United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR THOMAS RESTALL (Free Representation Unit) 6th Floor 289-293 High Holborn London WC1 7HZ
For the Respondent	MS YVE MONTAZ (Associate) Peninsula Business Services Ltd Litigation Department Riverside New Bailey Street Manchester M3 5PB


 


SUMMARY

CONTRACT OF EMPLOYMENT: Implied term/variation/construction of term

Tribunal failed to make key findings of fact in a constructive dismissal case as to whether incidents had occurred leading to a breakdown of trust and confidence.

HIS HONOUR JUDGE ANSELL

1. This has been a full hearing in respect of an appeal from a decision of a London South Tribunal chaired by part-time Chairman Ms Jenkins which took place in August 2007, the decision being promulgated on 31 October. The Tribunal rejected the claim for constructive dismissal.

Introduction

2. This appeal has had quite an unusual and somewhat chequered history because it was rejected twice on sift by my brother judges. On a further sift carried out by HHJ Serota QC he determined there was sufficient material for it to go to a full hearing which explains why it is now before us today.
3. The background facts are that the Claimant/Appellant had worked in the Norbury Day Nursery as an unqualified nursery assistant from September 2000. The nursery was sold to the Respondents in October 2006 and the Appellant's claim related to what she said was thereafter a breakdown of the relationship between employer and employee; a breakdown of the mutual trust and confidence following the arrival of the new owners.
4. The Claimant's case can really be summarised briefly by looking at paragraph 4 of the where she said this:

"I continued to perform my duties as I always had but I soon became very unhappy because the new manager seemed always to find fault with my work and made false accusations about me. I felt bullied and harassed when she mocked my English, humiliated me in front of colleagues, children and parents, and used abusive language when speaking to me. This became increasingly unbearable so I wrote a letter of grievance on 10^th November 2006."

Thereafter she details the nature of the relationship after that time causing her eventually to resign from her employment and claim constructive dismissal.

5. The Tribunal made what they described as findings of fact. The Claimant's witness statement had detailed a number of allegations of when she says that she was treated badly by her employer over the period, albeit quite a short period, between 1 November 2006 and 24 January 2007. That treatment according to her witness statement consisted of abuse, a threatening manner, the calling of urgent meetings, unreasonable criticism, embarrassment in front of parents and matters of that nature. The Notice of Appeal details around 21 incidents occurring up until the time of the resignation which the Appellant now says the Tribunal failed to make specific findings about.
6. The Tribunal's findings just dealt with the history of the involvement of the Claimant and the new owners over those two or three months. For example, in paragraph 8.10 they refer to the fact that the new owners instituted staff meetings which were minuted in which they laid down a number of policies and procedures they expected the staff to implement. The staff had been happy with the old arrangements and not unnaturally they resisted to making changes and were not co-operative as a result. However the allegations involved certainly one of those staff meetings - Mrs Hudda, the Respondent, adopting a threatening manner; telling the staff this was now her nursery and everything would be done the way she wanted - and at other meetings putting the staff under a lot of pressure by screaming and shouting at them.
7. Paragraph 8.12 dealt with a particular incident relating to the Appellant alleging that she had allowed the husband of a previous deputy manager into the nursery without informing Mrs Hudda who was concerned about security. The staff thereafter were told not to answer the front door of the nursery to allow people in. The decision records that there were a number of incidents thereafter but the findings of fact are singularly silent as to the specific allegations which are made by the Appellant, the cumulative total of which she says resulted in a completed breakdown of the trust and confidence between employer and employee. They do refer to the fact that at some stage the employers brought in an independent person, Ms Noble, to consider the grievances that the employee had lodged firstly on 10 November 2006. It is interesting to note that the grievance referred to in paragraph 8.14 referred to the manner in part to which she was spoken to by the employers but again the Tribunal failed to make any findings as far as that was concerned.
8. Paragraph 8.16 refers to some "misunderstanding" whereby "the Respondent thought the Claimant was to say if she needed to go home and the Claimant thought the Respondent would come back and ask her". Again paragraph 8.19 of the Tribunal's findings refer to a meeting after the Appellant had returned to work, a meeting with her and her husband to discuss grievances. In particular the employer accepted that the manager had a loud voice and could be abrasive in tone. In paragraph 8.21 there is a reference to staff being informed that there was now a complaints procedure in place.
9. Without going into detail of each and every paragraph it is right to say that there are singular lack of specific findings in relation to the matters which are now raised in the Notice of Appeal and which in fact were set out in the Appellant's witness statement and indeed were the subject, we are told, of considerable cross-examination in the course of the hearing.
10. The Tribunal's conclusions at 8.41 refer to the report prepared by Ms Noble saying her approach to the grievance was very balanced and her conclusions in summary were that there were issues on both sides. The key paragraph of the Tribunal's decision is paragraph 9.1 where the Tribunal said this:

"Having carefully considered all the facts, the Tribunal, mindful of the guidelines in Western Excavating and Sharpe, considered whether there had been an act or series of acts or omissions by the Respondents amounting to a fundamental breach of the Claimant's contract of employment. The Tribunal unanimously found that the Respondents' actions and or omissions did not amount to a fundamental breach of the Claimant's employment contract and that in fact the course of events, the behaviour of both parties and the parties' misunderstanding of each other led to a breakdown of the employment relationship."

