United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T PITT-PAYNE (of Counsel) Instructed by: Director of Legal & Democratic Services Blackburn with Darwen Borough Council Town Hall Blackburn Lancashire BB1 7DY
For the Respondent	MR C HUTCHINSON (of Counsel) Instructed by: Messrs Roscoes Solicitors 8 Waltons Parade Preston Lancashire PR1 3JX

SUMMARY

Unfair Dismissal

The ET did not err in upholding Claimant's complaint of constructive unfair dismissal when Respondent had failed to support Claimant after she complained of repeated bullying.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about bullying at the workplace leading to an employee's resignation found to be a constructive dismissal in the context of a newly introduced policy to deal with all matters of dignity at work. The judgment represents the views of all three members. We will refer to the parties as Claimant and Respondent in the language of the 2004 Regulations.

Introduction

2. It is an appeal by the Respondent in those proceedings against a Decision of an Employment Tribunal sitting at Manchester over three days, Chairman Mrs C Porter, registered with Extended Reasons on 5 April 2004. The parties were legally represented. The Claimant claimed constructive unfair dismissal. The Respondent contended it did not dismiss her. If it were wrong about that, it made no alternative case that there was a potentially fair reason or that it was fair to dismiss her.

The issues

3. The essential issue for the Tribunal to determine was whether there was a fundamental breach of contract as correctly defined by it (see para 5 below).
4. The Tribunal decided in the Claimant's favour. It then held that the dismissal was unfair, as no reason had been given by the Respondent. It later awarded £23,032 in compensation. The Respondent appeals against the liability, but not the compensation decision. Directions sending this appeal to a preliminary hearing were given in Chambers by His Honour Judge Peter Clark and to a full hearing at a preliminary hearing by Her Honour Judge Wakefield and members.

The legislation

5. The sole relevant provision of the legislation is the Employment Rights Act 1996 section 95(1)(c):

"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."

The Tribunal did not cite that section, but directed itself to the law in three paragraphs which are not in dispute and with which we agree:

"The Law

8. There is a dismissal when an employee terminates the contract of employment, without or without notice, in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct. In Western Excavating (ECC) Limited v Sharp [197811CR 221 the Court of Appeal ruled that the employer's conduct which gives rise to a constructive dismissal must involve a repudiatory breach of contract. If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. In order for a constructive dismissal claim to succeed it must be established that:-

i. There was a fundamental breach of contract on the part of the employer.

ii. The employer's breach caused the employee to resign.

iii. The employee did not delay too long before resigning.

The fundamental breach may be a breach of an express or implied term of the contract. In Wigan Borough Council v Davis [1979] ICR 411 EAT it was held that there was an implied term in an employee's contract that his employers would take such steps as were reasonable to support him in performing his duties free from harassment or disruption from colleagues. The law implies a term into all contracts of employment that employers and employees will not, without reasonable or proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties. it is the Tribunal's function to look at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it, Woods v WM Car Services (Peterborough) Limited [19B1] ICR 666.

9. Once it has been established that the employer has committed a repudiatory breach of contract, the employee must go on to show that he or she accepted the repudiation. An employee will be regarded as having accepted the employer's repudiation only if his or her resignation has been caused by the breach of contract in issue. The Tribunal must determine the effective cause of the resignation, Jones v F Sirl & Son (Furnishers) Limited [1997] IRLR 493 EA T.

10. If an employee waits too long after the employer's breach of contract before resigning, he or she may be taken to have affirmed the contract and therefore lose the right to claim constructive dismissal. Special circumstances may justify a delay in resigning."

The facts

6. The Respondent is a local authority in Lancashire. In 2002 it introduced a policy agreed with the relevant trade unions called 'Dignity at work, anti-bullying and harassment policy'. It began with a policy statement which indicated the support by the Council for the following among other principles: informal complaints will be dealt with in confidence to try and resolve the situation; all formal complaints will be investigated through the methods detailed in the document. It represents (if we may say so) a highly commendable approach by a responsible local authority in conjunction with its recognised trade unions to very real problems faced by people at work, not only victims of the alleged bullying, but also the alleged perpetrators, and is a sensitive and important development in the way in which these issues are handled.
7. The Claimant was employed at approximately £176 per week. The Tribunal made the following findings:

"7.1. The applicant commenced working for the respondent in 1996. She was employed as a lifeguard on a part-time basis, ultimately 30 hours per week, and at the relevant time spent part of her duties at Shadsworth Leisure Centre.

