United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CHRISTOPHER HOWELLS (of Counsel) Instructed by: Messrs Irwin Mitchell LLP Solicitors Imperial House 31 Temple Street Birmingham B2 5DB
For the Respondent	MR GRAHAM WATSON (of Counsel) Instructed by: Messrs Bevan Brittan LLP Kings Orchard 1 Queen Street Bristol BS2 0HQ


 


SUMMARY

UNFAIR DISMISSAL

Constructive dismissal

The Employment Tribunal erred in finding that there was a constructive dismissal on the wrong basis.

Compensation

The Employment Tribunal's reasons failed to explain whether or not the constructive dismissal was fair or unfair, and why the Employment Tribunal was entitled to limit compensation to the contractual period. The issue of remedy and constructive unfair dismissal to be remitted to the Employment Tribunal for further consideration all possible outcomes to be considered.


 


THE HONOURABLE MR JUSTICE WILKIE

Procedural history

1. The procedural background to this appeal is somewhat complicated.
2. The Claimant made a claim to the Employment Tribunal on 22 January 2008 numbered 1700150/08 (claim 150) and on 3 September 2008 made a separate claim number 1701686/08 (claim 686). In claim 150 he complained that he was unfairly dismissed by the Respondent, Northern Devon Health Care NHS Trust on 19 November 2007. In claim 686 he claimed that he had been constructively unfairly dismissed on 15 May 2008.
3. In each claim he also complained of detriment as a result of having made protected disclosures on 27 April 2006.
4. The Respondent put in a response to the claims in a single document. In that document it was alleged that, although the Claimant had been dismissed on 19 November 2007, he had subsequently been reinstated. By way of response to that assertion, by further and better particulars of claim 150, the Claimant withdrew his claim of unfair dismissal in respect of the "dismissal" of 19 November 2007 though he continued with his claim to have suffered detriment as a result of having made protected disclosures.
5. That was the basis on which an Employment Tribunal, sitting at Exeter, on 5 days between the 14 and 22 May 2009 came to certain conclusions, namely:

i) That the Claimant had suffered a detriment as a result of making the protected disclosures on 27 April 2006; but

ii) That he had never in fact been reinstated.

6. On 30 November 2009 the same ET Panel conducted a review of its earlier decision. That was undertaken on the basis that, unknown to the ET at its earlier hearing, Employment Judge Toomer, at a case management discussion on 2 November 2008, had concluded that, contrary to the conclusion reached by the ET in May 2009, the Claimant had, in fact, been reinstated in May 2008. The Tribunal unanimously concluded that the interests of justice required a review of its decision on the matter of reinstatement. They had regard to the views expressed by Judge Toomer on 2 November 2008 which, the Tribunal concluded, constituted a finding of fact, binding on them, that the Claimant had been reinstated. Further, the Claimant, by withdrawing his claim for unfair dismissal in respect of the events of 19 November 2007, had acted in reliance upon that finding. The Tribunal concluded that it would be inappropriate to ignore or vary that finding of fact. Accordingly they allowed an application for a review. At the same time they increased the award they had previously made in respect of detriment from £7,500 to £10,000.
7. Arising out of that review the Tribunal found that the Claimant had been constructively unfairly dismissed on May 15 2008 and made an award in the sum of £1107.69p.
8. On 6 July 2010 the Claimant appealed the decision of the Employment Tribunal that, notwithstanding that he had been constructively unfairly dismissed, nonetheless the Respondent could fairly have dismissed the Claimant as at the date of his actual resignation for "some other substantial reason" so that the Claimant's losses in respect of his constructive unfair dismissal was limited to the 5 weeks payment in lieu of notice which would have been the necessary basis for a fair dismissal on that date.
9. The appeal, attacking that conclusion of the ET, followed a rule 3(10) oral hearing on 7 July 2010 at which the Appellant was represented by Ms McCann under the ELAAS scheme.
10. On that same date the Employment Appeal Tribunal posed a series of questions for the Employment Tribunal to respond to, to which we will return.
11. On 22 July 2010 the Respondent provided a response to the amended appeal of Mr Cox. That response included a cross-appeal to the effect that the decision of the Employment Tribunal that the Claimant had been constructively unfairly dismissed was erroneous in law or perverse.
12. On 29 October 2010 the Tribunal responded to the EAT schedule annexed to its order of 8 July.

