United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0361/10/RN

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

At the Tribunal

On 29 July 2011

 

 

 

Before

THE HONOURABLE MR JUSTICE WILKIE

MS K BILGAN

MR T HAYWOOD

 

 

 

 

BUZZACOTT LLP APPELLANT

 

 

 

 

 

 

MRS T ELLIS RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR JEFFREY JUPP (of Counsel) Instructed by: Messrs Levenes Solicitors Cromwell House 14 Fulwood Place London WC1V 6HZ
For the Respondent	MR CHARLES DAVEY (of Counsel) Instructed by: Forum Law Solicitors Avon House 435 Stratford Road Shirley B90 4AA

 

 

SUMMARY

UNFAIR DISMISSAL – Constructive dismissal

 

The Employment Tribunal was entitled, on the evidence, to make the findings is did about certain matters of complaint made by the Claimant and as a matter of law to conclude that cumulatively they amounted to a breach of the implied term of trust and confidence so as to give rise to a constructive dismissal.

THE HONOURABLE MR JUSTICE WILKIE

Introduction

1.              This is an appeal by Buzzacott LLP against decisions of the Employment Tribunal held at London Central between 8 and 16 March 2010 that the Claimant, Mrs Tara Ellis, was constructively unfairly dismissed by the Appellant, and that she was unlawfully discriminated against by the Appellant by way of victimisation.  The Claimant had, in addition, made a claim of direct sex discrimination by way of harassment, which was dismissed.

 

The Employment Tribunal decision – the facts

2.              The Tribunal identified, at the outset of its Reasons, a series of incidents which, the Claimant said, cumulatively comprised a breach of the implied term of mutual trust and confidence, and it set out those 12 incidents.  In the event, in their decision, the Tribunal either found in favour of the Appellant, or did not find in favour of the Claimant, in respect of nine of these incidents.  However, the Tribunal did find in favour of the Claimant in respect of three of the incidents, and, furthermore, concluded that, cumulatively, the facts, which the Tribunal found to be established, constituted a fundamental breach of the implied term of mutual trust and confidence such as to entitle the Claimant to resign. They also found that she did not affirm her contract or waive any breach, by reason of delay, prior to her having written her resignation letter on 20 April.

 

3.              The three matters upon which the Tribunal found in favour of the Claimant were described in the summary of the factual issues as follows:  (9) on 27 March 2009; Fleur Turner, with the knowledge and consent of Cheryl Gowdie, Head of HR, warning the Claimant that, if she escalated her grievance into a formal grievance, and no further evidence was found, her complaint could be deemed malicious and she could face disciplinary proceedings; (10) on 30 March 2009; Anthony de Lacey, informing the Claimant that her promotion was on hold indefinitely, notwithstanding the completion of the informal grievance investigation; (12) by letter dated 9 April 2009; Cheryl Gowdie warning the Claimant that, unless she was able to return to work in the foreseeable future, the Respondent would have no choice but to review whether her employment would be continued.

 

4.              The Tribunal, in addition, identified, for the purposes of their consideration of victimisation, that the protected act relied upon was the complaint the Claimant made about Simon Jones’ treatment of her, and the Respondent’s failure to deal with that. Her complaint was an act alleging sex discrimination.  The detriment alleged by her was said to be the threat of disciplinary proceedings and the postponement of her promotion. However, the Tribunal found that a further detriment which she had alleged, namely her exclusion from the Respondent’s email system, was not established as a matter of fact.

 

5.              The Tribunal, in paragraph 4 of their decision, set out their findings of fact in 14 numbered sub‑paragraphs.  The first paragraph set out the background.  The Claimant had begun her employment with the Respondent, which is a firm of accountants, on 1 February 2006 as a trainer support analyst.  In October 2007 she was promoted to a position of consultant/trainer. On 1 January 2009 she was further promoted to the role of consultant.  Mr Jones, who featured in the case, had joined the company in September 2008 as a trainer.  The consulting and IT department of the Appellant was staffed by 11 people.  The role of that department was to market, sell and provide helpdesk support and consultancy to implement a grant management software package called “Microedge Gifts”; most of their clients were charities.