7.2. In 1999 the applicant started to complain to duty officers about being bullied by a work colleague, Bernadette Appleby, who also worked at Shadsworth Leisure Centre. The applicant complained that Bernadette Appleby used offensive language to describe the applicant, refused to undertake jobs with the applicant, failed to communicate with the applicant, and failed to make her aware of potential dangers in the pool area, and undid her jobs. No action was taken about these complaints. For a short period, at the applicant's request, one or more duty officers monitored the applicant's performance of her duties and were able to confirm that some of the applicant's completed tasks were being undone. Bernadette Appleby was spoken to about this informally. No further action was taken."

TYPIST TAKE IN THE ITALICISED PASSAGE PLS

The Tribunal accepted the Claimant's evidence. This is in accordance with a general approach to the Claimant's evidence which is preferred over that of Ms Bowden to whom we will turn in a moment. That is not a blanket acceptance, for it is given following, in each case, a detailed recitation of the competing issues and in our judgment, was a proper approach for the Tribunal to adopt. We will return again to that approach.

8. The Claimant and in due course other employees made complaints. Because Bernadette Appleby objected to the approach being taken informally, at her request a formal investigation under the policy was set en train. Mr Fitzmaurice, the general manager of King Georges Hall in Blackburn conducted it. Employees were invited, including the Claimant. There was no specific investigation into any of the Claimant's complaints. The Claimant was identified to Bernadette Appleby as a complainant. Mr Fitzmaurice wrote a report. The report concluded as follows:

"7.10. "[Bernadette Appleby]'s attitude and behaviour does appear at times to undermine certain individuals whether that individuals whether that is intentional or not and therefore does have a negative impact but I cannot reach the conclusion that this is deliberate and I feel that she is genuinely unaware of the impact of this."

9. The report went on to the desk of Mr S Rigby, Director of Culture, Leisure and Sport. He regarded the matter as 'six of one and half dozen of the other', yet acknowledged that there were behavioural problems associated with Bernadette Appleby. Counselling was not offered to the Claimant or the complainants. Yet that was one of the recommendations. The Respondent did nothing thereafter to ensure that the bullying and the harassment of the Claimant stopped.
10. Pausing there to foreshadow a submission made by Mr Pitt-Payne of Counsel who appears today for the Respondent, that is a clear holding that there was belief in the form of the evidence given by the Claimant and accepted by the Tribunal, not only that there was bullying but harassment and not only at one time, but continuous. There then followed a further period after September 2002 which, for reasons which will become clear when we deal with
    Mr Pitt-Payne's primary submission, is a relevant dividing line. The Tribunal said this:

"7.15. After September 2002 the applicant continued to complain to her line manager, Ms Bowden, that her life at work had not improved. The applicant complained to Ms Bowden on a regular basis. The applicant's complaints were that the other lifeguards ignored her, refused to work with her, called her names, refused to give the applicant necessary information at shift changes, making the applicant's job more difficult, salt was put in her sandwiches making them inedible. Ms Bowden told the applicant that her complaints were petty and that she should await a more specific and serious episode before issuing any complaint. The applicant made Ms Bowden fully aware that since the Investigation she, the applicant, had suffered harassment in the form of isolation and name calling from Bernadette Appleby and her friends. The applicant made it clear that her problems and the bullying and harassment had worsened. Ms Bowden did nothing. No investigation was carried out.

[On this we prefer the evidence of the applicant.]

11. Again, we hold that the italicised comments by the Tribunal are acceptance of the Claimant's case, not simply the case that she made complaints, but the substance of the complaints. It is clear approval of the evidence which she gave in contrast to that of
    Ms Bowden and it will borne in mind that in that passage Ms Bowden is reported not as denying the complaints, but as attributing to them a lower degree of gravity than the Claimant did. On this dispute, as before, the Claimant's evidence was preferred.
12. By January 2003 the Claimant had continued to complain and yet nothing was done. An important passage occurs in the Tribunal's reasons which we will cite in full:

"7.16. At a meeting on 10 January 2003 the applicant, who was accompanied by her mother, told the respondent that the situation at work was causing her to suffer ill health, stress and anxiety, which was causing her long absences from work. Still nothing was done. That did not prompt any action at all by the respondent to review their findings made following the Investigation, to check whether Bernadette Appleby had improved her behaviour, to investigate whether any bullying or harassment had stopped.