The facts as found by the ET in the May 2009 decision

13. The Claimant was born in 1955, and was employed by the Respondent as a semi-skilled maintenance worker on 24 June 2002.
14. The Claimant raised various matters by way of grievance which he did not consider to be satisfactorily resolved. He therefore made a "whistle blowing" disclosure to Catherine Oliver the HR Director of the Respondent on 27 April 2006.
15. The Respondent did not follow its own whistle blowing policy in respect of his disclosure. It did not tell him who was handling the matter, how he or she could be contacted, or how it was proposed to handle it. It did not provide him with any feedback until 22 May 2008, some two years later.
16. In fact, the Respondent referred the disclosure to its internal auditors and did nothing further, notwithstanding that it raised serious health and safety issues.
17. As time went by, the Claimant came to believe that his disclosures were being ignored and became frustrated and anxious.
18. On or about 1 November 2007 Mrs Kelly, the Chief Executive of the Respondent, informed Mr Roy, its Director of Facilities, that recent audits had been carried out as a result of disclosures by a whistle blower in Mr Roy's department. Mr Roy attended a trust link meeting at which he stated that recent audits and investigations by the audit team arose from allegations made by a member of his department. The Claimant was a member of Mr Roy's department.
19. On 2 November 2007 the Claimant wrote to Mrs Oliver of HR. He complained that on 1 November 2007 Mr Roy had announced, at a general meeting of his work force, that audit had completely exonerated the estates management department of allegations made by a member of the work force, that this had given rise to unrest and bad feeling and that his supervisor was conducting witness interviews to find out who the whistle blower was. The Claimant's interview for that purpose was scheduled for the 5 November.
20. He complained that he had been put in the position of either lying about being the source of the complaint, or breaking his own confidentiality. He complained that this was precisely the kind of dilemma that the trust's whistle blowing policy was supposed to prevent. He expressed outrage at being backed into a corner in this way and indicated he would withdraw his services until he could take union advice. He sought to register a further series of grievances including failure properly to investigate his complaints and a failure to comply with its policy on whistle blowing.
21. There was then an abortive attempt to have the Claimant attend a meeting with Mrs Oliver in which wires became crossed. Mrs Oliver concluded from this that the Claimant did not wish to continue his employment and Mr Roy wrote to him on 19 November 2007 confirming that that was the last day of his employment.
22. Following that, the Claimant, amongst other things, filed an application 150 claiming unfair dismissal and detriment.
23. Following this "termination" of his employment, and whilst pursuing an internal appeal, the Claimant went public with his complaints with the media and many regulatory authorities including the Health and Safety Executive.
24. After an internal appeal the Respondent concluded that its decision to treat his employment at an end was not reasonable and an arrangement was made to restore the Claimant to the pay roll with effect from 19 November 2007 prior to any formal agreement being reached on terms of reinstatement.
25. During April and May there were many discussions between the parties which demonstrated that the Respondent was not willing to reinstate the Claimant in his previous position and that the complainant was unwilling to be redeployed or to cease communicating with the various authorities with whom he had been in contact since his "dismissal" on 19 November 2007.
26. On 15 May 2008 the Claimant tendered his resignation. He claimed that he had been constructively dismissed because the Trust was not prepared to reinstate him into the role which, he said, they had offered and he had accepted.
27. The Tribunal found, in that decision, as a fact, that there was no unconditional offer of reinstatement which had been made or accepted, that the parties were never ad idem as to the terms on which he might be reinstated or re-employed and concluded that there was no new contract between them after the termination of the original one on 19 November 2007. That decision was reversed on review.
28. The ET, in that first decision, concluded that the Claimant had suffered a detriment as a result of making the protected disclosures on 27 April 2006, those detriments were enumerated by them as follows:

i) Failure to follow its whistle blowing policy leaving the Claimant in suspense for nearly two years, that was said to be the direct cause of the Claimant's frustrations and anxiety which gave rise to subsequent disclosure to outside bodies all of which led to the breakdown of trust and confidence between Claimant and Respondent.