 

6.              The Tribunal found that the structure of that particular team was, “flat, flexible and fluid.”  Someone who started off as an administrator might move on to become a trainer and then a consultant.  Many of the employees in that department carried out dual roles.  The Tribunal then describe that there was a management grade, which was recognised as a higher grade, which consisted at time of four managers, including a Mr John Sharples and Fleur Turner.  The department as a whole was under the senior management of Mr de Lacey, who is also a partner to the firm.  The Tribunal found that, at the material time, the Claimant’s line manager was Fleur Turner, who also managed Mr Jones.

 

7.              The Tribunal then described, in a series of numbered sub‑paragraphs, a developing situation of conflict between the Claimant and Mr Jones.  That was relevant because it was the treatment by the Appellant of a grievance, or set of grievances, raised by the Claimant in respect of Mr Jones and his conduct towards her that gave rise to the incidents on which the Tribunal found in favour of the Claimant.

 

8.              The Appellant had a well‑developed set of grievance procedures, which the Tribunal had before it.  Those arrangements included, at first instance, what was described as “an informal grievance procedure”, which reads, in its entirety, as follows:

 

“Where a member of staff has a grievance arising from their employment, he or she should raise the matter with their immediate line manager or Partner.  If the issue cannot be resolved within three (3) working days, the member of staff should proceed to the Formal Grievance Procedure set out below.”

 

9.              The formal grievance procedure is extensive and highly formalised.  The formal grievance must be contained in writing and headed “Formal Grievance”.  The formal grievance will eventually proceed to a full grievance hearing but, before that, there is provision for the grievance to be investigated.  There is then a grievance hearing which, once again, is highly structured, at the conclusion of which the member of staff will be notified in writing of the outcome.  The procedure then provides that, if the member of staff is dissatisfied with the outcome, they may make a “first formal appeal”, and then, if that does not succeed, there is provision for a final appeal.  What is clear from that grievance procedure is that the informal grievance procedure amounts to little more than a very quick and cursory consideration of the grievance by the line manager.  It does not call for any decision by the line manager to accept or reject the grievance, but simply indicates that, if the matter cannot be resolved, then it should go through the formal grievance procedure.

 

10.          The Tribunal had before it a series of notes which, respectively, represented what the line manager had done purportedly at the informal grievance procedure stage, and then what had happened at the formal grievance stage and, in particular, the formal grievance hearing which was conducted, apparently, by Cheryl Gowdie.  It is to be observed that the “informal” grievance procedure followed by Ms Turner comprised a series of meetings, three in all, on 25 March, 26 March and 27 March, the notes for which, in the Tribunal’s bundle, run from pages 76‑92, and which are significantly longer than the notes taken by Ms Gowdie dealing with the formal grievance procedure.

 

11.          Furthermore, at the conclusion of what can only be described as a comprehensive and detailed investigation, Ms Turner expressed a view concerning the merits of the grievance raised by the Claimant.  In particular, she expressed the view that the Claimant had misunderstood and misinterpreted situations even where written evidence existed, leading to reasonable doubts about the accuracy of her interpretation and understandings of situations where no evidence or witnesses existed.  Ms Turner recorded that she had stated that this raised concerns that the complaint was malicious, in which case the matter could result in disciplinary action against the Claimant.  However, it is also recorded, in the minutes, that, if there were genuine misunderstanding or misinterpretation of the circumstances, trust and confidence would have been broken, so there was a need to put in place measures to rebuild the relationship between the Claimant, Mr Jones and, potentially, other members of the team. A number of measures were put forward as necessary in order to remedy the fractures in relationships that had occurred. 

 

12.          In order to emphasise the seriousness of Ms Turner’s statement about the potential disciplinary action that might follow if the Claimant persisted in putting forward grievances that were malicious, the Tribunal recorded, as a finding of fact, that the Claimant had spoken to Mr Sharples shortly after this meeting.  Mr Sharples, as we have indicated, was a manager, but, in this context, he was appearing as a representative or friend of the Claimant. The Tribunal found that he warned her against taking formal grievance action.