[We do not accept Ms Bowden's evidence that she carried out an investigation by making observations herself and by speaking to members of staff. That evidence is not supported by Ms Bowden's own witness statement or by any documentary evidence produced to the tribunal. Ms Bowden referred to diary entries, but questioning by the Chairman revealed that no such diary entries were in the bundle, none had been disclosed. The respondent's representative asked if the panel wanted to examine the diary. The Chairman advised Mr Baird that it was for the respondent to decide what evidence to bring to the tribunal. If further relevant documentary evidence was available then the respondent should make application to submit it. No such application was made]."

No conclusion was reached and the Claimant was offered employment elsewhere, but only in a temporary capacity which she did not want. The Tribunal found that the Respondent laid any decision for further action at the feet of the Claimant and a letter was sent on 21 January indicating two approaches which could be made. Ms Appleby was never spoken to about the Claimant's new complaints. Her behaviour was not monitored. No response was obtained by Ms Bowden to the courses of action put to the Claimant on 21 January. No offer of a permanent move was made to her. A mentor was provided in the form of Mr Albino Ferro, but no instructions were given to him. There is then a finding as follows:

"7.22. Ms Bowden was fully aware that the applicant was experiencing extreme difficulty when she returned to work in January and February 2003. Ms Bowden had given the applicant her mobile phone number to allow the applicant to make her numerous complaints about the behaviour of her colleagues to Ms Bowden in private and with speed. The applicant continued to make her complaints of harassment to Duty Officers and Ms Bowden.

7.23. Mr Fitzmaurice and Mr Rigby were aware in January 2003 that the applicant had taken time off work due to anxiety and depression and that the applicant said that the harassment she was suffering at work was the cause of that sickness. No investigation of her complaints or her reason for sickness absence was carried out."

13. By 15 March 2003 a serious incident occurred which led to the disciplining of the Claimant. A conclusion was reached that the Claimant was paranoid and that was the reason for her complaints against Bernadette Appleby. No medical evidence supported that conclusion. The Claimant was suspended on full pay until further notice and never returned to work. A meeting was arranged ultimately on 25 July 2003 to discuss her absence by reason of ill health. At that time the Claimant brought in a letter indicating that she was going to resign and she gave notice of her resignation contending that she had felt that she had been put in an impossible position at work, since the Fitzmaurice inquiry concluded. On 12 August 2003 the Respondent accepted the Claimant's resignation, effective on that date.
14. In the light of those findings the Tribunal having addressed the relevant provisions of the law, made the following conclusions:

"Conclusions

11. In all these circumstances we are satisfied and find that the respondent committed a fundamental breach of contract in allowing and/or permitting the applicant to be subjected to bullying and harassment, by failing to take her complaints seriously, by failing to investigate the applicant's complaints adequately before September 2002 or at all after that date. After the Investigation the respondent was fully aware that the applicant and other employees were suffering from bullying and harassment as defined in the Dignity at Work Policy. 8 out of 20 employees had given similar examples of bullying and harassment. A number of employees identified Bernadette Appleby as the root of the problem. The respondent recognised that part of the problem stemmed from the attitude of Bernadette Appleby. After the Investigation the respondent took no steps at all to monitor whether the working environment for the applicant and other employees had improved, whether the bullying and harassment had stopped. A short meeting in September 2002 telling the employees to behave was not enough. After the Investigation the applicant made the respondent fully aware that the working environment had deteriorated and that she was suffering from bullying and harassment at the hands of Bernadette Appleby and her friends. The applicant reported her concerns and incidents to Duty Officers, who took no action, who did not take the applicant's complaints seriously. The applicant was told that her complaints were not serious enough: she should wait for something more serious to happen before reporting it. The respondent did not take reasonable steps to support the applicant in performing her duties free from harassment by colleagues. Something serious did happen: the incident between the applicant and Bernadette Appleby in March 2003. As part of the disciplinary procedure the applicant detailed her complaints of bullying and harassment at the hands of Bernadette Appleby and her friends: the respondent did not investigate them before concluding the disciplinary procedure. No steps were taken to assure the applicant that she would face a safe working environment on her return to work. The respondent breached the duty of mutual trust and confidence which must exist between employer and employee. The respondent committed a fundamental breach of contract entitling the applicant to resign.

