely, it would seem, from what she says, if we can put if colloquially, that they appear to show her in a bad light. This got to the point when there was a series of quite energetic emails about the statement and the question of her giving evidence.
32. Quite what it was that was objected to by Ms Dolor in the altered drafts we do not know. But what we think we do know is that by the time the hearing on 3 July (which was initially meant to be the first hearing of the application before the Tribunal) Ms Dolor, as she said on 19 June, was feeling "victimised and harassed over the prospective Tribunal" and was saying that she would like to seek union advice over it as she was not prepared to change her original statement "that makes me look incompetent and highly inefficient". There then appears to have been an accusation that she may have communicated a copy of her statement to the Appellant's legal team; and generally speaking it would seem that she was a reluctant witness.
33. So when the matter got before the Tribunal but could not be heard on 3 July, an application was made for a witness summons to compel Ms Dolor's attendance. The way it was put was that the Respondents' defence to the application should be struck out and they should be debarred from defending the proceedings on the basis that the Respondents had put pressure on Ms Dolor to give a witness statement she did not want to give, and whilst it was accepted that the Applicant herself could call her as a witness, the application was for the Tribunal either to strike out the Respondents' case or to call her as a witness for the Respondent.
34. It was the Applicant's case that the Respondents had behaved scandalously by placing a stumbling block before the Tribunal be ensuring that the evidence the Tribunal heard was not the evidence which this particular witness wanted to give. The Respondents had now declared that it had no intention of calling Ms Dolor to give evidence, but if she was not called by the Respondents this would affect the Tribunal's ability to hold a fair hearing. The Respondents submitted that the Appellant's application was without foundation and should have been dismissed.
35. The view of the Tribunal Chairman, Ms Taylor, was this in paragraph 7:

7 "Having considered the Applicant's submissions it was the view of the Tribunal that there was no indication that what had happened during the preparation of Ms Dolor's statement constituted any cause for concern. It is routine for a witness statement drafted by the witness him/herself to be amended in accordance with the advice of an instructed solicitor or counsel. Therefore the Tribunal refuses the Applicant's application to strike out the Respondent's Notice of Appearance. It appears to the Tribunal that the Applicant is not at a disadvantage by the Respondent's decision not to call Ms Dolor because she had called Ms Dolor herself to give evidence at the full merits hearing. Nevertheless this is a very serious allegation and therefore leave is granted to the Applicant to renew the application to strike out the Notice of Appearance if Ms Dolor gives evidence of the alleged scandalous conduct at the full merits hearing."

36. At the outset of the application before the Tribunal in September, the Applicant renewed her application for a witness order to have Ms Dolor attend. The Tribunal recorded that originally such order had been granted but had been set aside by the Chairman who had heard the preliminary application on 3 July on the basis that, having received representations from both parties on the matter, the evidence of Ms Dolor was not necessary to dispose of the substantive issues of the case on their merits. In the alternative, the Applicant asked the Tribunal at the full merits hearing to read the witness statement previously prepared by Ms Dolor for the hearing scheduled on 3 July.
37. The Tribunal adjourned to consider the application and declined to make a witness order. The Tribunal considered the train of events since the hearing on 3 July, the correspondence and representations made and the reasons given by the Chairman then. These were endorsed by the Tribunal. "None of the points raised in support of the application for a witness order suggested that Ms Dolor would be able to address the substantive issues of the case. The Tribunal have had regard to Rule 10 of the Rules."
38. The Tribunal further considered that it would read Ms Dolor's witness statement. It was common practice for Tribunals to receive witness statements without the witnesses being present. The Tribunal proposed to follow that practice here on the usual basis that very little weight could be given to the contents of a statement unsupported by the presence of a witness.
39. So the Tribunal had before it Ms Dolor's statement. We have to say that the documentation before us is in a very sorry state. The bundle is extremely difficult to find one's way around, not least because it is not paginated, and a number of the documents appear to be drafts.
40. We have two statements from Ms Dolor in our papers, both of which appear to be in identical terms; and neither of which, we have to say, is essentially inconsistent with the case being put forward on the part of the Respondents. The only real hint (and it is no more, we think, than a hint) that one gets of any pressure on Ms Dolor - apart from the email - is an affidavit from Mr Anthony Harms who apparently represented the Appellant on 3 July, who had been told, he said, by Ms Dolor, that her Manager, Mr Moores, had come into the Applicant's waiting room and told her that she should be careful what she said. Ms Dolor had perceived that to be a threat. But that point, as we understand it, was not put to the Tribunal in the September hearing because the statement or affidavit from Mr Harms is dated 18 June.
41. The highest this can be put on the Appellant's behalf - namely that there was some "nobbling" (we use the colloquial phrase) of Ms Dolor, or impropriety by the Respondents in the conduct of the proceedings - is a paragraph in the Tribunal's reasons when the Tribunal declined to make a finding of fact on a particular issue. Mr Brockley points to this as an indication of a failure by the Tribunal to grasp the nettle, and argues that if it had found the particular fact in question in favour of the Appellant it might well have altered the focus which it otherwise gave to the Respondent's evidence.
42. The paragraph in question is paragraph 10.

10 "In addition, the Tribunal found that from 1 August 1998 the Applicant asked, and the Respondent agreed, to be allowed to work for four days a week instead of five. This reduction in hours was recorded in a letter dated 9 October 1998...The Applicant's revised annual leave entitlement was also set out in the letter. There was a dispute about the Applicant's reason for reducing her hours. The Respondent suggested she had told them that it was on financial grounds in relation to school fees, and the Applicant said it was to facilitate her studies. As this issue has no bearing on the matters before the Tribunal, and as both parties appear to be trying to assist rather than mislead the Tribunal, the Tribunal declines to make any findings on this dispute."

43. We cannot criticise the Tribunal at all for taking that view. In our judgment they were quite right to say that this was an irrelevant issue which went only to credibility and then we think only mildly to credibility. It is not difficult to see, given in the papers the Appellant's reaction to the suggestion that she was in some way seeking to lower her income in order to qualify for lower school fees, to notice that this was a sensitive issue for her.
44. In our judgment, the Tribunal here is doing nothing more than deciding not to make findings which might be hurtful either way when to do so was quite irrelevant to the issues it had to decide. We can find nothing else in the documentation to suggest that the witness was leant on in the way it is proposed. Her witness statement was before the Tribunal. Parts of it assisted the Appellant's case.
45. In our judgment, the attempt to build from so narrow and fragile a foundation a case effectively that this was a Respondent authority prepared to bend the rules in order to get its way by leaning on its witness in order to avoid embarrassing evidence, simply does not even begin to stand up. In our judgment, therefore, on the evidential foundation the Tribunal was on solid ground. This was: we have the written contract; we have the variation in the contract to reduce the working hours; and we have the home/teleworking documentation. If this had been a genuine term in the Appellant's contract it would, the Tribunal thought, have been in the home/teleworking documentation.
46. We are quite satisfied the Tribunal was entirely correct to find, as it did, that this was an informal, convenient arrangement which suited, for the time being, both the employer and the employee. But ultimately the contract makes it clear it is for the employer to say where the employee should work; that is what the contract makes clear.
47. In our judgment the employer in this case was fully entitled to say to the Appellant that this practice must stop and that she must henceforth work in the office. That was no breach of contract, let alone a fundamental breach. The Tribunal, in our judgment, reached the right decision and the appeal must inevitably be dismissed.