United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P DOUGHTY (of Counsel) Instructed by: Messrs Knight & Co Solicitors 18 Romsey Road Eastleigh Hampshire SO50 2ZH
For the Respondent	MR P MARSHALL (of Counsel) Instructed by: Legal Services, Ceredigion County Council Neuadd Cygnor Ceredigion Penmorfa Aberaeron Ceredigion SA46 0PA

SUMMARY

Unfair Dismissal / Disability Discrimination

Applicant resigned (after a long period off sick) alleging constructive dismissal. – Reason for resignation was he had found better paid job elsewhere – no constructive dismissal – Applicant claimed disability discrimination because he was not paid full pay while off sick – This was not on the facts a 'reasonable adjustment'.


 


HIS HONOUR JUDGE J R REID QC

1. By a decision dated 12 December 2003 and sent to the parties on 15 December 2003 an Employment Tribunal held at Cardiff (chairman Mr P Davies) held that Mr Gowman had not been unfairly constructively dismissed by the Ceredigion County Council and that he had not been discriminated against by reason of his disability either by less favourable treatment or by failure to make reasonable adjustments. Against that decision he appeals. It had been accepted before the Employment Tribunal that the Applicant was disabled within the meaning of the Disability Discrimination Act 1995 from August or September 2001.
2. The facts as found by the Tribunal were as follows. When the Applicant commenced employment as a Quantity Surveying Technician in the Quantity Surveyors Section in the Property Division of the Council on 6 November 2000 there was a need for work to be undertaken on disabled facilities grants (DFGs). There was no specific reference to DFGs in his job description. The way the DFG system worked was this: when disabled adaptation works were required, local authority tenants would be asked by the Department of Environmental Services and Housing (DESH) to make an application for a disabled facilities grant. To assist them in making such applications they would be offered the opportunity to have the Department of Highways, Properties and Works to act as their agents. The grant applications would be prepared by either the Architects Section or the Quantity Surveyors Section of the Property Division depending on the nature of the application. Apart from the department acting as agents for disabled facilities grants on behalf of council tenants the department also had a role within the grants system at the request of DESH and the Quantity Surveyors Section would check building rates and quantities being claimed.
3. The Applicant had no induction course on health and safety and there was no system in place whereby persons such as the Applicant would routinely be checked formally about their knowledge of health and safety. However, Mr David Taylor, the Group Manager for property management and projects, had interviewed the Applicant and the Applicant had indicated that he was up to date with health and safety regulations. The Council, as the Tribunal found, reasonably concluded that the Applicant did not require any training in health and safety. The Applicant himself did not ask for any training in health and safety. As to personal protective equipment, in December 2000 the Applicant was supplied with equipment adequate to protect him from any risk. He was concerned mainly with DFGs which were small building works of a domestic nature.
4. The office in which the Applicant worked was a small office with a friendly environment. The Applicant at the commencement of his employment presented as a man used to dealing with multi-million pound contracts who regarded Ceredigion as something of a backwater. The Applicant attended the grants section of DESH in order to have the system explained to him and was shown disabled facility grant files which related to private tenants and freeholders which had been administered by Ceredigion Care and Repair, a public funded agency under the wing of Tai Cantref (a housing association). The Applicant got a good flavour of how the system operated and what DESH's requirements were.
5. The Welsh Office issued a circular being advice on the general framework of the new grants system under the Housing Renewal Grant (Prescribed Form and Particulars) Regulations 1996. In paragraph 7 under the sub-heading of 'Other Prescribed Particulars' it is said that "Although it is not a requirement, applicants are requested to supply copies of plans and the relevant planning permission and building regulation approval documents". In accordance with the Welsh Office guidance and with what was considered to be good practice by the Department so as to satisfy the housing authority that works were "necessary and appropriate" and "reasonable and practicable" the department would generally require provision of drawings in support of applications for grants. The practice of the Respondents regarding the administration of grants was found by the Employment Tribunal to be an entirely reasonable system and within the statutory framework and discretion given to them. It was not unlike what occurred in other local authorities. The plans would assist the department regarding the estimates and allow the officers better understanding of applications.