12. The applicant did resign in response to that breach. The applicant did not delay too long in reaching decision to resign. She was suspended from work during the disciplinary procedure and thereafter was absent from work suffering further ill health."

The Respondent's case

15. Four broad submissions are made, three of which have been opened fully before us. First, the Tribunal was wrong not to consider the whole of the Claimant's conduct, but simply her complaints of bullying and harassment for it has to be recalled that the Claimant was off sick. She was supported by the Respondent for some considerable period during which the bullying and harassment was said to have occurred. Secondly, the Tribunal failed to make findings as to bullying and harassment which did occur. Thirdly, in the period after September 2002 the Tribunal's finding that there was no investigation cannot be sustained as against the policy of dignity at work which gave the option to the Claimant, as a measure of security to such persons, that they could use the informal or the formal procedures as they chose; the Claimant did neither.
16. Fourthly, as to the investigation prior to September 2002, the Tribunal failed to give reasons for its conclusions which we have cited from the first sentence of paragraph 11. While not specifically addressed and not dealing specifically with the clear findings of fact by the Tribunal, a subsidiary criticism is made of the timing of the action taken by the Claimant in response to what was said to be the repudiatory breach. As Mr Pitt-Payne put it, the heart of his case and of most importance to his client is the approach of the Employment Tribunal to the dignity at work policy. The purpose of this policy is to hold the balance between various actors in a workplace drama and to treat the matters with care. The Tribunal failed to consider the policy and its relationship to the finding that there was no investigation thereafter. The Respondent could not be criticised for failing to put in place the procedure when not so activated by the Claimant. It was accepted in debate that the policy does not displace the contractual obligation to support an employee and to investigate by reasonable steps complaints which are made: see Wigan Borough Council v Davis [1974] ICR 411 EAT. Yet, the policy shapes the content of the steps which are said to be reasonable.
17. It was also contended that the sickness absence of the Claimant must be taken into account. Unfair criticisms were made of the inquiry conducted by Mr Fitzmaurice; for he asked open ended questions and the Tribunal had failed to make proper findings on the allegations of bullying. It was contended that if we were with Mr Pitt-Payne on the post-September 2002 finding by the Tribunal, the three remaining factors in the Tribunal's holding that there was a fundamental breach did not amount to such a breach. He accepted that his principal submission to us was that if we detected an error of law we should ourselves make the decision, alternatively the matter should be remitted. At the most, the events in 2002 could be described only as background to what occurred in July 2003 and substantially weaken the impact of that event.

The Claimant's case

18. On behalf of the Claimant it is contended that the Tribunal made positive findings in her favour indicating that there was bullying and harassment. The Tribunal posed the correct test which is essentially that for an employer to fail to carry out appropriate steps is a breach of the implied term to support the employee. The Tribunal had in mind the evasive and inconsistent responses in the evidence of Ms Bowden and upheld the Claimant's evidence, making it unnecessary point by point to decide and resolve disputes between them. It was submitted that the passages we have cited above from its reasons (paragraphs 7.2 and 7.15) are classic examples of bullying and harassment at the workplace which was still going on throughout the period covered by paragraph 7.15. These all support the submission by Mr Hutchinson, appearing on behalf of the Claimant, that the Respondent unlawfully failed to support the Claimant.