 

13.          The Tribunal then went on to find that, following the conclusion of the informal stage of the grievance process, there was a meeting with Mr de Lacey, the senior manager, which took place on 30 March.  The Tribunal did not have the benefit of any evidence from Mr de Lacey, nor from Ms Turner, but they did have Mr de Lacey’s notes of the meeting.  The note recorded that Mr de Lacey had explained to the Claimant that, whilst the discussion surrounding the grievance was going on, it would not be appropriate to initiate discussions with regard to her grade of employment, and that, depending on the outcome of the discussions, it might be a matter of weeks, or months, before they could return to the subject, though he did agree that he would come back to the matter of her grade of employment in the future.

 

14.          As far as that issue is concerned, the Tribunal had, in sub‑paragraph (5) of paragraph 4, made findings of fact that the question of the Claimant’s promotion to the position of manager when Ms Turner left, as she was expected to do in the near future, had been very much under discussion, so much so that, in the course of Ms Turner seeking, before the grievance procedure was involved, to manage the difficulties between Mrs Ellis and Mr Jones, Ms Turner had put forward options that when, as was expected, Mrs Ellis became a manager, it would not necessarily be required of her to line‑manage anyone, and in particular not to line manage Mr Jones.  That was not felt to be a matter of difficulty given the fluid structure of the Appellant’s relevant department, to which we have already referred.

 

15.          During the course of these events, the Claimant had two periods of absence.  One was for a few days towards the end of March, in advance of the three days of meetings with Ms Turner.  The second period of absence started on 30 March and she never went back to work.  The Tribunal had to consider what happened during that period.  On 3 April Ms Gowdie wrote to the Claimant asking for her to co‑operate in the provision of medical advice.  There was, apparently, no response from the Claimant and on, 9 April, Ms Gowdie wrote again, to the effect that they were not in receipt of any medical certificates in respect of the period of absence since 31 March, which was a requirement for her entitlement to contractual and statutory sick pay.  She indicated that the Claimant’s entitlement to contractual sick pay had expired and that, as from 31 March, she would be paid statutory sick pay.  In that letter Ms Gowdie also stated as follows:

 

“You will no doubt appreciate that your continuing absence from work is creating a negative impact on the work of the BCS team.  Unless you are able to return to work in the foreseeable future, the Firm will have no option but to review whether your employment can be continued in view of your continuing incapacity.”

 

16.          It was apparent from the evidence given by Ms Gowdie at the Tribunal that the letter of 9 April was a standard letter that was used, and formed a part of the documentation supporting a particular aspect of the sickness policy.  The Tribunal had that sickness policy before it. It is another detailed document.  Paragraph 3.2.3 sets out the procedure to be followed in the event of a member of staff’s absence causing concern.  Paragraph 3.2.3.1 concerns “Short‑term intermittent absences”.  It sets out a series of steps involving monitoring and so on, which do not involve, until a fairly late stage, consideration of disciplinary action.  By way of contrast 3.2.3.2 of the policy concerns “Long-term absence due to ill health or disability”.  It applies:

 

“Where a member of staff is absent from work due to long‑term ill‑health (normally extending beyond three weeks or 15 working days), the Team Leader should ensure that HR is informed.”

 

17.          There is then a series of steps, including a request being made by HR for the employee to co‑operate in providing a medical report, but also included in that policy is the following:

 

“f) The member of staff should be informed that long‑term absence due to ill health may be putting his/her continued employment at risk.”

 

18.          The Employment Tribunal at sub‑paragraph (11) of paragraph 4 said as follows:

 

“Ms Gowdie was following strictly the letter of the long term sickness absence procedure, where it states that staff absent for more than 15 working days, as had been the Claimant on a rolling annual basis, would, among other things, be expected to assist with the provision of medical reports on them, and also they would be informed that long term absence due to ill health would be putting their continued employment at risk.  We find that this was something that the handbook and the long term sickness and absence policy provided for.”

