United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DANIEL STILITZ (of Counsel) Instructed by: Messrs Foot Anstey Sargent Solicitors 21 Derry's Close Plymouth Devon PL1 2SW
For the Respondent	MR JAMES HOLMES- MILNER (of Counsel) Instructed by: Messrs Bevans Solicitors Grove House Grove Road Redland Bristol BS6 6UL


 


SUMMARY

Unfair dismissal and Disability Discrimination

The Employment Tribunal held sports editor of regional paper constructively dismissed. Rejected his disability action claim. Appeal alleging perversity and error of law. Cross-appeal by employee. Held (1) no perversity; (2) matter to be referred to same Employment Tribunal: test of constructive dismissal misstated in decision; (3) cross-appeal dismissed

HIS HONOUR JUDGE REID QC

1. This is an appeal from the decision from an Employment Tribunal held at Bristol on the 7 and 8 June last of year. The decision is dated the 14 June, and was sent to the parties on the 15 June. By its decision, the Tribunal held that the claim of the Applicant below, Respondent and Cross Appellant here, Mr Beckett under The Disability Discrimination Act 1995 failed and was dismissed, but that he was constructively, and unfairly, dismissed by the Respondent below, the Appellant here. The question of remedies was then adjourned.
2. The background to the case is that for many years, Mr Beckett was employed by Bristol United Press as Sports Editor of 'The Western Daily Press'. There came a time when the fortunes of the paper appeared to be rather on the wane, and a new editor was appointed: Mr Terry Manners. After his appointment, Mr Beckett went off sick with stress in April 2003, and then having returned for only one session of work, went sick again in May 2003. In June 2003 he raised a grievance, under the company's internal grievance procedure, alleging that he had been undermined, marginalised and bullied by Mr Manners. That grievance came before Mr Manners for determination. Mr Manners rejected it. Mr Beckett appealed to Mr Lowe, the Editor of a sister paper 'The Evening Post', but that appeal was rejected by a letter dated 12 September.
3. Mr Beckett eventually resigned by letter dated 21 November. He had by that time been diagnosed as suffering from depression, and by the time of the hearing before the Tribunal, it was common ground that he was disabled. The Tribunal found that he had not been suffering from a disability before his second period of sick leave, which began on the 23 May 2003, and we think that the proper construction of the following sentence of the judgment is that the Tribunal was not satisfied on the balance of probabilities that he was actually disabled at the time of his grievance procedure.
4. The Tribunal rejected the claim for disability discrimination as I have said, and also rejected the bulk of the case that Mr Beckett put forward to support his claim for constructive dismissal. That case had been on the basis that, in effect, there had been a plot to get rid of him. However the Tribunal did find that there were certain matters which had occurred which did amount to repudiatory conduct by Bristol United Press, and that it was in consequence of that conduct he had resigned. They therefore found that he had been constructively dismissed. The three matters upon which the Tribunal relied as founding constructive dismissal were first, that the grievance procedure was such that it gave Mr Beckett good grounds for complaint, in that the person who handled the grievance procedure at first instance was the very person about whom all the complaints were made; second that the appeal did not deal adequately with the basis upon which it was made, and third that once Mr Beckett was off sick, the employer did not do enough to keep contact with him, and see how he was getting on. The only contact that was made between employer and employee after he went off sick in relation to his being away from work, was one telephone call which to put it at its very lowest, was extremely badly handled by Mr Manners. Beyond that, the remaining communications were communications telling him that his pay was being reduced in accordance with his right to sick pay, and communications relating to the grievance procedure.
5. Bristol United Press appeals against the finding that there was a constructive dismissal on three grounds, the first of which is that the finding of repudiatory breach was perverse. The case as put is that the Tribunal could not properly have found as they did, having rejected the central thrust of Mr Beckett's allegations. Having rejected the contention that there was a plot to get rid of him, it is said that the Tribunal could not properly have gone on to find that the three matters relied upon were sufficient to found a constructive dismissal.
6. Taking each of those in turn, it was said that the use of Mr Manners as the first port of call in the grievance procedure was good industrial practice, was in accordance with the employers own grievance procedure, and therefore could not possibly be a basis for saying that there had been a breach of the employer's obligation to the employee. We were referred to a passage in W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516, in particular the passage at paragraph 11, and further the passage at paragraph 14 of the judgment. It was said that what was done not only could not be regarded as repudiatory conduct or part of repudiatory conduct, but was indeed good practice. In our judgment the Tribunal were entitled on this point to find as they did. They were not making a finding as to general industrial practice. What they were doing was making a finding in relation to the way in which this particular grievance procedure was handled in this particular case, and they were well entitled to say that where a grievance procedure related to amongst other things bullying, and it was said conspiracy, against the employee by the line manager, it was wholly inappropriate that the line manager should be the person investigating himself, and seeking to deal with the problem. Now in very, very many cases, even if the complaint is against the line manager, it may well be entirely appropriate that he should be the first port call in dealing with the grievance. That is not something which is gainsaid by the Tribunal. What the Tribunal was dealing with was this particular grievance procedure, and they were entitled to find as they did.
7. Then it was said that the Tribunal were in error in finding, if they did, that the appeal did not deal properly with the matters raised on the appeal. Again it seems to us that the Tribunal were entitled to make the findings which they did. The finding was in paragraph 20 of the Decision:

"There was an appeal, but it is not clear to us that that appeal addressed any of the substantive complaints. There were no findings as to whether Mr Manners had gone beyond firm management and into the realms of bullying or isolating the applicant. There was only a reiteration of the Editor's right to manage and a request that the applicant compromise."

8. We were taken in some detail through the Decision letter, and it was suggested the Decision letter, did in fact deal properly with the matters that had been raised. It is at page 99 of our bundle, and I do not think that it is necessary for the purpose of the Judgment to read it out. In our view again, this was a matter for the Tribunal to decide, and the decision which they came to was one that was open to them. It cannot properly be said that the employer has overcome the high hurdle which is necessary, if an employer is to satisfy the Employment Appeal Tribunal that the Tribunal below was perverse.
9. The third point that was raised was that the finding that the employer had acted inappropriately, in only having minimal contact during his illness was perverse. Reliance was placed on the fact that there was contact in relation to his reduction in pay (it is unfair to ask quite how that would assist the employer) and also in relation to the grievance procedure. It was also pointed out that since Mr Manner was the subject of Mr Beckett's complaint, and that the one telephone call which had been made had been an ill handled occasion, when as a result of Mr Manners performance, Mrs Beckett would not even allow her husband to come to the telephone, it would not have been appropriate to call again. It was suggested this was a case where whichever way the employer had acted, it would be of subject to criticism. It was suggested to us that the employer would have been damned if it did, and damned if it did not. If it did not, it would have a finding such as the Tribunal made here, but if it did, it would be suggested that pestering of a sick employee was inappropriate.
10. It seems to us again that the Tribunal's finding was one to which the Tribunal was perfectly entitled to come. Contact could have been made in many ways. It was not necessarily Mr Manners who had to do it. It was not necessarily something which had to be done by telephone. The Tribunal were entitled to take the view that when a employer of many years standing is for the first time off away from work with stress, an employer who has his employee's interests at heart, will appear to take some interest in the employees state and in the employee's prospects.
11. Each of those three factors was a factor which in our view, the Tribunal was entitled to take into account, and the Tribunal was entitled to look at the three together. But the question then comes (and this turns to the second of the grounds of appeal) whether when determining if there had been a repudiatory breach, the Tribunal adopted the wrong test. The Decision does not go to any great detail on the law involved. Given that the law involved is frequently set out by Tribunals, and must have been familiar to everyone, it is perhaps not surprising that there was no very detailed elaboration of the law, but there are only two sentences which deal with the matter in dispute. The first two sentences at paragraph 21 read as follows:

"In our view, the history of this matter from the inception of the grievance procedure is likely to destroy or damage the relationship of trust and confidence which ought to exist between employer and employee for the reasons we have given. We are satisfied that it did so and that it amounted to a repudiatory breach in response to which the applicant resigned."