Conclusions

19. Applying the legal principles which have cited above from the Employment Tribunal, we reject the arguments of the Respondent and have decided that the appeal should be dismissed. We will uphold the arguments of Mr Hutchinson.
20. We will deal first with the criticism of the post-September 2002 investigation. It is of course true that where a policy is in place dealing in a bespoke way with a particular issue at work, and all the more so when agreed by trade unions, it should be used. However, it does not displace the fundamental obligation to take reasonable steps to ensure that an employee is supported in times of difficulty.
21. Mr Pitt-Payne's submission that it is unfair on the Respondent for the Tribunal to have found that it failed to investigate matters after September 2002 is incorrect. Not every dispute has to be put into this dignity at work procedure and the best evidence of this is the contention by Ms Bowden, which was rejected by the Tribunal. It will be recalled that it was Ms Bowden's evidence that she did carry out an investigation after September 2002. The investigation took the form of making observations herself, speaking to members of staff, and the keeping of a diary. That, it seems to us is a proper response to be made by a relevant line manager to complaints made. It may or may not coincide with the steps to be taken in accordance with the dignity at work policy, but it must be borne in mind that was (as it were) the defence put forward by the Respondent to the claim that it had done nothing after September 2002. As it happens it was disbelieved, but there is clear evidence that there was a procedure outside the dignity at work policy which the Respondent felt it was reasonable to adopt in response to the Claimant's claims. Thus, having rejected the case that those steps were in fact taken, the Tribunal had an ample basis upon which to make its finding that there was a failure to investigate post-September 2002.
22. We then turn to the complaint that there is no finding as to the bullying and harassment. In our description of the facts of this case, we have pointed out what we regard as firm findings; we do not repeat them. This contention is misconceived. The Tribunal said it was making findings. It cited its general approach to the disputes in the evidence between the Claimant and the Respondent's witnesses. It upheld the evidence of the Claimant and in our judgment unambiguously upheld her complaints that nothing had been done when she put forward substantive complaints of bullying and harassment. We accept the submission of Mr Hutchinson that the description by the Tribunal given in paragraph 7.12 and 7.15 are indeed classic indicators of workplace bullying. This ground of appeal is dismissed.
23. We then turn to the juxtaposition between the dignity at work policy, or at least the appropriateness of the Respondent in response to such complaints, and the background of the Claimant's absence. In our judgment, an unfair criticism is made of the Employment Tribunal. It had well in mind the periods during which the Claimant was absent sick. She was no doubt in receipt of sick pay, but it must be borne in mind that the uncontested evidence was that this was stress related and to do with the harassment which she faced at work and could not tolerate. Thus, we consider this submission runs counter to the evidence which was before the Tribunal, the Tribunal had well in mind the effects of the bullying and harassment of the Claimant upon her health and it is hardly surprising that the Respondent acknowledged its duty to support her through payment of sick pay.
24. The final of the four major grounds of appeal relates to the investigation prior to September 2002 as to which the criticism is that the Tribunal failed to give reasons for this conclusion. In our judgment, that submission carries no weight, ample reasons are given for the inadequacy of the investigation. Mr Fitzmaurice having found that Bernadette Appleby's conduct undermined individuals and by implication the Claimant, the failure to do anything about this investigation constituted a valid criticism of the Respondent. This ground, too, is dismissed.
25. Although, as we have indicated, it did not occupy the centre stage of Mr Pitt-Payne's submissions, we deal with the criticism that he makes on behalf of his client that the Tribunal made no finding as to when the breach occurred. In our judgment, the breach continued at all times. There was a number of occasions when the Respondent did nothing and it could be said that the Claimant had put up with as much as she could. It might have been at the time of the later disciplinary action. Nevertheless, given that there was an ongoing failure to remedy the Claimant's complaints of bullying and harassment, it was open to her to resign on 25 July as she did. It must be borne in mind that there is no challenge to the finding that the Claimant resigned in response to the breach and did not delay. Those are findings of fact for the Tribunal and do not amount to a question of law.
26. We would very much like to thank Mr Pitt-Payne and Mr Hutchinson for their concise submissions and for completing the case within the time made available. We dismiss the appeal.

Appeal

27. An application has been made by Mr Pitt-Payne, without consultation with his clients but, as he engagingly put it, just in case they would like to go to the Court of Appeal. Less engagingly he put forward no grounds upon which any legal argument would be raised. We will do the best we can and assume that everything we have said is wrong as a matter of law. We cannot agree with that proposition. We doubt whether the Court of Appeal paying attention as it clearly will to its judgment in Cook v Secretary of Sate [2002] 3 All ER 279 para 15 and 18, and by analogy to its approach to second appeals (now see Uphill v BRB), will wish to interfere with the judgment of the specialist tribunal now upheld on appeal by the specialist appellate tribunal. Permission is refused as the appeal stands no reasonable prospect of success and there is no compelling reason for it to be heard
28. Nevertheless, we thank Mr Pitt-Payne for his submission. He must make the lonely journey over the road without our blessing.