6. However, the Applicant started to process work without including plans. On 7 June 2001 Mr Gareth Evans of the Grants Unit e-mailed the Applicant about two applications, saying that these applications could not be processed until further information was received. There was also a reference to scaled plans for projects that required extensive works. This was to enable the Grants Unit to check the relevant quantities claimed to avoid any audit problems in the future. The response of the Applicant was that there was no legal requirement contained within the relevant Act for scaled plans and that previous applications without such had been approved by the Authority and therefore the precedent has been set. The Applicant said it was not in the best interests of the clients that the application process was unnecessarily prolonged by waiting for drawings and they were not necessary for construction or statutory purposes. The Applicant did not send plans which resulted in a further e-mail from Mr Evans on 30 July 2001 about one of the applications, Mr Tilley's, which resulted in the Applicant replying saying that the drawing was not required.
7. There was considerable concern about delays in the system of DFGs and costs incurred with them which led to an informal meeting on 14 August 2001 at which the question of plans was raised. It was made clear to the Applicant that plans were required even though they might not be scaled plans but sketch plans. It was agreed that sketch plans should accompany applications. On 29 August 2001 the Applicant sent an e-mail to Mrs McFee, a representative of the South Teifi Residents and Tenants Association (STRATA) referring to Mr Tilley's application and saying that it had been sent to the Department of Environmental Services and Housing for approval on 30 May 2001 but approval has not yet been forthcoming. Mrs Rees of the Respondents responded on 29 August saying that she was not happy with it because it did not give the whole story such as the request for drawings from the Department in June "which we have still not received". She copied that e-mail to persons responsible for the Applicant's work. Mr David Taylor, the Group Manager for project management projects within the Department of Highways, Properties and Works Grants, found a copy of Mrs Rees's e-mail when he arrived at work at about 9.00am on 30 August 2001.
8. On the morning of 30 August 2001 Mr Glyn Hughes sent to Mrs McFee an e-mail concerning Mr Tilley and the delays that had occurred indicating that the delays were to do with the Applicant not supplying information. It is clear that one of the Respondent's departments felt that the Applicant was unfairly blaming them for the delay in the case. In the absence of Mr Martin Severs, Mr Taylor wanted to speak to the Applicant. When the Applicant came into the office he did not take his coat off. He said he was going out, left the office but then returned very quickly. The Applicant picked up the e-mail and went around to Mr Taylor's office. The conversation between Mr Taylor and the Applicant was relatively brief. It was about the e-mail from Ann Rees and Mr Taylor indicated that recent e-mails seemed to suggest there was friction between the two departments which was delaying the disability facilities grant. Mr Taylor said that he did not wish a situation to develop whereby the Department could be seen as acting unprofessionally. This was interpreted by the Applicant as suggesting that he personally had sent an unprofessional e-mail. After the conversation he returned to his desk and was there for about five minutes. He then said that he was ill and going home. He left the office and did not return to work again.
9. On 6 September 2001 the Applicant sent an e-mail to Mr Rhodri Gwynn-Jones who was the director the Department of Highways, Properties and Works indicating he had a grievance. In that grievance the Applicant asserted that the incident with Mr Taylor was bullying and that he had lost the trust of his employer. He also raised a health and safety concern about an incident on a visit he made to Aberystwyth Castle on 20 April. The Applicant said that he was presently on sick leave certified by his GP as being due to stress.
10. Paragraph 1.2A it of the Respondents' grievance procedure states that the object of the grievance procedure is to provide a means for dealing promptly with any grievance which an employee may have in the course of, and connected with, his or her employment. Paragraph 1.3 provides that time limits are specified for the operation of each stage of the procedure. If a grievance is not dealt with by an appropriate manager within a specified time limit, the employee shall have the right to proceed to the next stage of the procedure. That is subject to paragraph 1.5 by which paragraph 1.3 does not apply if both management and the employee agree that in a particular instance the time limits should be extended. Paragraph 2.2. provides that the Supervisor, Line Manager or Section Head will attempt to resolve the complaint informally. "He or she shall enquire into the grievance and will discuss it with the complainant and will advise the complainant of his or her decision within seven working days after the complaint is received."