12. What is said is that if one looks what is now the ultimate authority in relation to this, the Tribunal adopted the wrong test. We were referred to Mahmud v BCCI [1997] ICR 606 per Lord Steyn at page 621 who said this :

"For convenience I will set out the term again. It is expressed to impose an obligation that the employer shall not:

"without reasonable and proper course conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. (See Woods v WM Car Servcies (Peterborough) Ltd [1981] ICR 666 EAT at 670 per Mr Brian Wilkinson; approved in Lewis V Motorworld Garages Ltd [1986] ICR 157 CA and Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] ICR 524)""

13. There is also a further passage at page 623, still in the speech of Lord Steyn, beginning at letter B as follows:

"The implied obligation extends to any conduct by the employer likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. It may well be, as the Court of Appeal observes, that the decided cases involved instances of conduct which might be described "as conduct involving rather more direct treatment of employees" [1996] ICR 406,412 So be it. But Mr Morritt LJ held, at p 411, that the obligation:

" may be broken not only by an act directed at a particular employee but also by conduct which, when viewed objectively, is likely seriously to damage the relationship of employer and employee."

That is the correct approach""

14. In this particular case, as would have been apparent from my reading of the two sentences involved, the Tribunal did not use the expression 'destroy or seriously damage', it omitted the words 'seriously'. The question then is, can one from the remainder of the paragraph see, that despite what might have almost been thought to be a 'typo,' the Tribunal was applying the correct test. We do not think it can be so said. The second sentence is

"We are satisfied that it did so."

i.e that it did destroy or damage the relationship of trust. One cannot not imply from that the word 'seriously' is omitted in error and we cannot tell whether the Tribunal is referring to 'damaging' or 'destroying' a relationship.' Then the second clause of that sentence is "and that it amounted to the repudiatory breach in response to which the Applicant resigned". The 'it' in that context, must relate back to the history of the matter of the inception of the grievance procedure. It amounted to a repudiatory breach, but what, I ask rhetorically, did the Tribunal regard as a repudiatory breach ? Answer, conduct likely to damage or destroy the relationship. We could not imply from that second sentence, however hard the Employment Appeal Tribunal tried, that the word 'seriously' was intended to be in there. It follows that we take the view that it appears that the Tribunal may have erred on the face of their decision in the legal test which they applied.

15. We then went onto consider whether it could be said that it was obvious, or certain, that the Tribunal would have reached the same conclusion, if had applied the correct test. We regard it as very likely that the Tribunal would have reached the same conclusion, and before this matter goes back for rehearing, that may be something the parties wish to take into account in seeing whether they can compromise their differences even at this late stage, thereby saving further cost. But we cannot say that it is inevitable that the Tribunal would have reached the same conclusion. It follows therefore, that this ground of appeal is successful and so far as this ground is concerned it results in the matter having to be remitted to the same Tribunal, to indicate what their conclusion is on their findings of fact on a correct basis of law.
16. The third ground of appeal which was raised, was that the Tribunal failed to address whether Mr Beckett had resigned, in response as to the employer's breach as found. It was pointed out that a repudiation will only result in a constructive dismissal if the contract of employment is terminated in response to a repudiation We referred to the Decision of the Employment Appeal Tribunal, in O' Grady v Financial Management Group Services Ltd EAT/1161/94 (unreported), a decision 27 October 1995 by His Honour Judge Clark, Mr A Blighton and Mr R N Straker, which was followed and approved by Jones v F Sirl & Son [1997] IRLR 493 in a Tribunal chaired by Judge Colin Smith QC.
17. We think that now matters have moved on slightly, and that the appropriate test is that adumbrated in Nottinghamshire County Council v Meikle [2004] IRLR 703, in the latter part

of paragraph 33, where Lord Justice Keane, with whom Lord Justice Thorpe and Mr Justice Bennett agreed said this:

"The proper approach, therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract of employment as at an end. It must be in response to the repudiation, but the fact that the employee also objected to the other actions or inactions of the employer, not amounting to a breach of contract, would not vitiate the acceptance of the repudiation. It follows that, in the present case, it was enough that the employee resigned in response, at least in part, to fundamental breaches of contract by NCC."

18. In this particular case, the Tribunal found as a fact that Mr Beckett did so resign. I have already read the sentence where very briefly, the Tribunal make their finding.

"We are satisfied that it did so, and that it amounted to the repudiatory breach in response to which the Applicant resigned."

When one looks at the letter of resignation at page 100 of our bundle, and again I need not read it out, it seems to us, that the Tribunal were well entitled to reach that conclusion. That ground of appeal therefore also fails, though of course it does not have any impact given our earlier Decision that this matter must be remitted

19. So much then for the appeal, there was however also a Cross-appeal by Mr Beckett, against the dismissal of his claim for disability discrimination. The two points that were taken, were first as to causation, and second as to reasonable adjustment. The reasonable adjustment point was dealt with briefly by the Tribunal, and I think we need say little about it. The way in which the claim had been put in the IT1 on disability discrimination, was very briefly in the last sentence of the last paragraph of the claim.