ii) Failure to have proper regard to the confidentiality of protected disclosures leading to his potential identification as the whistle blower.

iii) Failing to provide feedback leading to the Claimant's reasonable belief that they were not taking his disclosures seriously.

iv) The Respondent's attempts to discredit the Claimant in a letter from the Chief Executive to an MP to the effect that all the problems raised had been investigated and assessed as low risk. This statement was not true. The Tribunal found that the Respondent had further sought to discredit the Claimant by portraying him in a letter dated 28 February 2008 to a senior NHS official as vexatious and having the intention of having his manager sacked.

v) On 24 April 2008 the Respondent produced a detailed report describing the complainant's disclosures as unsubstantiated and vexatious. This was contrary to the position which the Respondent took at the Tribunal where they conceded that they were qualifying disclosures about health and safety issues and were made in good faith.

29. The Tribunal took all those matters into account when making an award for injury to feelings which they took as being the midway point in what may be regarded as the medium band for awards which they initially quantified as £7,500 but subsequently upgraded to £10,000.
30. The Tribunal noted that the Claimant had withdrawn his claim that he had been unfairly dismissed on 19 November 2007. This was on the basis that he accepted that he had been reinstated. The Employment Tribunal decided, in that decision, that he had not, in truth, been reinstated in May 2008. Thus the Employment Tribunal appears to have dismissed the unfair dismissal claim based on the alleged constructive dismissal in May 2008. It observed that it had no unfair dismissal claim to adjudicate on in respect of the earlier "dismissal" in November 2007, but that, in any event, the Claimant had in fact been fully paid for the period between 19 November 2007 and 15 May 2008. Furthermore, they concluded that, as of May 2008, there was such a total and mutual loss of trust and confidence between Claimant and Respondent that there was no prospect of the Claimant's employment continuing thereafter. It concluded that the employment (if it had existed) could fairly have been brought to an end at that point for some other substantial reason.

The position following the review

31. The Tribunal, by its decision of 30 November 2009, reversed its finding that there had been no reinstatement as of May 2008. Accordingly, it concluded that there was a contract in being which was continuous until May 2008.
32. The Tribunal had to deal with the constructive dismissal claim. It pointed out that the Claimant had to satisfy them there had been some fundamental breach of contract or a loss of trust and confidence by the Claimant in his employer so as to make his continued employment impracticable.
33. The context of his resignation was the offer of redeployment to the IT department with the only alternative being for him to take unpaid leave. This was on the basis that the Respondent took the view that it was impracticable for him to be re-employed within the estates department.
34. The ET concluded that for him to be redeployed in the IT department without his agreement, with the alternative that he remain employed but on unpaid leave, did constitute a fundamental breach of contract. Accordingly there was a dismissal which, by implication, the Tribunal concluded was an unfair dismissal.
35. However, the Tribunal, consistent with its previous findings concluded that there existed a total and mutual loss of trust and confidence to the extent that there was by May 2008 no prospect of the Claimant's employment continuing thereafter and that the Respondent had made extensive and bona fide efforts to redeploy the Claimant who had declined the position offered. The Tribunal, therefore, concluded that, had the Claimant not resigned (thereby triggering the constructive unfair dismissal), he would have been dismissed and would have been paid 5 weeks in lieu of notice. On that basis the ET awarded him, it would appear as compensation for unfair dismissal, 5 weeks pay which amounted to £1107.69. They made no basic award as there would have been a fair dismissal on that date, albeit with 5 weeks notice, for a legitimate reason namely some other substantial reason.

The order of the EAT of 8 July

36. Question 3: posed by the EAT, asked the ET to clarify whether it made any findings in respect of the following issue "whether the Respondent also fundamentally breached the Claimant's contract of employment by announcing that the Claimant would not be returning to the Estates department when that matter was still under discussion".

Question 5: posed by the EAT was as follows – "Given that the ET has concluded that the Respondent's conduct repudiated the contract of employment entitling the Complainant to terminate the contract, on what grounds does the ET maintain that the Respondent would have been acting reasonably in treating the "total and mutual loss of confidence" as a sufficient reason to dismiss the Claimant in all the circumstances such as the Claimant should not be awarded any compensation in respect of his dismissal?