11. On 11 September 2001 Mr Morgan, Assistant Director (Buildings and Property), acknowledged receipt of the Applicant's grievance stating that he wished to try and resolve the matter informally and to arrange a meeting. Mr Morgan asked Mr Martin Severs to deal with the grant aspect and for Mr Taylor to deal with the safety issue within the group. On 17 September the Applicant acknowledged receipt of the letter from Mr Paul Morgan and also said that he had spoken to Mr Martin Severs who had told him that duties pertaining to DFGs were now being carried out by himself and Mr Andrew Ginn and that that would remain the way when the Applicant returned to his duties. The Applicant says that this distressed him immensely and he requested the reasons behind the decision to change his duties. His personal preference was to deal with matters formally. Mr Paul Morgan acknowledged receipt of the e-mail on 18 September 2001 and indicated that he was awaiting Mr David Taylor's response to the incident between the Applicant and Mr Taylor and that as far as the organisation of work in the Quantity Surveyors Section is concerned that was a matter for the Line Manager, Mr Martin Severs. Mr Morgan said that no doubt the Applicant would want to discuss that on his return. Mr Morgan also invited the Applicant to meet him on an informal basis. On 24 September Mr Morgan wrote to the Applicant enclosing a copy of Mr David Taylor's response. Mr Morgan said "It appears to me that this particular incident could have arisen due to the fact that both parties may have felt under some pressure at the time. If that is the case, it may be possible that it could be resolved without further recrimination".
12. On 1 October 2001 the Applicant told Mr Morgan that he could not let the matter rest and that the key point of his grievance is the unfair accusation that his actions were unprofessional had not been addressed. On 4 October 2001 Mr Morgan said that he did not intend to take any further action with regard to the incident with Mr Taylor and that if he wanted to take the matter further the Applicant should write to the Director of Highways, Property and Works and the Personnel Officer within seven working days of receipt of the letter. Regarding sickness and performance within the Quantity Surveyors Section those were matters to be addressed by Mr Severs in consultation with the Personnel Section. It was Mr Morgan's opinion that the matter had been resolved as far as he was concerned. On 12 October 2001 the Applicant wrote to Mr Rhodri Jones in which he says the main point of his grievance has not been addressed, namely that he was accused of being unprofessional. The Applicant says that he wished the matter to be dealt with but that he would be unable to enter into further correspondence until after 30 October 2001 due to previously arranged family commitments. Paragraph 3.3 of the grievance procedure provides that the Head of Department "will consider all of the matters raised by the complainant and will issue a written decision within seven working days of receipt of the written grievance". However, the Applicant had indicated that he would not be available until after the 30 October 2001 so Mr Jones replied saying that the Applicant should contact him when available towards the end of the month. On 4 November 2001 the Applicant said that he was now available to further the matter at Mr Jones's convenience. Mr Jones replied on 8 November saying that his movements had not enabled him to settle down to contact Mr Gowman prior to now but it would be of benefit if they could meet at a time and place convenient to the Applicant to discuss matters. On 13 November the Applicant telephoned one of Mr Jones's Personal Assistants saying that he would like to arrange a meeting, that he was off sick at the moment but that he was willing to come to the office or a home visit.
13. Paragraph 3.4 of the grievance procedure states that the Head of Department "may, following receipt of the written grievance, arrange a meeting at which all parties to the grievance will attend."
14. On 3 December 2001 there was an informal meeting between the Applicant and Mr Jones. Bullet points were made by Mr Jones which included a query about having a round table meeting. The Applicant was seeking acknowledgement of the disagreements over facts and an apology. After the meeting on 18 December the Applicant queried with Mr Jones whether Mr Jones was expecting any response or information. On 24 December 2001 Mr Jones contacted the Applicant to say he was asking the Applicant to consider attendance at a round table discussion with himself and Mr David Taylor. Mr Jones said he would be back in the office on 7 January 2002. On 7 January 2002 the Applicant sent an e-mail to Mr Jones saying that he would be happy to discuss his grievances with David Taylor in a round table fashion but he would wish to know of any change of position or heart with regard to the other parties concerning health and safety and his change of duties issue. If none was forthcoming, he could see little point in addressing this grievance whilst leaving the others outstanding. The Applicant says that he has been victimised and that he would be refraining from work for a further month from 6 January 2002 because of stress. On 10 January 2002 Mr Jones acknowledged receipt but said his commitments had not allowed him to devote time to the issues but he would endeavour to address them as soon as possible.
15. On 14 January 2002 the Applicant telephoned Mr Geraint Gibby, Assistant Personnel Officer, expressing dissatisfaction that his grievance submitted in September had not been concluded. He complained about the change of duties which he construed as victimisation. The Applicant said he was only receiving statutory sick pay and the lack of money was causing him stress. Mr Gibby said that he should write to the Personnel Officer stating his dissatisfaction and requesting that the matter be referred to the Council's Appeal Panel for consideration. On 17 January 2002 a Mr Mike Brown of NBA Safety and Training met Mr Taylor in Aberystwyth to consider the circumstances of the visit of the Applicant to the site of Aberystwyth Castle on 20 April 2001. This was an investigation into the incident and reporting procedures. Mr Jones had asked for the commissioning of this health and safety report in order to address one of the matters the Applicant was complaining about. However, Mr Jones did not tell the Applicant that he had commissioned the report and was awaiting a report at this time. On 28 January 2002 the Applicant complained of a failure to resolve his grievance in a timely fashion and in compliance with guidelines and said that a fair and reasonable time has been given to the Respondents to satisfactorily resolve the matter. Therefore, he asserted, he must consider himself to be "constructively dismissed" as of this date.
