At the Tribunal | |
On 28 February 2003 | |
Before
THE HONOURABLE MR JUSTICE RIMER
MS P TATLOW
MRS R A VICKERS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MISS KATE GALLAFENT (of Counsel) Instructed By: Messrs Farrer & Co Solicitors 66 Lincoln Inn Field London WC2A 3LH |
For the Respondent | MISS JACQUELINE LULE (of Counsel) Instructed By: Employment Law (UK) Limited Second Floor 29 London Road Sevenoaks Kent TN13 1AR |
THE HONOURABLE MR JUSTICE RIMER
1. She had not properly carried out a stock check of Sofrapain bread.
2. She had not discharged her responsibility of appointing a supervisor at all times over the Grosvenor House site during her shifts.
3. She had made quite a serious error on the Safeway Hub paperwork, resulting in part of an important delivery not being made.
4. She had failed to pick up and correct errors on the paperwork supplied by Ferndale Limited and further errors made by RHM's distribution office.
5. Mr Slater, a forklift driver on Mrs King's shift, had raised with Mr Harris a number of grievances about conditions in the coldstore affecting his health.
6. Mr Sargison, a warehouseman, had been dismissed as a result of writing an offensive note on some RHM paperwork and that, although Mrs King knew of the note, she had done nothing about it.
7. She had failed to fill out daily shift monitor sheets and to supply them to Mr Harris promptly, and there was a large backlog he had not seen.
8. She had allowed a situation to develop in which there were insufficient store men trained in forklift driving, despite an earlier instruction to her to make sure such training was put in hand.
9. She had revealed to some of the workforce confidential matters discussed at meetings she had attended.
10. She lacked effort.
"I was until this weekend making good progress and was being weaned off my antidepressants, my solicitor should be sending you a report today, I trust you will reimburse me for the £25 fee."
The tribunal's decision
"95. Circumstances in which an employee is dismissed
(1) For the purposes of this Part an employee is dismissed by his employer if …
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."
"12. An employee is entitled to treat himself as constructively dismissed if an employer has been guilty of conduct which is a significant breach going to the root of the contract or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. In such circumstances, the employee is entitled to leave with or without notice, but that conduct in either case must be sufficiently serious to entitle him to leave at once. See Western Excavating (ECC) Ltd. v. Sharp [1978] IRLR 27. Further, in assessing whether or not there has been a breach of the implied obligation of mutual trust and confidence, it is the impact of the employer's behaviour on the employee that is significant. See Malik v. Bank of Credit and Commerce International SA [1997] IRLR 462. Further, a delay between the final act entitling an employee to treat himself or herself as constructively dismissed and the decision to terminate the contract of employment can extend over a period of time if the employee was suffering from mental illness during that period and that illness has been the cause or principal cause of that delay: Bashir v. Brillo Manufacturing Co [1979] IRLR 295."
"(1) The complaints against her dealt with in the disciplinary meeting on 21 December 1999 had not been fully investigated by Mr Harris. (They had only been partly investigated.)
(2) [Mrs King] had not been given adequate time to prepare her defence.
(3) [RHM] should have provided [Mrs King] with an agenda setting out the items to be discussed. This should have been provided in advance, together with copies of all relevant documentation.
(4) [Mrs King] was not allowed to question relevant witnesses as provided for by the applicable disciplinary procedure.
(5) It is clear from the transcript of the tape, that the telephone rang on very many occasions and was very loud and was so disruptive as to make it impossible for the disciplinary meeting to proceed in a proper and appropriate manner."
The appeal
"36. [RHM] has fundamentally breached my contract by failing to follow a proper procedure in its disciplinary process begun on 17th December. In breach of section 10 of the Employment Relations Act 1999 Mr Harris failed to invite [me] to bring a companion to the initial meeting. In the disciplinary meeting of 21st December Mr Harris was intimidating and unprofessional. In breach of 7.7 of its disciplinary procedure, [RHM] has failed to advise me of the nature of complaints against me. In addition complaints made against me were not substantive nor were they properly investigated prior to the meeting. Further [RHM] failed to supply me with a copy of either contemporaneous notes or summary notes taken at the meeting thus hindering my opportunity to appeal the decision.
37. Further, [RHM] has breached the implied and fundamental term of trust and confidence which exists in the contract. Mr Harris has subjected me to an unacceptable level of severe harassment over a period of time the effects of which were exacerbated by the failure of the Personnel Department to intervene or investigate complaints.
38. Further [RHM] has behaved unreasonably by insisting on contacting me directly following my absence from work, despite being advised on several occasions that I was depressed and anxious and that direct contact with [RHM] affected my health and exacerbated my condition."
"1. The letter dated 23 May upset me. I'd asked to be left alone. I was being harassed about seeing the company doctor. My GP advised me not to see the company doctor. I don't think the company doctor was qualified in that field.
2. I highlighted there had been no investigation. I had no faith in a fair hearing. It convinced me I could not go back. I didn't know why they wanted medical records.
3. The letter of 23 May prompted my resignation.
4. Up to 23 May I still wanted to go back."