Question 6: was as follows – "was the reason, or principal reason, for the total and mutual loss of confidence between the parties the fact that the Claimant had made a protected disclosure?" The EAT pointed out that the ET had made findings that the Claimant was subject to detriments by reason of his protected disclosure but did not appear to have made any findings or determinations on whether the Respondent's repudiatory conduct was by reason of his protected disclosure.

Question 7: was - whether, in light of the answers to questions 5 and 6, the Claimant should be awarded any compensation and, if so, whether there should be a remedies hearing.

The memorandum of the ET dated 29 October 2010

37. The ET responded as follows:

i) In respect of Question 3: the Claimant's contract of employment provided that "any fundamental change of duties and/or responsibilities and/or work pattern would be subject to agreement". The announcement on 6 May 2008 that the Claimant would not be returning to the Estates department was a breach of contract, however the Claimant had absented himself from that department on 6 November 2007. In view of the serious allegations he had made and his fear of physical violence from his mangers and the fact that he had not returned to work in that department, the Tribunal did not find that the announcement of 6 May 2008 was a fundamental breach of contract, the fundamental breach they had identified was giving him the option to join the IT department without his consent or to go on unpaid leave.

ii) In relation to questions 4 and 5: the Tribunal had concluded that, by November 2007, there was no possibility of the employment continuing for the benefit of either party and that this was not due to his original whistle blowing. The Claimant had no respect for his managers whom he perceived as incompetent and the Respondent had no trust in the Claimant not to do his best to damage it in any way possible. The Tribunal, on reviewing its original decision, had found that the Claimant had been reinstated, but had not worked during the period between November 2007 to May 2008. In April 2008 the Chief Executive had written to the Claimant, on his reinstatement, reminding him of the obligations of his contract of employment, but the Claimant, by continuing to make complaints outside the terms of the whistle blowing policy and by being determined to "finish what he had started", had indicated that he did not regard himself as bound by his terms and conditions of employment. This was confirmed by him saying on 6 May that he would finish what he had started, a statement the Tribunal found was a fundamental breach of contract on his part. Accordingly no further compensation was appropriate.

iii) Question 6: the Tribunal concluded that the repudiatory breach by the Respondent of 6 May 2008, confirmed by a letter of 9 May 2008, was prompted not by the whistle blowing but by the recognition that there was a total and mutual loss of trust and confidence which made the continuation of employment impracticable. The Tribunal did not consider any further amount of compensation to be appropriate.

The amended grounds of appeal

38. This arose out of the ET's review decision. It is said that the ET erred in law and/or was perverse in finding that, whilst the Claimant was constructively unfairly dismissed, nonetheless the Respondent could have fairly dismissed the Claimant as of the date of his actual resignation for some other substantial reason so as to confine the Claimant's loss to 5 weeks payment in lieu of notice. It stated that it was an error of law/ was perverse to find there was a fundamental breach of contract such that the Claimant was entitled to terminate without notice, by giving the option of redeploying to IT or being on unpaid leave, but failing to find that the announcement that the Claimant would not be returning to the Estates department was a fundamental breach of contract.
39. It also attacked the Tribunal for failing to consider whether the dismissal was reasonable and for adopting its original conclusion that there could have been a fair dismissal on that date. Had they properly considered the law they would have concluded that the Respondent could not fairly have dismissed the Claimant for some other substantial reason. It was the Respondent's conduct which led to the complete breakdown in trust and confidence. Accordingly it was said that the ET should be required to re-assess the issue of remedy.
40. The amended Notice of Appeal also attacks the Tribunal for failing to decide whether the fundamental breach of contract by the respondent was on grounds of the Claimant's protected disclosure.