 

19.          The Tribunal criticised Ms Gowdie for taking the step that she did, so early in the sickness absence, and for adopting an unsympathetic and heavy‑handed approach, and sought to support this conclusion in the following terms:

 

“When Ms Gowdie wrote to the Claimant on 9 April 2009, the Claimant had not been off sick continuously for three weeks or 15 working days as is envisaged by the long term sickness absence policy.  Ms Gowdie, however, was managing the Claimant by reference to this policy.  We find that this was wrong, because the Claimant’s absence over the previous 12 months was largely short‑term and intermittent.  As at 9 April 2009, the Claimant had had just 8 working days off in the latest period of absence.  We find that the short term sickness procedure or intermittent sickness procedure was the appropriate procedure at this stage.”

 

20.          They went into detail as to what that policy amounted to.  They then said as follows: “This is the policy that should have been adopted by Ms Gowdie and was not”.  They expressed some scepticism about Ms Gowdie’s assertion in evidence that she was desperate to support the Claimant in her sickness absence, concluding that the letter that was sent on 9 April did nothing of the sort.

 

The Employment Tribunal’s decision - the law

21.          The Tribunal, at paragraph 5, set out the relevant law, both in terms of the statute and case law. They are not criticised for the way in which they express themselves.  They describe the implied term as being:

 

“[…] that the employer will not, without reason or proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”

 

22.          They also cited authority that:

 

“Failure to deal properly with a formally raised grievance may constitute a contractual repudiation, based on the specific implied term to take such grievances seriously (not just on the more general term of trust and respect) […].”

 

23.          They also reminded themselves that:

 

“The employer must leave in response to the breach of contract, which may mean the Tribunal deciding what was the effective (but not necessarily the sole) cause of the resignation […].”

 

24.          They also considered the “last straw doctrine”, under which:

 

“The particular incident that causes the employee to leave may in itself be insufficient to justify his resignation, but may amount to a constructive dismissal if it is the ‘last straw’ in a deteriorating relationship.”

 

The Employment Tribunal’s conclusions

25.          In paragraph 10 of the decision the Tribunal set out their conclusions. At 10(1) they came to conclusions, based on their findings of fact, on whether the Claimant had established that she was constructively dismissed.  They concluded that she had, by reference to a cumulative series of events that led, they concluded, to a fundamental breach of the implied term of mutual trust and confidence.  The first was the way in which the grievance procedure had been applied.  They observed that the “informal” process had been mismanaged. Whilst purporting to follow an informal process, it was not dealt with within three days, as was envisaged, and there had been an extensive investigation of serious allegations.  The Tribunal expressed the view that, by that stage, the Respondent should have been following a formal procedure as envisaged by their own written procedure.

 

26.          They concluded that, at that stage, the Claimant was denied an appeal because what was being followed purported to be an informal process. If they had been following the formal procedure, with provision for appeal, there would have been no question of the Claimant being warned about the consequences of pursuing allegations maliciously.  They pointed out that such a warning (that is to say, the potential for disciplinary proceedings in the event of pursuing allegations maliciously) is not envisaged within the grievance procedure.  They pointed out that such a provision is contained in the bullying and harassment procedure, but that was not a procedure that was being relied on or, indeed, at that stage, had even been sent to the Claimant.  That was the first matter that they found constituted part of the cumulative series of incidents that amounted to a constructive dismissal.

 

27.          The second matter was the meeting with Mr de Lacey in which he told the Claimant that her promotion was on hold.  The Tribunal concluded that her promotion and grievance should not have been linked in that way and had nothing to do with each other. The issues between the Claimant and Mr Jones were not linked to her performing as part of a team of managers. The third matter was Ms Gowdie’s failures with regard to the sickness absence procedure. She was operating the wrong procedure and the 9 April letter with its warning about her future employment being in jeopardy was not appropriate at that early stage when she had only been absent for 9 days.

