United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SIMON GORTON (of Counsel) Instructed by: Halliwells LLP Solicitors The Plaza 100 Old Hall Street Liverpool L3 9TD
For the Respondent	MR TIM KENWARD (of Counsel) Instructed by: Liverpool City Council Legal Services PO Box 88 Municipal Buildings Dale Street Liverpool L69 2DH


 


SUMMARY

Unfair Dismissal – constructive dismissal

In a constructive dismissal claim based on a disciplinary sanction short of dismissal, the issue is whether the sanction was disproportionate. Although BHS v Burchell should not be imported wholesale into cases of constructive dismissal, where the issue was the severity of a disciplinary penalty, it was not an error of law to consider whether the sanction fell outside the band of reasonable responses.


 


THE HONOURABLE MR JUSTICE BEAN

1. The claimant began his employment with the respondents in April 1980. In a letter of 20^th January 2005 he wrote:-

"… As a result of the City Council's conduct towards me in imposing what I believe to be an entirely unjustified and unfair disciplinary sanction, compounded by the inordinate delay in hearing my appeal against such sanction, and a failure to deal with my grievances, I am terminating my employment with Liverpool City Council in accordance with the terms of my contract."

2. He subsequently lodged a complaint of constructive unfair dismissal, which was heard by an Employment Tribunal sitting in Liverpool under the chairmanship of Mr R S Bradshaw. By its reserved judgment, sent to the parties on 21^st March 2006, the Tribunal dismissed the complaint. Mr Bates now appeals against that decision.
3. The claimant is a qualified social worker. In May 2002 he lodged a grievance regarding supervision. At a meeting with a manager on 17^th June 2002, that grievance was considered informally but rejected. A grievance appeal hearing on 4^th September 2002 upheld that decision. By letter of 1^st October 2002 his solicitors wrote stating that he intended to pursue a further grievance appeal and that his trade union would deal with the matter. It does not appear that either side took any further action on this letter in the ensuing three year period.
4. In September 2002 a child in the care of the Council died and the claimant was suspended. Following a disciplinary hearing he was given a written warning. An appeal against that written warning was rejected. On 25^th September 2003 another child, referred to in the Tribunal's decision as child O, died. The claimant had been the supervisor of child O's key worker, Ms Vaccarello. At a team meeting shortly afterwards the claimant stated he was not performing well, and was not coping because circumstances did not allow him to. He wondered if he should move on, and was intending to discuss that with his Principal Manager, Mrs Mekki.
5. Ms Vaccarello was not disciplined in relation to child O, but on 16 October 2003 the claimant was suspended. Mrs Mekki carried out an investigation, after which, on her recommendation, the claimant was required to attend a disciplinary hearing. It was originally arranged for 10^th February 2004 but did not take place until 19^th July 2004. It was chaired by Colin Hilton, the respondent's Director of Education. Mr Hilton's conclusion was that the claimant had failed in his duty to take reasonable steps to ensure that Ms Vaccarello was following the respondent's child protection procedures and that this amounted to gross misconduct. In view of what he accepted to be "the systemic failure within the team to put in place robust procedures to support supervisors in their duties" he did not dismiss the claimant, as he would have otherwise have done, but imposed a final written warning and demotion to a non-managerial grade.
6. The claimant, through his trade union, appealed against the decision and returned to work expressly under protest. (A request which he made for voluntary early retirement was rejected). The appeal was due to be heard on 20^th December 2004. A problem arose, however, since three witnesses due to give evidence at the appeal were taking industrial action. It was therefore agreed (as the Tribunal found in paragraph 4.23 of their decision) that the appeal hearing should be postponed, and it was rearranged for 14^th March 2005. The claimant made no complaint about any delay in the hearing of the appeal, either before or after the adjournment.
7. By letter of 20^th January 2005, as we have already recorded, the claimant resigned, the effective date of termination being eight days later.
8. The Tribunal set out the four elements of a claim for constructive dismissal under section 95(1)(c) of the Employment Rights Act 1996 in terms which are accepted to be correct:

(a) There must be a breach of contract by the employer;

(b) The breach must be sufficiently important to justify the employee resigning, or the last of a series of incidents which justify his leaving;

(c) The employee must leave in response to the breach;

(d) The employee must not delay too long in terminating the contract in response to the employer's breach.