The submissions of the parties

The Appellant's submissions

Constructive dismissal

41. The Appellant argues that the ET was wrong in law or perverse in concluding that, whilst the Claimant was constructively unfairly dismissed, the Respondent could have fairly dismissed him as at the date of his resignation by giving 5 weeks payment in lieu of notice.
42. First, he argues that there was no rational basis for the ET to conclude that the decision to prevent the Claimant's return to the Estates department, though a breach of contract, was not a fundamental breach in the light of everything that had happened since 6 November 2007. Essentially that is because it is said that the poisonous atmosphere in the estates department had been generated by the Respondent's action in breaching the confidentiality of its whistle blowing policy thereby, implicitly, revealing the Claimant as the source of the allegations and exposing him to the hostility of his managers.
43. Second it is said that it is inconsistent for the ET to find, as it did in its original decision, that the Claimant making disclosures to outside bodies, which led to the breakdown of trust and confidence between the parties, was directly caused by his frustration and anxiety as a result of the failure of the Respondent to follow its whistle blowing policy, but, by its memorandum to the EAT, to say that the fact that by November 2007 there was no possibility of employment continuing for the benefit of either party was not due to the Claimant's original whistle blowing. It is said that the breakdown in the mutual relationship could only be laid at the door of the Respondent's conduct in relation to his whistle blowing, and their act of terminating his employment in November 2007 which released him at the time from any constraints of his contract of employment, notwithstanding its subsequent reinstatement. In effect, the Appellant argues that the breakdown in trust and confidence was solely the result of the Respondent's failure to comply with its whistle blowing policy and, accordingly, a dismissal for some other substantial reason, being that breakdown of trust and confidence, would inevitably been unfair.
44. In respect of the Public Interest Disclosure Act claim, it is said that the causal link between the breakdown of trust and confidence and the failure by the Respondent to comply with its own whistle blowing policy meant that the Tribunal could only, logically, conclude that the dismissal was automatically unfair under s.103A of the Employment Relations Act 1996 because the principal reason for the Respondent's repudiatory conduct was that the Claimant had made the protected disclosure on 27 April 2006.

The Respondent's submissions

45. The Respondent contends that the Tribunal was entitled to conclude that, had the Claimant not resigned on 15 May 2008 by reason of repudiatory breach by the Respondent, the Respondent would have fairly dismissed the Claimant with 5 weeks' notice for some other substantial reason and that such conclusion is sustainable on the evidence namely:

i) By 6 May 2008 it had been announced that the Claimant would not be returning to the estates department, a unilateral offer of work in the IT department had been made and the Claimant had stated that he would "finish what he had started".

ii) In those circumstances it was inconceivable that the employment relationship could have continued and, in any event the Tribunal had found that, by November 2007, there was no possibility of the employment continuing for the benefit of either party. The reasons for this were separate from the initial whistle blowing - in particular the statement that the Claimant would "finish what he had started".

iii) By implication it would not have been just and equitable for any award of compensation to have been made beyond the contractual notice payment.

Submissions on the cross appeal

46. The cross appeal attacks the finding of the ET that there was a constructive dismissal in May 2010. It is on the basis that the alleged breach relied on in the letter of resignation concerned the failure to implement an agreed return to work in the estates department. The Respondent says that the evidence at the ET from the Claimant was that he did not require to return to work at that department so he could not have resigned by reason of that alleged fundamental breach. It also attacks as perverse the conclusion that, despite the finding that there was a total and mutual breakdown in trust and confidence which precluded the Claimant's return to the estates department and the extensive and bona fide efforts to redeploy the Claimant, the offer to work in the IT department or go on unpaid leave was a fundamental breach of contract.
47. The Respondent says that the decision that the unilateral offer to work in the IT department or continue with unpaid leave constituted a fundamental breach of contract was unsupported on the Tribunal's findings of fact namely: that by December 2007 there was no possibility of employment continuing for the benefit of either party and there was a complete and mutual breakdown of trust and confidence between the Claimant and Respondent, that the Respondent had made extensive and bona fide efforts to redeploy the Claimant and the Claimant had stated that he would finish what he had started and so he was in fundamental breach of contract. In those circumstances it is said that characterising the making of a unilateral offer to work in the IT department or go on unpaid leave as a fundamental breach of contract is perverse.
48. As a separate argument in their skeleton, they contend that the resignation of the Claimant was not by reason of what the Tribunal has characterised as the fundamental breach namely the offer of the IT department or unpaid leave. It is said that the resignation letter cites a failure to return him to the estates department as the cause of the termination and it is said that his evidence was that any maintenance position with the Respondent would have been acceptable thus there is no causal link between the fundamental breach found and the cause of the resignation.
49. The Appellant in response to the cross-appeal points to the fact that the offer, without prior agreement, of a position in IT or to take unpaid leave was in breach of an express term of contract that such a decision required the Claimant's consent and that it was open to the ET to conclude that that breach was fundamental. The Appellant contests the contention that his evidence was to the effect that he was prepared to work in a department other than the Estates department. Even if that had been the case, he says that it did not entitle the Respondent to unilaterally place him within the IT department.