 

The appeal

28.          The Appellant appeals in respect of this series of findings.  They point out, as indeed is the case, that the Claimant had never sought to allege, as part of the grounds for her constructive dismissal, that the grievance procedure had been mismanaged in the way described by the Employment Tribunal, nor, (ground 2), had the Claimant ever complained about the absence of a right to appeal her grievance.  In fact, the Claimant did launch her own formal grievance on 20 April, which was the same date as she wrote her letter of resignation, and that went through, at least, to a formal hearing and in due course was dismissed.

 

29.          It is therefore said, of the Employment Tribunal’s decision, that they have made a series of findings and come to a series of conclusions that did not and could not have formed the basis of the resignation by the Claimant.  In our judgment, those grounds of appeal are misconceived.  What the Tribunal is clearly doing in this part of paragraph 10 is describing, in the first instance, the rather odd way in which Ms Turner dealt with what, on any view, should be a short and cursory process by way of the informal stage of the grievance procedure. They pointed out that the consequence of that was that there was a series of inappropriate formalised findings, without any right of appeal, coupled with a warning as to potential disciplinary action in the event that the grievance was proceeded with because of the risk that the Appellant might find that the complaints were made maliciously.

 

30.          The main part of the finding of the Tribunal concerned the complaint by the Claimant that, by issuing to her a warning of the potential for disciplinary action in the event that she persisted with her grievance to a formal stage in that there was a possibility that she would have been found to have made her complaints maliciously, the Appellant imposed a severe inhibition upon her ability to exercise her rights to pursue the grievance.  In our judgment, the Employment Tribunal was entitled to conclude that that act by Ms Turner was capable, at least cumulatively with the other matters of complaint, of amounting to a breach of the implied term.  We have no doubt that it must be open to an employer to protect itself against an abuse by a recalcitrant employee of its grievance procedures by making, and persisting with, allegations made maliciously, but, in our judgment, the Employment Tribunal was entitled to conclude that it was far too early in the process for any such action to be taken by this Appellant.  They were still, supposedly, at an informal stage.  The informal stage did not require the grievance to be upheld or rejected. It was there simply to see if the grievance could be sorted out quickly by the line manager.  The line manager had not made any finding that the complaints were being made maliciously. All that she had indicated was that a possibility might arise that such a finding might be made.

 

31.          In that context, in our judgment the Tribunal was entitled to conclude that it was wrong of the Appellant to threaten the Claimant that, if she were to pursue to the formal stage, a stage that involved at least the potential of three different fact‑finding stages, she might face disciplinary action.  It may be, and we are not necessarily deciding this, that at the conclusion of the formal disciplinary stage, if there were such findings, then it might be appropriate for a warning to have been given to an employee about the consequences of making further malicious allegations, but, in our judgment, this Tribunal cannot be criticised for concluding that the warning that was issued, and well understood by Mr Sharples to be issued in a serious way, at this very early stage, contributed, at least cumulatively, to a breach of the implied term.

 

32.          The Tribunal dealt with the second incident that they found proved by relying on what Mr de Lacey had told the Claimant, namely that her promotion was on hold.  Consistently with their findings of fact, they were acting on the basis that the promotion was not blocked permanently but was on hold at least for as long as there was an unconcluded grievance between the Claimant and Mr Jones and her immediate management.  Criticism is made of the Tribunal’s conclusions in respect of this part of the claim, on the basis that the Claimant had, it is said, alleged that the decision of Mr de Lacey had been permanently, or indefinitely, to block her promotion even though the grievance procedure had come to an end, and that this  constituted an allegation that was far more serious than the allegation that the Tribunal found proved, which was that the matter of her promotion was going to be put on hold pending the outcome of the ongoing grievance procedure.  In our judgment, that is an argument that is misconceived and based on a false premise.  In the ET1 the Claimant, at paragraph 5.1, dealing with unfair or constructive dismissal, had said as follows:

 

“I was also expecting to be promoted in Spring 2009 as it had been promised to me on numerous occasions both verbally and in writing in my performance review document in 2008 and 2009.  However, my promotion was blocked as a direct result of having raised a grievance.

On 30 March 2009, during a meeting with Anthony [de Lacey], he mentioned that he was blocking my promotion because of the ongoing grievance hearing.”

