United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Gwyn Price Rowlands (of Counsel) Instructed by: Messrs Goodmans Solicitors 6-8 Broadway Liverpool L11 1JS
For the Respondent	Mr Richard Bradley (of Counsel) Instructed by: Messrs Mace & Jones Solicitors Drury House 19 Water Street Liverpool L2 0RP


 


Summary

Constructive dismissal – whether ET reasons adequately dealt with issues raised – appeal allowed and case remitted to fresh ET for rehearing.


 


HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by Dr Varma, the Claimant before the Liverpool Employment Tribunal against the decision of a Tribunal chaired by Mr E Lloyd Parry, promulgated with reasons on 17 August 2004 following an 8 day hearing, dismissing his complaints of race and sex discrimination, unfair constructive dismissal, and subjecting him to a detriment under the 'whistle blowing' provisions of the Employment Rights Act 1996, brought against his former employer the Respondent, North Cheshire Hospitals NHS Trust.
2. The Claimant represented himself below and mounted a wide-ranging appeal against that decision. When the appeal came on for preliminary hearing on 30 September 2005, he was represented by counsel and solicitors. Mr Price Rowlands indicated that the appeal would be limited to an attack on the Tribunal's finding that the Claimant had not been constructively dismissed. Amended grounds of appeal limited to that issue were permitted to proceed to a full hearing. The case was originally listed for that hearing on 21 February 2006 before a division presided over by HHJ Burke QC. However, due to a possible conflict of interest, that hearing was aborted. Following a directions hearing before me held on 10 May 2006, the matter now comes before this division for final hearing.

Background

3. Following university the Claimant commenced a one year training period as a Pre-Registration House Officer at the Respondent's Halton General Hospital. He was employed on a fixed term contract beginning on 31 July 2001 and expiring on 6 August 2002. The Claimant's training period was split into two 6 month assignments, the first to work in medicine under the supervision of Dr Williams, the second in surgery under Mr Pollett.
4. In order to successfully complete the training programme it was necessary for each supervisor to certify that the student doctor had reached the standard required for a certificate of experience. Dr Williams felt unable to so certify in the Claimant's case. This was due mainly to a number of incidents concerning the Claimant's conduct which the Tribunal described as bizarre. They thought him to be an irrepressible fantasist. Examples are given in their reasons.
5. Following expiry of his fixed term contract the Claimant remained on the payroll. On 15 November 2002 he was formally suspended on full pay by the Respondent. On 4 December Dr Rose, the Respondent's medical director, referred the Claimant to the General Medical Council (GMC) for an assessment of his fitness to practice. Internal disciplinary proceedings then followed. A disciplinary hearing was fixed for 4 March 2003, but adjourned to 15 May. On 4 April the GMC wrote to the Claimant giving him details of the reference made to it by Dr Rose. On 15 May, the day fixed for the disciplinary hearing the Claimant resigned. His letter of resignation stated "I do not believe that I will receive a fair hearing and that the decision about my future employment has already been determined as the documentation produced to the GMC shows".
6. The 3 members of the disciplinary panel convened to hear the disciplinary case against the Claimant were as follows; Dr Beecham, a non-executive director of the Respondent, nominated by the Respondent's chief executive; Dr Higgins, nominated by the Dean of Faculties of Medicine at Liverpool University and Dr Kadia, whose name was taken from a list of nominees provided by the Royal College of Surgeons.

The Claimant's Case

7. The Claimant's case on constructive dismissal contained the following strands:

1) Pre-determination

In his lengthy letter to the Employment Tribunal dated 10 July 2003, and standing as his originating application, under the heading 'Predetermination of the Trusts Internal Disciplinary Matter' the Claimant refers to certain documents generated internally by the Respondent which had been disclosed to him by the GMC following Dr Rose's reference. They were:

(i) a letter from Dr McNama to Dr Silance dated 12 April 2002;

(ii) a file note composed by Dr Rose following his conversation with Mr Johnson, a senior consultant at Halton Hospital dated 4 September 2002; and

(iii) a memorandum from Dr Rose to Mick Curwen, the Respondent's deputy head of Human Resources, dated 7 January 2003.