16. Under Stage 3 of the Grievance Procedure if a complaint is not resolved to the satisfaction of the employee at Stage 2 the grievance may be submitted in writing to the Personnel Officer and the Personnel Officer should arrange a meeting of the Appeals Panel to consider the grievance. The Appeals Panel should hear the grievance within 15 working days of the Personnel Officer receiving the grievance in writing. The Applicant did not exhaust the grievance procedure as set out in Stage 3 of the procedure.
17. On the 21 January 2002 the Applicant was offered the position of Quantity Surveyor/Estimator with a company called Blaze Construction Ltd after a meeting with them. The Applicant had previously worked with Mr Eugene Broderick who was a director. The starting salary was to be £37,000 per annum with a company car and health care. The letter of offer from Blaze Construction Ltd confirmed that the Applicant was available to commence work within seven days. The Applicant started on the Monday working for Blaze Construction Ltd. On 25 January 2002 the GP of the Applicant's wife indicated that she should retire on medical grounds. She did so at the end of February 2002.
18. A considerable number of points were taken on behalf of the Claimant. These related both to the findings on disability discrimination and the findings relating to constructive dismissal. We shall deal first with the arguments relating to disability discrimination. The Applicant's submissions dealt separately with the alleged failure to make reasonable adjustments and his allegation of direct discrimination.
19. On "reasonable adjustment" first it was asserted that the Tribunal had failed to deal with the Claimant's submission that the Respondent failed to make a reasonable adjustment by failing to implement its own sickness procedure in respect of the Claimant. The point was, it was said, referred to in the Claimant's written closing submissions to the Tribunal. In our view the Tribunal clearly took the view that this submission was misconceived. If the assertion was that the employer failed to implement its procedure, that might have been a basis for saying that there had been a breach of the implied obligation of trust and confidence, but it is difficult to see how the failure could be regarded as a failure to make a reasonable adjustment. In any event, it is clear that the Tribunal had before it medical evidence and plainly, with the benefit of hindsight, did not regard any such supposed adjustment as being required.
20. The next point raised was that the Tribunal erred in law by failing to apply the test set out under s.6(4) Disability Discrimination Act 1995 in deciding that the Respondent was not required by way of "reasonable adjustment" to continue paying the applicant full or half pay throughout his absence from work. It was common ground that that there was no contractual obligation on an employer to make such an adjustment. It was accepted by the Respondent at the hearing that it could (as all employers could) nevertheless have paid the Applicant full pay. The Tribunal however held that such an adjustment would not be reasonable.
21. The test to be applied is whether the adjustment is one which is reasonable in all the circumstances of the case: see s.6(1) off the Act. A major factor influencing the Tribunal's conclusion was causation whether "the disability [had] been caused by any actions of the employer". The Applicant's medical evidence was that only 40% of the Applicant's disability was due to work - and his "frustrations" at that - and the remaining 60% was nothing to do with the Respondent (namely concern over his wife's ill health and his drink problem). Additionally, the Tribunal rejected the Applicant's complaint that the Respondent had failed in its obligations as an employer towards the Applicant. This was something which the Tribunal must have taken into account in deciding that it would be unreasonable for an innocent employer to pay full pay to which an employee was not contractually entitled. The Tribunal also made reference to The Code of Practice and indicated it had paid particular attention to paragraphs 4.20 to 4.33. Bearing in mind that a Tribunal is not required to spell out in enormous detail all the factors it has taken into account, this was a sufficient indication of what the Tribunal was taking into account. In our judgment the Tribunal's reasoning shows no error of law. It applied the law correctly and reached a considered and unimpeachable conclusion on the facts.
22. The Tribunal did not consider separately whether the Applicant should have been paid half pay by way of adjustment. This point, which appears to have been mentioned almost in passing in final submissions, was clearly covered by the same reasoning as applied to non-contractual payment of full wages.
23. On behalf of the Applicant it was next submitted that the Tribunal was wrong in law to find that he "did not want to be referred to counselling at paragraph 63 [of the decision]". This is a misreading of the paragraph. The Tribunal held:

"We do not find that there was a reasonable adjustment to refer to counselling as it is clear that the Applicant wished matters to be resolved in the context of the grievance procedure."

The finding of fact was one that the Tribunal was entitled to make. The further finding was that in this context informing the Applicant of the possibility of counselling was not a reasonable adjustment. Assuming (but not deciding) that informing the Applicant of the counselling service could be regarded as an adjustment, the Tribunal was perfectly entitled to hold that it was not an appropriate adjustment in the circumstances of the case. The Tribunal were well aware that the Applicant had a drink problem and that his wife was ill, but against that background made the finding of fact which it did. The finding cannot be characterised as an error of law.

24. The fourth point taken for the Applicant was the Tribunal was wrong in law to find that a failure to inform him of the reasons for the change in job content was not in the category of reasonable adjustments. It was submitted that there are any number of ways in which a person can be informed that there job content is being substantially altered. For example, in order to inform a deaf person one might use a written instruction instead of a telephone call. Similarly, it was said, that if an employer is aware that someone is off work with stress the employer might adjust the timing or the means by which the employer communicates an instruction and to do so would be an adjustment. From that, it was submitted, it followed that the giving of reasons for a decision must fall into the category of adjustments as well and. the Tribunal did not go on to consider whether this was a reasonable adjustment.
25. The Tribunal's finding was that on 17 September 2001 the Applicant was told by Mr Severs "that duties pertaining to disabled facilities grants were now being carried out by himself and Mr. Andrew Ginn and that that would remain the way when the Applicant returned to his duties". The Tribunal found that the Applicant's contract of employment allowed this change of duties and that:

"Having regard to the job description and the lack of specific reference to DFGs we find that there was no breach of contract in the Respondent withdrawing the Applicant from undertaking such work. The contract did not specify that the Applicant had a right or expectation to continue doing simply this work."

The Tribunal also found that the Applicant was told that organisation within the Quantity Surveyor's Section was a matter for his line manager and he would no doubt wish to discuss it on his return to work. As the Applicant never returned to work, the opportunity never arose.