 

33.          It is plain from that, that the complaint that she was then making was not of permanent blocking of her promotion but of the promotion being put in abeyance pending the outcome of the ongoing grievance investigation.  Similarly, in the way in which the Tribunal summarised the issues to which we have referred earlier in sub‑paragraph (10) of paragraph 2 of the decision, it is clear that the temporal period of the promotion being put on hold did not have any specific end date, was indefinite, and was clearly linked to the grievance investigation, which at that stage had only gone through the informal stage.  At the stage at which Mr de Lacey was saying what he said, it was clear that it was highly likely that the Claimant would continue with her grievance in a formal way, and therefore, in our judgment, there is no discontinuity between the complaint that was made by the Claimant in her ET1, and summarised by the Tribunal at the start of its decision, and the complaint that they found proved; namely, about what Mr de Lacey had said on 30 March.  What the Tribunal did was to conclude that this action of Mr de Lacey was an incident which, cumulatively, constituted a breach of the implied term, and the reason for that was that the Tribunal concluded that there was no reason why her promotion to manager should in any way be contingent upon the conclusion of the grievance that concerned her relationship with Mr Jones.  The Tribunal said as follows:

 

“10(1)  […] We conclude that the Claimant’s promotion and her grievance should not have been linked in this way, and really had nothing to do with each other.  The Claimant’s promotion had been moving forward before this time.  There had been discussions about it and references were made to it in the performance appraisals etc.  The promotion was not as a manager of the training function or Mr Jones, and indeed both sides recognise that the two aspects could be separated.  The promotion was to manager, in other words to the next level up, as part of a team of managers.  The Respondent determined that the issues between the Claimant and Mr Jones were linked to this when in fact it is clear that they were not. […]”

 

34.          In our judgment, given the evidence and the findings of fact to which the Tribunal had come, and, in particular, the way in which, in dealing with the grievance, the question of her still being a manager but not necessarily having line management functions with Mr Jones had been canvassed, the Employment Tribunal was entitled to conclude that Mr de Lacey was wrong and, potentially, contributing to a breach of the implied term, when he chose, unnecessarily, to link the putting into effect of her promotion and the ending of the grievance concerning Mr Jones.  The Tribunal was entitled to conclude that these two matters were in fact unrelated, and that for them to be linked in that way potentially contributed cumulatively to a breach of the implied term.

 

35.          As for the third limb of the Tribunal’s finding, the grounds of appeal are on two bases.  The first is that it is said that the Tribunal has contradicted itself when, in the first sentence of paragraph 4(11), it said, on the one hand, that Ms Gowdie was following, strictly, the policy by sending the letter of 9 April, because the policy concerns a rolling period of 12 months, and someone who has been absent for more than 15 working days during that period; and, on the other hand, saying that Ms Gowdie was wrong to send the letter of 9 April because such a letter did not fall within that part of the sickness policy and that the appropriate part of the sickness policy was in respect of short‑term or intermittent absence.  In our judgment, that is a misconceived argument.  It seems to us that, although the Tribunal might have expressed itself better, what it was really doing was recording, initially, what Ms Gowdie thought she was doing, and, subsequently in the course of the same paragraph, explaining why they had concluded that Ms Gowdie had misread that policy in concluding that 9 April letter was an appropriate letter to be sent as part of the normal package of managing long‑term sickness.

 

36.          The second ground of appeal is an assertion that, upon a true reading, the long‑term sickness policy does apply where there is a period of 15 days’ absence over a rolling 12‑month period.  In our judgment, that is wrong.  The sickness policy specifically provides for a series of absences over a period of time when it deals with intermittent or short‑term sickness.  It is clear, by the juxtaposition in the policy of those provisions with the long‑term sickness policy, that what is in mind is a single period of extensive leave, which is defined as 3 weeks or 15 days, and that that is what gives rise to that more pointed long term sickness policy.  In the events of this case, by 9 April the Claimant had not had 15 days’ continuous absence and, therefore, that part of the policy was inappropriately applied by Ms Gowdie.