9. The Tribunal went on to give their unanimous conclusions:-

"7. In a case of constructive dismissal the burden is on the claimant to satisfy the Tribunal that the employer has been guilty of a fundamental breach going to the root of his contract of employment and reference has been made to the four conditions which must be met. In short what the Tribunal has to consider is whether there were 'grave and weighty' reasons justifying the claimant resigning from his employment as occurred in this case, the claimant's letter of resignation with effect from 28 January 2005 being dated 20 January 2005. Looking at that document but dealing with the three points raised by the claimant in reverse order:-

7.1 A failure to deal with my grievance. The finding of the Tribunal is that the respondent failed to an extent to deal with the claimant's grievances, but neither that they constitute a fundamental breach nor are they 'grave and weighty'.

7.2 An inordinate delay in hearing my appeal. The delay was from July 2004 until the appeal would have been in heard in March 2005 had the claimant not resigned with effect from 28^th January 2005. However, a hearing of the appeal had been fixed. Delay was to a large extent fairly attributed to a strike. It is significant that the claimant resigned only seven weeks before the appeal was to be heard and in the view of the Tribunal a reasonable employee would have waited and not resigned when the claimant did. Furthermore a further question is whether that delay, either in isolation or 'compounded', was or is 'grave and weighty', as to which the Tribunal is not satisfied that it was.

7.3 Entirely unjustified and unfair disciplinary sanction. The Tribunal has approached this aspect of the case on the same basis as they would have considered an express unfair dismissal case, having regard to the guidelines in British Home Stores -v- Burchell [1978] IRLR 379 as approved and expanded by the Court of Appeal in the case of Weddell -v- Tepper [1980] IRLR 96. The Tribunal has had regard to paragraphs 4.18.1, 4.18.2 and 4.18.3 (relating to the role of the key worker's supervisor) in the relevant respondent's procedure, and has considered the meaning of "ensure". There were two investigations, the outcome of both of which were consistent, the conclusions being that the claimant had failed to ensure that certain responsibilities had been discharged. That was the basis upon which any disciplinary matter would have been determined. The Tribunal is satisfied in the light of the evidence that the guidelines set out in British Home Stores -v- Burchell would have been satisfied in this case, in that there was as full an investigation as was reasonable in the circumstances, giving rise to the respondent's belief that misconduct had occurred, which was a reasonable belief in the light of what was known to the respondent at the time.

8. In the circumstances the claimant has not satisfied the Tribunal on the balance of probabilities that the respondent was guilty of a fundamental breach going to the root of the contract justifying resignation. However, even if the Tribunal is considered wrong in that respect it is noted that the Tribunal would have found a high degree of contributory conduct in that the claimant was to a large extent the author of his own misfortunes in particular in failing to comply with his responsibilities under the Child Protection Policies and Procedures, in circumstances where the subject matter i.e. child protection is serious and not to be lightly regarded. The Tribunal has had regard to the claimant's length of service and experience. However, in short the claimant has failed to discharge the burden on him to prove that he was constructively and unfairly dismissed. Accordingly his claim fails and is dismissed."

10. Mr Simon Gorton, who did not appear below, puts forward four grounds of appeal:

(1) that it is wrong in law to find that conduct by the employer must be "grave and weighty" in order to amount to a breach of contract;

(2) that the finding in relation to the grievance was inadequate;

(3) that the Tribunal erred in not finding that the delay in hearing the appeal was a breach of contract (either of an implied term that the hearing would be held with reasonable expedition or because the delay breached the implied term of trust and confidence), and confused the issue of whether there was a breach of contract with whether the appellant acted reasonably;

(4) that the Tribunal erred in applying to the question of whether the disciplinary sanction was in breach of contract with the "range of reasonable responses" test applicable to ordinary unfair dismissal. We deal with each of these in turn.