2) Suspension

In his originating application the Claimant refers to 2 emails from Mr Ramage, the Respondent's solicitor, dated 4 November 2002 and 13 January 2003, again disclosed to him by the GMC. In the first, Mr Ramage writes, "you will see that I have not tried in any way to deny that this present suspension is in breach of contract. I think this is plainly so and that nothing would be served by attempting to deny it".

3) The Skidmore point

In Skidmore v Dartford and Gravesham NHS Trust (2003) RLR 445, the House of Lords considered the distinction between the separate contractual disciplinary procedures in the Health Service relating to personal and professional conduct. In the present case the Respondent proposed to take the personal conduct route in disciplinary proceedings taken against the Claimant. In his closing written submissions to the Tribunal below the Claimant contended that since it had been alleged against him that he had breached patient confidentiality the Respondent ought to have proceeded down the professional misconduct route. He cited the Skidmore case.

Further breach of contract

8. In his final grounds of appeal the Claimant contended that the Respondent's reference to the GMC was in breach of NHS guidelines and thus in breach of contract, in that internal disciplinary proceedings had not then been concluded, in that way breaching his contract of employment. I granted the Claimant permission to make that further amendment at the directions hearing held on 10 May 2006, whilst preserving the Respondent's right to contend that this point was not taken below. That contention is now raised. Having heard argument at this hearing we have concluded that the point was not argued below. No exceptional circumstances justifying it being taken for the first time on appeal are made out. The point would require further findings of fact by the Employment Tribunal. Accordingly we shall not permit the point to now be taken for the first time. See Jones v Burdett Coutts School (1999) ICR 38.

The Tribunal decision

9. At a directions hearing held before a Chairman, Mr D Reed, sitting alone at Liverpool on 21 November 2003, that Chairman identified the issue as to constructive (unfair) dismissal to be determined at the final hearing in this way. "The Applicant (the Claimant) claims that the manner in which he was treated by the Respondents in the course of disciplinary proceedings taken against him (including his belief that the result of those proceedings was predetermined) led him to resign". In their reasons the Lloyd-Parry Tribunal identified unfair constructive dismissal as one of the issues to be determined (reasons paragraph 2.1). At paragraph 4.23 they said:-

"On 15 May 2003 the Applicant wrote to the Respondent saying that he was resigning from their employment forthwith. He said he did not believe he would receive a fair hearing and that the decision about his employment had already been taken. When at the hearing before us it was put to him that the decision would be made by the 3 panel members he said that they were all engaged in the conspiracy against him. They were hand in glove with his accuser's intent on getting rid of him."

The reasons for dismissing the complaint of constructive unfair dismissal are stated at paragraph 6 of their reasons thus.

"6. Constructive dismissal

6.1 The findings on the complaints of discrimination indicate those on all the complaints. Before we might have found that the Applicant was constructively dismissed he would need to prove that the Respondent's were in fundamental breach of the contract of employment and that he resigned in response to it without affirming the contract in its breach as by delay. The Respondent's were not in fundamental breach of the contract of employment neither of an expressed term nor the implied term that they would not so conduct themselves as to warrant the forfeiture of the Applicant's trust and confidence.

6.2 The reason why the Applicant resigned he told us was that he had no faith in the integrity of those who would conduct the disciplinary hearing. The accusations seem to us to be desperate, certainly the case revealed to him beforehand was formidable, even from his viewpoint alarming. But the proceedings were justified and we do not know what the outcome would have been had he gone through with it. Realistically having regard to our own findings it is difficult to visualise that he would have been _____ but the decision as to his future is simply unknown. We did not for a moment believe that the 3 panel members were corrupt as he accused. There was in the evidence no foundation for that finding. The Respondent's were not in starting the disciplinary proceedings in breach of the contract of employment. The Applicant was not dismissed."