26. In our view the giving of reasons for a change in job content when the change is one which the employer is entitled to make is not properly described as an "adjustment" and the Tribunal was correct in its conclusion. Separate considerations may arise as to whether it can give rise to a breach of the obligation of trust and confidence, but that is not the issue here. Furthermore, even if the giving of reasons could amount to an adjustment, the opportunity to discuss the matter on the Applicant's return to work would have adequately fulfilled any obligation to make such an adjustment.
27. The fifth point taken was that the Tribunal was wrong in law "to have found that avoiding delays in the grievance procedure was not a reasonable adjustment". In fact the finding was "we do not find that the delay in the [grievance] procedure constituted a failure to make reasonable adjustments for the reasons set out above". Those reasons are clear from a reading of the entirety of the decision. The history of the grievance procedure, as set out above, shows a conscientious attempt by the Respondent to deal with the grievance in an effective manner, trying to arrange matters to coincide with the Applicant's movements and wishes. The decision of the Tribunal on this point was one they were well entitled to reach.
28. The final point taken by the Applicant on "reasonable adjustment" was that the fact that the Tribunal did not make appropriate findings in relation to adjustments made unsustainable the finding that the failure to make adjustments was not the cause of the Applicant terminating his employment. This argument is doubly flawed. First, the Tribunal was not in error in its findings on adjustments. Second the Tribunal found that the Applicant resigned for his own reasons. The Tribunal found:

"…that on the balance of probability the Applicant decided to resign and obtained much better paid work with a company that he had known in the past for reasons that are not causally related to any failures or perceived failures on the part of the Respondents in dealing with the grievance matters."

The underlying reason for his deciding to leave was that "he did not consider the Respondent's methodology of work corresponded with his own perceptions". He then only resigned after he had accepted a job in the private sector at almost double the pay he was receiving from the Respondent and with additional fringe benefits. He was still on sick leave when he gave his notice to expire on 28 January 2002, the day he was due to start (and was apparently fit enough to start) his new job.

29. On direct discrimination it was submitted that the Tribunal erred in law by failing to set out its reasoning in respect of why it made the finding that there was no direct discrimination. It was said that it was not sufficient to recite the legal test and say there was no less favourable treatment. We were shown a lengthy extract from the written skeleton argument submitted to the Tribunal and it was submitted that the various points there raised were not specifically dealt with and the Applicant could not tell why the submissions had been rejected.
30. In our view there is nothing in this complaint. In a disability discrimination case the question is whether there has been less favourable treatment "for a reason which relates to" the disability. This is a wider expression than "on the ground of". In this case the findings of fact made it clear that in the Tribunal's view the Applicant had not been treated less favourably for any reason which related to his disability nor was he placed in a position where he chose to resign for any reason which related to his disability. Further the Tribunal was not satisfied that, using a comparator who was well and at work, there was any less favourable treatment of the Applicant for a reason relating to his disability. The Applicant submitted that there were findings of fact which should have led the Tribunal to a different conclusion, but in essence the Applicant was asserting that he did not like the Tribunal's findings of fact which led to their conclusion on the law.
31. We turn now to the question of constructive dismissal. Counsel for the Applicant first submitted that the Tribunal erred in law by failing to find the Respondent's failure to follow its contractual grievance procedure amounted to a breach of contract. The Tribunal should not have had regard to the applicant's behaviour but that of the respondent when determining this issue. He referred to the statement of Judge Wakefield in Tolson v The Governing Body of Mixenden Community School EAT/0124/03 (unreported) at para 8.:

"The conduct to be considered when determining an issue as to constructive dismissal is that of the employer. An alleged failure by the employee, for example, regarding following or not following certain grievance procedures, cannot be relevant."

The Tribunal, it was submitted, did not concentrate on whether the failure to follow the procedure by the Respondent was a breach but on the fact that Mr Gowman had not completed the grievance procedure. The procedure was meant to provide for matters to be resolved "promptly" and the procedure provides for certain time limits. There were delays in the procedure, which were down to the Respondent. The Tribunal made findings of fact that the grievance has not been dealt with promptly and that time limits have been breached. This meant that there was a breach of Mr Gowman's contract: the only real question was whether the breach was fundamental.