"Grave and Weighty"

11. Although in the Tribunal's decision this phrase appears within inverted commas, it is not, so as far as we or counsel are aware, a quotation from any authority on constructive dismissal. But we accept the submission of Mr Tim Kenward, for the respondents, that the opening lines of paragraph 7 and the use of the words "in short" make it clear that "grave and weighty" is the chairman's paraphrase of the familiar test of whether the employer has been guilty of a fundamental breach going to the root of the contract of employment. We appreciate that in paragraph 7.1 the Tribunal found that the respondent's failings on the grievance issue were neither a fundamental breach nor "grave and weighty" (which would, on a literal interpretation, mean that the two tests were alternative rather than cumulative). But it is wrong to construe a Tribunal decision as if it were a statute. The finding in relation to the grievance, on a fair interpretation, is that the employer's failings did not constitute a fundamental breach nor, putting it another way, were such failings grave and weighty. When the Tribunal use the phrase for the last time, in paragraph 7.2 relating to delay, it is in a context where they have clearly already rejected the submission that the delay was inordinate. In paragraph 7.3, dealing with the crucial issue of the disciplinary sanction, the phrase is not used at all. We have already noted that it is common ground that in paragraph 5 the Tribunal accurately summarised the requirements to establish a case of constructive dismissal. Although we would not recommend any Tribunal to use the phrase "grave and weighty" as a paraphrase of the test for constructive dismissal, when the judgment is read as a whole we do not consider this to be a point of substance.

The Grievance Issue

12. We are not surprised that the Tribunal dealt with this very shortly. As Mr Kenward submitted on behalf of the respondents, the matter had simply gone to sleep for three years. On those facts, which are in stark contrast to those in Goold v McConnell [1995] IRLR 516, the failure to respond to the letter of 1^st October 2002 cannot be used out of the blue in 2006 as one of a series of incidents amounting cumulatively to repudiatory behaviour.

Delay in hearing the appeal

13. Mr Gorton submitted that the delay was inordinate and was, accordingly, repudiatory either in its own right or as the last straw in a cumulative series of acts: see Lewis v Motorworld Garages [1986] ICR 157 and London Borough of Waltham Forest v Omilaju [2004] ICR 481. The Tribunal were entitled to reject both contentions in the light of their findings that, prior to his resignation letter, the claimant had never complained about any delay in the hearing of the appeal, whether before or after the postponement from December 2004 to March 2005; that the postponement had been agreed and was the consequence of witness difficulties attributable to a strike; and that a reasonable employee would have waited rather than resigning only seven weeks before the date fixed for the hearing of the appeal. The only criticism which can be made of this part of the decision is the use of the phrase "grave and weighty", with which we have already dealt.

The disciplinary sanction

14. British Home Stores v Burchell [1978] IRLR 379, a classic authority in the field of what may conveniently be called direct unfair dismissal, should not be imported wholesale into cases of constructive dismissal. But the issue here is: did the Tribunal err in law in considering whether the sanction of demotion and a final written warning fell "within the range of options open to a reasonable employer"? When we pressed Mr Gorton on what the test is for determining whether a sanction short of dismissal can be regarded as a repudiation, he answered, correctly in our view, that it is whether the sanction was disproportionate.
15. Our impression that this is a distinction without a difference in a demotion case was confirmed by BBC v Beckett [1983] IRLR 43, to which the employment Tribunal were referred, and which is effectively indistinguishable on this point from the present appeal. Mr Beckett had committed an act of serious negligence, jeopardising the safety of his colleagues. He was removed from his post as a scenic carpenter but offered an alternative post of maintenance carpenter on a trial basis, which was unacceptable to him. He resigned and successfully claimed constructive dismissal. The EAT, Neill J presiding, held that the imposition of a punishment which is "grossly out of proportion to the offence" can amount to the repudiation of a contract of service. (The adverb "grossly" arguably adds nothing to "disproportionate" or "out of proportion to the offence", but that is a debate which can be left to another day.) The EAT went on to say that it was for the Tribunal to decide whether the penalty of demotion to maintenance carpenter was within the band of reasonable penalties which a reasonable employer might impose on a man with Mr Beckett's service with the BBC. They evidently treated the two wordings as interchangeable.
16. We consider that the Tribunal in Mr Bates' case asked themselves essentially the correct question and reached an answer which was properly open to them on the evidence.

Conclusion

17. We are grateful to both counsel for their assistance. Notwithstanding Mr Gorton's characteristically clear and realistic submissions, the appeal is dismissed.