11. That paragraph referred to "acts" or "omissions" on behalf of the Respondents but failed to set out what actions or omissions the Tribunal actually found had taken place. It also refers to "the behaviour" of both parties but again, looking back into the decision, there are not many specific findings about what the behaviour of both parties was that the Tribunal had in mind.
12. The Tribunal then go on not to "doubt the Appellant's trustworthiness and ability with children" and were

"appreciative that she found herself in a difficult position having her existing practices challenged and a new way of working imposed against the backdrop of what had to the Claimant been 'a second home' environment".

The decision goes on to speak of her work colleagues being resistant to change and choosing to leave; and equally it speaks of Mr and Mrs Hudda being under intense pressure to make sure that the nursery was being run in accordance with Ofsted regulations.

13. The decision, as we have indicated, did make reference to the report from Ms Noble and we were urged today by the Respondents to read into the Tribunal's decision that report. We therefore turn to it to see whether there were any clearer findings in that report as to the allegations that were being made by the Appellant but regrettably again whilst it is, as it were, a well-balanced report, there is a notable lack of findings on key issues. For example, in paragraph 17 Mrs Moghal is reported to tell Ms Noble that she was bullied and the report goes on:

"The Management team would argue that she was encouraged and reminded to carry out certain tasks, which may have been different previously. This was to improve the quality of standard within the setting. It is understandable that she may have perceived this as harassment or being treated unfairly, as she was in more contact with the Manager who worked alongside her."

Ms Noble later on says this:

"I do believe that the communication between the staff team, Mrs Moghal and the Management team had not been effective."

14. There is always a difficult line to tread in all Tribunal cases between those who would require Tribunals to make findings on each and every allegation and those who say that there has to be simply the bare minimum in terms of letting parties know why they have won and lost, and there are of course numerous authorities that give guidance to Tribunals as to how judgments should be framed. However, we have to remind ourselves that this was a case where the allegation was a breakdown of the trust and confidence between employer/employee arising from what was said to be a number of incidents spread over a period of around three months. It seems to us that it was necessary for this Tribunal, if not to deal with each and every allegation by itself, certainly to make clear enough findings and to give reasons for those findings in relation to the overall nature of the complaints being made by this Appellant. That may have simply required the Tribunal to put together similar allegations that involve, for example, unreasonable criticism or embarrassment in front of parents and to make findings as far as they were concerned. An alternative method may have been to make findings as far as the credibility of the parties were concerned with sufficient reasons as to why they came to a view on credibility, although that of course may not have been appropriate in this case because this Tribunal did come to a view about the trustworthiness of the Appellant and, therefore, if they were going to doubt her credibility on specific issues it may well have been necessary then for the Tribunal to go into some detail onto the specifics of each allegation.
15. We are quite satisfied that these allegations were firmly in front of the Tribunal. They were in the witness statements and they were subject to cross-examination and in part certainly referred to in the Appellant's closing submissions before the Tribunal, a copy of which we have seen.
16. The Respondents argue that the Tribunal in this case have effectively rejected the more serious allegations made by the Appellant without specifically saying so. They argue that it could be read into their decision where they refer, for example, in paragraph 9.1 to it being a misunderstanding between the parties leading to a breakdown of the employment relationship. However, when one balances that against the next paragraph which speaks about the Appellant's trustworthiness we feel that it was incumbent on this particular Tribunal to make sufficient findings on the key allegations concerning the way that this employee was treated, the way that she was spoken to, attitudes when she was unwell, the circumstances of what happened when she returned to work, for a conclusion to be properly drawn as to whether or not she had been treated in such a way that it could be argued that the implied term of trust and competence had been broken.
17. Regrettably we are unanimously of the view that this Tribunal failed to make those specific findings and/or give reasons for coming to that conclusion in respect of the matters which are set out in the Notice of Appeal the so-called 22 facts. We are not saying that all those 22 had to be dealt with in individual detail but there are sufficient allegations there to require attention. The Tribunal's decision, particularly the findings of fact, appears to "sit on the fence" far as those key matters are concerned and that is not sufficient for a Tribunal decision where the allegation is one of constructive dismissal. Therefore we are left in no doubt this decision is therefore deficient.
18. We are, therefore, left with a choice as to what action we should take. One view is to remit it back to the same Tribunal; after all, they have heard the evidence, for them, as it were, to fill in the gaps but the gaps are substantial. They are substantial findings of fact that are required and therefore a possible reconsideration in the light of those findings as to whether they come to the same view on constructive dismissal. The danger is, as counsel for the Appellant put it, that as was set out in the case of Barke v Seetec Business Technology Centre Ltd [2005] EWCA Civ 578 that the supplementary reasons would be reconstructions of proper reasons rather than the unexpressed actual reasons for the Decision. The other advantage of sending it back to the same Tribunal is that they might retain some memory or notes of the evidence that was given. That should be balanced against the expense of having to send the matter off for a complete fresh hearing.
19. However, at the end of the day we are of the view that regrettably the deficiencies in this decision are considerable and for that reason, and for the dangers that there will be a reconstruction by the Tribunal, we have decided the matter will have to be remitted to a fresh Tribunal for a rehearing.
20. So, our order is that the existing Tribunal's decision is set aside and the matter is remitted for a fresh hearing to a Tribunal. Perhaps this, with simply a note of warning to the Appellant that our decision in no way is a decision on the merits of her claim and she should not see this decision as holding out any particular hope that she is going to succeed if and when there is a rehearing. It will be entirely a matter for the Tribunal. We are merely sending it back because the Decision presented to us is deficient.