Constructive dismissal

10. The implied term of mutual trust and confidence has been formulated in a number of cases starting with Woods v WM Car Services (1981) IRC 666 (EAT), approved by the Court of Appeal in Lewis v Motorworld (1986) ICR 157 and the House of Lords in Mahmood v BCCI (1997) IRC 606, as follows, the employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.
11. The question is whether, viewed objectively, the conduct of the employer is likely to destroy or seriously damage the employee's trust and confidence. Where the term allegedly breached is an express term, a further question arises as to whether that breach is repudiatory, that is going to the root of the contract. The employee must resign in response to the employer's repudiatory breach of contract. He must do so promptly, else he may be held to have waived the breach; however, the breach as found need not be the sole cause of the resignation, provided it is an effective cause. It is not necessary that the employee tells the employer at the time he resigns that the employer's repudiatory breach is the reason for his resignation.

The Appeal

12. The principal submission by Mr Price Rowlands on behalf of the Claimant in this appeal is that, on the face of their reasons, the Tribunal has not made the necessary findings on the various issues before them in relation to the constructive unfair dismissal claim. He submits that of the 3 strands to the Claimant's case before the Tribunal no mention is made at all in their reasons of the suspension point, nor the Skidmore point. As to the issue of predetermination, he has taken us to the text of the internal documents disclosed to the Claimant by the GMC, none of which are mentioned in the Tribunal's reasons, as showing that even if, contrary to the Claimant's case, the disciplinary panel was not in fact corrupted by management, then it was clear to him that even if the disciplinary panel did not recommend dismissal he could plainly see that he had no future with the Respondent.
13. In these circumstances it is said that the only proper course is to allow this appeal and remit the issue of constructive unfair dismissal to a fresh Tribunal for rehearing.
14. Mr Bradley accepts that the suspension issue, more particularly whether the Claimant was informally suspended on 14 May 2002 in breach of the contractual procedure and the Skidmore issue were raised before the Tribunal, as the pleadings and parties' closing submissions show, but no adjudication has been made on the face of the Tribunal's reasons on those 2 issues. As to the question of predetermination, he points to the Tribunal's finding (reasons paragraph 6.2) that the Claimant's stated reason for his resignation was that he had no faith in the disciplinary panel. The Tribunal went on to find as fact that there was no objective justification for that view, thus there was no breach of the implied term of trust and confidence made out. Accordingly the effective cause for the resignation relied on by the Claimant was not made out.
15. As to the suspension and Skidmore issues, Mr Bradley submits that the former is of no significance, it not having been relied on by the Claimant as a cause for his resignation; the latter was not raised prior to resignation. He argues that despite the Tribunal's omission to deal with these issues on the face of their reasons they did find that the Respondent was not in breach of contract in starting the disciplinary proceedings and that looking at their findings overall the conclusion that the Claimant was not constructively dismissed was plainly and unarguably correct Dobie v Burns (1984) ICR 812. Alternatively he contends that it would not be proportionate to allow this appeal given the likely outcome on remission of a further 3-4 day Tribunal hearing.

Conclusion

16. We prefer the submissions of Mr Price Rowlands. It seems to us that in deciding the first question, was the Respondent in breach of contract, it was incumbent on the Tribunal to make clear findings on the suspension and Skidmore issues. They made none. Whether if a breach or breaches were found they would in the view of the Tribunal amount to repudiation by the employer, is again unanswered. As to the predetermination issue, we accept, of course, the Tribunal's finding of fact that there was no evidence that the panel appointed to hear the Claimant's disciplinary was in fact corrupt as suggested by him. However, that does not answer the legal question; on the material available to the Claimant was he objectively entitled to conclude that he would not receive a fair hearing, and if so, did that seriously undermine the necessary trust and confidence?
17. It was necessary for the Tribunal to view the matter overall, resolving the issues raised before reaching a conclusion on constructive dismissal. We do not accept Mr Bradley's submission that the answer would inevitably have been as decided by the Tribunal. Nor do we consider it disproportionate, having identified an error of law in the Tribunal's approach, to allow the appeal and remit the constructive dismissal issue and consequent potential questions of fairness and contribution, to a fresh Tribunal for rehearing. We accept Mr Price Rowlands point that this case concerns the future career of a fledgling doctor; the question as to whether or not he was unfairly dismissed is plainly of considerable importance to him, regardless of other proceedings still pending before the GMC.
18. In these circumstances we shall allow the appeal and remit the issue of constructive unfair dismissal to a fresh Tribunal for rehearing.