Our conclusions

50. We uphold the cross-appeal to a limited extent. It seems to us that the Employment Tribunal was wrong in attributing the reason for the resignation to be the fundamental breach of contract which it found. It seems to us to be clear that the reason for the resignation was focussed on the refusal to reinstate him into a job in the Estates Department. The fundamental breach found by the Tribunal was a different breach to that.
51. However, we uphold the appeal to the following extent. First, in our judgment, the Tribunal was wrong in law not to characterise the unilateral change in his work away from working in the Estates Department without agreement as a fundamental breach of contract. The breach of contract which they found, by requiring him to work in the IT Department, was, rightly, characterised as a fundamental breach of the term that they could not change his work without agreement. By parity of reason the announcement that he would not be permitted to return to the Estate Department work must also have been a fundamental breach.
52. We find both the cross-appeal and the appeal succeed to this further extent, that each side has correctly criticised the Tribunal for failing, explicitly, to address the question whether the constructive dismissal, which it found, was a fair or an unfair constructive dismissal. We think that the reasoning in relation to that is so scanty that it is not possible for us to decide whether or not it found that it was fair or unfair and if so why. That is an issue which will have to be sent back to the Employment Tribunal to determine.
53. Similarly, in our judgment, the appeal succeeds in that the reasoning of the Tribunal, in support of its conclusion that it should limit the amount of the remedy to the notice period, is so scanty that it is not possible for us to say whether that is a conclusion which was sustainable on the evidence. We have been taken by the parties helpfully through correspondence starting with 13 March 2008 and ending with 16 May 2008. Any proper consideration of remedy must address the issues whether there would have been a fair dismissal at some point, and if so when, whether the responsibility of the Respondent for what transpired was such that compensation should be at large and or whether there should be any adjustment to take account to the contribution of the Claimant by his conduct and statements. Consideration of these issues must involve consideration of that correspondence, as well as the other evidence. That correspondence is barely touched upon in the Tribunal's various reasons. Some of the letters are long, complicated and problematical. It seems to us that this whole issue of remedy and all the various factors to which we have referred should be sent back to the Tribunal for further consideration since the reasons which have been provided do not provide any sensible basis for concluding whether or not the Tribunal's conclusions were right.
54. We do feel in a position to say, however, that it is, on the face of it, a startling proposition to contend that the employer would have fairly dismissed the Claimant on the very day that that he resigned in response to a fundamental breach of contract so as to limit compensation to the period of contractual notice beginning on that day. We point out that it is clear from the correspondence that the Respondents had by no means set their face against the Claimant returning to the estates department, albeit they anticipated that there would have to be some assistance from external mediation. It would be surprising if it were to be open to a Tribunal to conclude that the events after the letter of 13 March were such as to foreclose that option. A further issue for the Tribunal to consider is the likely time taken to complete any relevant NHS dismissal/appeal procedures.
55. However, we are acutely aware we did not conduct the hearing, we did not hear the witnesses and we have only had sight of a limited amount of the documentation. It is, therefore, open to the Tribunal to reach that decision if it properly can on the basis of a fully reasoned decision. Equally, the other options: that the remedy is at large, or is limited in time, or there should be a deduction for contribution, are all open to the Tribunal upon reconsideration after remission.

Outcome

56. The appeal and the cross appeal are upheld to the extent referred to above and the case is remitted to the same Tribunal for further consideration on the matters referred to above. That consideration will be on the basis of submissions, though no further evidence may be called. Time estimate one day.