At the Tribunal | |
Before
HIS HONOUR JUDGE SEROTA QC
MR J C SHRIGLEY
MR D WELCH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | No appearance or representation by or on behalf of the Appellant |
For the Respondent | MR ROBERT MORETTO (of Counsel) Instructed by: Messrs Dickinson Dees Solicitors St Ann's Wharf 112 Quayside Newcastle upon Tyne NE99 1SB |
SUMMARY
Time Limits: Reasonable practicability
Contract of Employment: Mutual trust and confidence
Employment Tribunal decided that various claims for detriment by reason of alleged public interest disclosures, health and safety activities and trade union activities were brought out of time and that the Claimant had not shown that it was not reasonably practicable for them to have been brought within time. These findings were upheld.
Respondent's cross appeal dismissed. The Employment Tribunal was entitled on the facts that it found to conclude that there had been a breach of the implied term of trust and confidence that entitled the Claimant to claim constructive dismissal.
HIS HONOUR JUDGE SEROTA QC
Introduction
"there is no evidence that would constitute bullying and harassment".
"Mr Geary received the report itself on or about 13th January 2005. Despite what was said at (a) above, there was evidence of bullying and harassment in that
(i) There was the undisputed evidence of the Christmas certificates;
(ii) Wayne Bamford and Alan Steele both described Mr Harper to the investigation as a bully;
(iii) Wayne Bamford and Alan Steele both described harassment by Mr Harper of Mr Geary to the investigation. Mr Bamford told the investigation that he heard Mr Harper abuse Mr Geary on a daily basis as a "stupid fat prick"; and Mr Steele gave an example of Mr Harper discrediting Mr Geary over the Friday afternoon tea break."
"He thought that the authors of the report had ignored evidence in his favour. We think that he was right. His trust and confidence in his employer was seriously undermined. As a result he resigned.
He wrote a letter dated 17th January 2005 in which he said he was resigning because no measures had been put in place to protect him by preventing harassment after his initial complaint. He did not say in terms that he resigned because of the report or its contents. Given the chronology, however, we think it is demonstrably the case that he resigned in response to the report and its findings."
"54. This claim is in time. The claim form was received by the tribunal on 10th April 2005. Mr Geary resigned by letter dated 13th January 2005 which was received by the respondent on 18th January 2005. Mr Geary gave two weeks' notice which would have expired on 1st February 2005.
55. We consider that the respondent was in fundamental breach of contract. Mr Geary had made very serious allegations that he had been bullied and harassed by Mr Harper. He had made those allegations sincerely and trusted that his employer would investigate them fairly. Although the respondent commendably poured much time and effort into the investigation the final report concluded that there was no evidence of bullying and harassment: although in fact there had been such evidence.
56. Mr Moretto submits that in fact what the respondent did was to prefer the preponderance of the evidence. This is not however what the report says: it says that there was no evidence of bullying. We consider that it must seriously undermine the relationship of trust and confidence when - in a matter so emotive, stressful and important to the employee as an allegation of bullying - the employer asserts that there is no evidence to support the allegation when there is.
57. There was no reasonable or proper cause for the respondent to deny the existence of such evidence and accordingly the respondent is in breach of the implied term of trust and confidence.
58. Mr Geary resigned in response to that breach and we consider that the chronology leading to his resignation makes this clear. There was no delay and he has not waived the breach. He has therefore been constructively dismissed."
The Respondent's Case
"commendably poured much time and effort into the investigation"
The report was detailed, and it was submitted that in effect and the most that could be said is that the Claimant had been told, not in the report but in the letter verbally, that there was no evidence of bullying. Also it was right to say that there had been no evidence of bullying for the previous nine months.