"The Applicant also contends that his employers failed to make reasonable adjustments, including failing to deal with his grievance properly, and failing to make any adjustments to enable the Applicant to return to work".

That latter part was dealt with by the Tribunal, and there is now an appeal against the dismissal of the claim based on that. The Skeleton Argument which was used below on behalf Mr Beckett, contained also simply one sentence in relation to this topic. The second and final sentence at paragraph 4.5:

"In addition it is submitted that a reasonable adjustment would have been to deal with the grievance swiftly and properly"

The Tribunal took the view that, and I quote from paragraph 17, this:

"…..is not a term, condition or arrangement on which employment or any other benefit is offered.It may be a breach of a term but it is not a breach of term which is covered."

20. That comment has to be seen again the background of what was being argued. It was not being argued, for example, as it might have been, that it was inappropriate to have the hearing at the offices of the place of work, but it should be on some neutral territory given that he was suffering from stress. It was not argued, as it might have been, that some adjustment needed to be made to the procedure, e.g that he should have been given extended time to deal with the matter, or that time ought to be abridged, or that he should be allowed to put all his complaints in writing, or anything of that sort. The sole way in which the complaint was put, was that reasonable adjustment would have been to deal with the grievance swiftly and properly.
21. In our judgment, the Tribunal's view in relation to that was a perfectly sound one, furthermore, it is perfectly clear that the manner in which his grievance was dealt with was not anything to do with the perceived disability of Mr Beckett, assuming for the sake of argument by that time he was indeed disabled.
22. The other ground of the Cross-appeal was that the finding that any less favourable treatment was not by reason of disability was perverse, and had in itself a number of sub points. It was suggested that the Tribunal rejected his complaints, because they found that the majority of the matters of which he complained had antedated his disability. That it seems to us was a misreading of paragraph 15.The Tribunal commented that the majority of matters about which he complained, antedated his disability. But they then went on to deal with those matters which occurred after his disability. It was said then the Tribunal should have concluded that less favourable treatment was on the grounds of his disability. This was a finding open to the Tribunal but it chose not to make it. They found, and it seems to us that they were almost bound to find, that the treatment of Mr Beckett had nothing whatever to do with his disability, and that he was not less favourably treated on those grounds.
23. Then it was said that the Tribunal erred in law when they said at paragraph 15 of the Extended Reasons:

"In our view the failure would have to be for a reason related to the disability. In other words, the fact of the disability had to be a reason why there was the failure to support, and we do not think that that is the case here."

The point that was being made was that the failure to offer support after he had gone off sick, was itself less favourable treatment and that it related to his disability. The argument is made that the use of the word 'the' in the sentence

"in other words, the fact of the disability had to be the reason why there was the failure to support, and we do not think that that is the case here.,"

suggests, that the Tribunal thought that the fact of disability had to be the only reason. In our judgment that is a misreading of paragraph 15 when taken as a whole. The Tribunal had already made reference to the fact that there was no evidence that any such treatment was for 'a' reason, related to any disability, and in the penultimate sentence of the paragraph;

"in our view the failure would have to be for a reason related to the disability;"

they are quite clearly setting out the correct test. Whilst it is possible by reading the last sentence, so as to stress the word 'the', to suggest that the Tribunal was misinterpreting the law, we do not think that it is a proper reading. The fact of the disability had to be the reason without stress on the word 'the'. When taken in context, this does not suggest that the Tribunal was in any sense erring in law, or misunderstanding of the position. They had already found that there was no evidence that any such treatment was for 'a' reason related to disability. They had used the correct formula in the previous sentence, and the, perhaps marginally unfortunate, use of the word 'the' in the last sentence of that paragraph does not it seems to us indicate an error of law.

24. It follows in those circumstances, the Cross-appeal fails and should be dismissed. The case must be remitted to the same Tribunal for what we trust (if it has to go back) is a very short hearing. The Tribunal must determine the issue on the facts they have found on a correct view of the law, that is by the insertion in the test that they use of the crucial word 'seriously'.

We thank both Counsel for there arguments, which have been very well conducted, and very much to the point.