32. In our judgment this argument is incorrect. The Tribunal correctly took the view that it had to look at the entire process which had not been completed. While the time limits were not strictly complied with, the non-compliance was down as much to Applicant as to the Respondent and it is clear that the Tribunal took the view that there was impliedly a consensual waiver of the time limits. It was not until shortly before he received his new job offer that he complained at the length of time the procedure was taking. As the Tribunal put it, the Applicant "was prepared to engage in that process". Even if it had been wrong in this there could have been no basis for asserting that the delay amounted to a fundamental breach of the contract. This is a case very different on its facts from Laneres v Marks & Spencer Ltd EAT/0033/03 (unreported) to which we were referred.
33. The next submission was that the Tribunal erred in law by failing to find that the removal of 50% of the Applicant's job function without any consultation was not a breach of contract. It was said that the Tribunal should have had regard to the Applicant's function and the picture as a whole rather than referring only to the specifics of his written contract. It also failed to take into account the way in which his duties were removed without consultation. The lack of reference to DFGs in the job description or for that matter to any specific tasks should have been only part of the consideration. He had spent half his time on DFGs since his arrival ten months before. He therefore could have had a legitimate expectation that this would continue. He also had a legitimate expectation that he would be consulted in respect of such a major change of duties.
34. In our judgment this argument is incorrect. The Applicant's job function was defined by his written contract. Within that contract work on DFGs was one of functions he was asked to undertake. He had been in post for a comparatively short while and whilst he had been in post there had been significant difficulties over the manner in which he carried out that function. It was well within the rights of the employer to alter tasks which the Applicant would be required to perform on his return from sick leave. This was not a case where an employee of for many years standing lost a significant part of his functions. There was no suggestion that there were not many other tasks which the Applicant could and would have been given if he had ever come back to work.
35. Counsel for the Applicant then submitted that the Tribunal failed to give any or any proper weight to the matters raised in relation to the allegation of breach of trust and confidence. His submission was that the "legal test" which is applied for a constructive dismissal case is "the effective cause" of the employee leaving. He reiterated his earlier points about the alteration in the Applicants tasks and the lack of reasons being given to him. To these points he added: (1) the assertion that the Council had failed to offer the Applicant training to do the DFG work when he was new to the job and did not know how DFGs worked: (2) putting the Applicant in an untenable financial position by failing to investigate his grievance and continue his pay; and (3) the Respondent's failure to give the Applicant a health and safety induction.
36. None of these points is of any substance. The new points add nothing. The Tribunal found facts which show that he was given adequate training as to the workings of DFGs. His problems seem to have emanated at least in part from his refusal to implement what he was asked in that he did not provide plans when dealing with applications. He was not placed in an "untenable financial situation" by any unilateral act of the Respondent. The Respondent paid him all he was entitled to and the delay in his grievance process was not as a result of any unjustified delay by the Respondent. So far as the lack of a health and safety induction was concerned, the Applicant had confirmed he had knowledge and considerable experience of health and safety, was not put at any risk by the lack of induction and seems not to have raised any point on it for a very considerable time after his arrival. All of these were matters which the Tribunal considered. It cannot be properly argued that the Tribunal did not give them adequate weight.
37. Finally it was argued that the Tribunal failed properly to apply the "last straw" test and that it should have held (taking all the various factors together) that there was a fundamental breach of the obligation of trust and confidence which had led to the Applicant leaving. In this regard we were referred to Woods v WM Car Services [1981] IRLR 347 at para 17. The first and most obvious difficulty that this argument ran into was the lack of earlier straws and the difficulty in identifying the last straw. Indeed despite counsel's valiant and skilful argument the only phrase relating to straws which came to our minds was "bricks without straw". The Tribunal was quite entitled to take the view that the effective cause of the Applicant's resignation was that he had found another, better paid job elsewhere.
38. In these circumstances we take the view that there is no basis for disturbing the decision of the Employment Tribunal and the appeal should be dismissed.
39. After preparation of this judgment we were informed that the Appellant wished to make further written submissions as to the effect of Nottingham County Council v Meikle [2004] EWVA Civ. 859 and Archibald v Fife Council [2004] UKHL 32. We have now received and considered those written submissions. They do not affect our judgment.