At the Tribunal | |
Before
THE HONOURABLE LADY SMITH
MRS A HIBBERD
MR J KEENAN MCIPD
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR A HARDMAN (Advocate) Instructed by: Russel & Aitken King's Court High Street Falkirk FK1 1PQ |
|
For the Respondent | MR J CUNNINGHAM (Representative) Croner Consulting Croner House Wheatfield Way Hinckley Leicestershire LE10 1YG |
SUMMARY
UNFAIR DISMISSAL: Constructive dismissal
DISABILITY DISCRIMINATION: Reasonable adjustments
The Tribunal's finding that claimant not unfairly dismissed upheld where employee resigned on account of conduct of a director of the respondents towards other employees. Appeal against dismissal of disability discrimination claim also dismissed where not established that the respondent knew or ought to have known of the claimant's disability.
THE HONOURABLE LADY SMITH
Introduction
Background
"The claimant did not consider himself to be a target of Darren's intimidation and was not scared of him." (paragraph 2(i))
"…things were a bit better." (paragraph 2(y)).
On 7 November 2007, a verbal altercation occurred between Darren Cartwright and the claimant. Darren was in a bad mood. He was angry that designs were not showing up on a computer disk and swore. He found that there was no grease on a particular machine and shouted at another employee in respect of that. He sent him away and observed:
"What the fuck is that? You know how much that costs".
The claimant was present and said:
"What the fuck is wrong with you? I am going to Citizen's Advice. You are a fucking arsehole."
Darren replied:
"Just fuck off then."
The claimant did not return to work.
The Tribunal's Judgment
"The Tribunal considered that the behaviour of Mr Cartwright, including the language used, could potentially have amounted to a repudiatory breach had it been targeted at the claimant. However the claimant was frank that his main concern was how Mr Cartwright behaved to others. The incidents given were the paint incident, the bonus incident and the incident on 7 November. The only other specific incident mentioned was a concern that Mr Cartwright made a bed for his child on company time and that this held up production. Other than that, the complaints were about general bad temper and swearing. The claimant did not perceive this as being directed at him particularly and did not give details of any specific incidents where Mr Cartwright's behaviour had been directed at him. Had he done so, the Tribunal would probably have had little hesitation in finding that there had been a breach of the implied term of trust and confidence. However on the evidence presented to it, and bearing in mind that the onus of proof is on the claimant to establish the breach, the Tribunal has been unable to find such a breach."
The Tribunal accepted that the claimant had found it extremely difficult to work beside Darren Cartwright and disapproved of the way he spoke to others. It also found that the claimant was, as a matter of fact, suffering from stress and depression which contributed to his inability to cope with Darren Cartwright's behaviour. At paragraph 34, the Tribunal continued:
"However the Tribunal does not find that it has been proved that the employer's conduct, through the actions of Darren Cartwright, when viewed objectively was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and this particular employee."
Relevant Law
"I do not accept the liquidator's submission that the conduct of which complaint is made must be targeted in some way at the employee or a group of employees. No doubt that will often be the position, perhaps usually so. But there is no reason in principle why this must always be so. The trust and confidence required in the employment relationship can be undermined by an employer, or indeed an employee, in many different ways. I can see no justification for the law giving the employee a remedy if the unjustified trust destroying conduct occurs in some ways but refusing a remedy if it occurs in others. The conduct must, of course, impinge on the relationship in the sense that, looked at objectively it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances."
At paragraph 60, in response to the liquidator's argument that the dishonest behaviour of the bank was directed at the defrauding of third parties and therefore could not amount to a breach of the implied obligation owed to the employees, he said:
"The conclusion is not warranted by the premise. 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 involve instances of conduct which might be described 'as conduct involving rather more direct treatment of employees': 1966. ICR 406, 412. So be it. But Morritt L.J. held that the obligation (p.441B-C):
"….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. The motives of the employer cannot be determinative, or even relevant, in judging the employees' claims for damages for breach of the implied obligation. If conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise."
"Adjustments should have been made either to Darren Cartwright's style of management or to the claimant's exposure to that style."
No such duty could arise unless the claimant established that, at the relevant time, he was "disabled" within the meaning of the Disability Discrimination Act 1995; the respondents conceded that the claimant was in fact disabled at the relevant time. That, however, is not an end of the matter. For the duty to make reasonable adjustments to arise, the provisions of s.4A must apply:
"4A
(1) Where –
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.
…
(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –
(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or
(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)."
We would refer to the interpretation of s.4A (3) provided by this Tribunal in the case of Secretary of State for the Department for Work and Pensions v Alam UKEAT/0242/09/LA at paragraphs 14-20, in particular at paragraph 17, where the questions that for the purposes of s.4A (3) require to be addressed are identified as being:
"1. Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A (1)? If the answer to that question is: 'No' then there is a second question, namely,
2 Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A (1)?"
Discussion
"…The claimant was frank that his main concern was how Mr Cartwright behaved to others."
We should add that we have had regard to the Tribunal's comments in the first half of paragraph 34 that they accepted that the claimant found working beside Darren Cartwright "extremely difficult" and that he "disapproved" of the way he spoke to others. However, in so far as the claimant getting to the stage that he could not cope with Darren Cartwright's behaviour anymore was concerned, the Tribunal found that that was contributed to by the fact that the claimant was suffering from stress and depression and there is no suggestion of any causal link between Darren Cartwright's behaviour and the claimant suffering from those conditions.
"Although Darren Cartwright knew there was a problem in 2004 he believed that this had been resolved."
was perverse. Mr Hardman submitted that that comment was contrary to the findings in fact and not based on any evidence heard by the Tribunal. As to the former, he referred us to the findings in fact at paragraph 2(l):
"The claimant got time off to see Mr Wilson once every 4-6 weeks. This was agreed with Darren who knew he was getting counselling. The claimant told him he was suffering because of his hours of work and lack of family time."
The Mr Wilson referred to is a behavioural psychologist. No application was made to this Tribunal for a note of Darren Cartwright's evidence. However, in the course of submission Mr Hardman referred to the claimant having said in evidence that he told Darren Cartwright that he was seeing a behavioural psychotherapist for pressure at work, problems with sleeping, hours at work and lack of family time. He referred to Darren Cartwright having given evidence to the effect that he was not aware of the claimant having medical treatment; he knew the claimant saw somebody after a friend had committed suicide and it was not a "quick fix". Rather it took more than just a few months but he believed the claimant had got past that. The reference to a friend's suicide was, as found by the Tribunal that a friend of his had committed suicide in 2004 following which he had been referred to Mr Wilson. That summary of the evidence given was not disputed on behalf of the respondents.
Disposal