 

37.          The Appellant criticises the final sentence of the Tribunal in paragraph 10(1), in which, in relation to the erroneous application of the wrong part of the sickness policy, they say as follows:

 

“We conclude that the letter was inappropriate and would not have been written to an employee who was off sick who had not raised the grievances that the Claimant had raised.”

 

38.          It is said, and with some substance, that it had never been suggested to Ms Gowdie when she was giving her evidence that she had been motivated in sending the letter of 9 April under the inappropriate part of the sickness policy by the fact that the Claimant had pursued what was proving to be a troublesome set of grievances.  It is, however, right to say that in her ET1 the Claimant had made that assertion, at paragraph 9.1 she said this:

 

“[…] I have the suspicion that other employees when off sick are possibly paid for more days than I have been paid for, simply because I complained and exercised my rights under the grievance procedure, again possibly victimising me and/or discriminating against me as a female.”

 

39.          Mr Davey has frankly acknowledged that, from the notes of evidence of Ms Gowdie and from his recollection, he accepts that it was unlikely that he had put that particular linkage to Ms Gowdie.  What he says and, in our judgment, with considerable force, is that what the Tribunal had to determine was whether the incidents in question were capable cumulatively of constituting a breach of the implied term.  The motivation with which the Appellant broke the term is neither here nor there; what is of significance is the importance of the incident in terms of the perception of a reasonable employee.  In a case such as this, where somebody had been off sick for no more than nine days, albeit she had shortly before been off sick for a few more days, the receipt of a letter that puts in issue the continuation of her employment and implicitly threatens dismissal is a very serious matter with a significant potential impact upon the employee.  If that letter is written erroneously, applying the wrong part of the sickness policy, by an HR professional, in our judgment, regardless of the motivation lying behind the sending of the letter, that too is correctly identified by the Tribunal as being an incident contributing to a fundamental breach of the implied term.

 

Conclusions

40.          In summary, therefore, in our judgment, looking at each of the three incidents in turn and having regard to the criticisms made by the Appellant, of the findings of the Tribunal and their conclusions, we are unable to accede to the contention that their conclusions that there was such a breach of the fundamental term were either wrong in law or perverse.  The fact that they found that, of the 12 matters complained of, only 3 of them were proved to their satisfaction is not determinative.  What the Tribunal had to do was consider those matters that they did find proved and consider their impact cumulatively, and they did so.  In each case what was under potential attack was a fundamental aspect of the Claimant’s employment.  She was being threatened with disciplinary action if she pursued her grievance if the grievance was being pursued maliciously.  She was being blocked in a promotion that had been more or less agreed for a reason that made no real sense, and, finally, by the inappropriate application of the long‑term sickness policy, her very future as an employee was being said to be put at risk in circumstances where it was inappropriate for such a letter to have been sent.  In those circumstances, the three matters that were found by the Tribunal were well capable of constituting a breach of the fundamental term and in those circumstances the main appeal in respect of constructive dismissal is dismissed.

 

41.          The issue of victimisation, however, also gives rise to an appeal.  The Tribunal addressed that issue in its entirety in a single brief paragraph.  It reads as follows:

 

“So far as victimisation is concerned, then we note that the Claimant had some difficulty in articulating what the protected act was.  However, it seems to us that she now relies upon the complaints that she made about Mr Jones’ treatment of her and the Respondent’s failures to deal with that treatment.  The allegations that she makes amount to allegations of harassment by Mr Jones, we conclude.  The Respondent’s attempts to prevent her pursuing such allegations then we conclude amount to victimisation.  The detriments are the threat of disciplinary proceedings and the postponement of promotion, albeit not indefinitely. […]”

 

42.          Although it is right to say that the Tribunal had identified the detriments that can properly be relied on, the very brief treatment of this part of the claim is entirely bereft of any examination of precisely what it was about the complaints about Mr Jones’ treatment that it is said amounts to a protected act potentially giving protection against victimisation.  The complaints made against Mr Jones were many and various in number, and are contained in a document that was before the Tribunal and that had been sent to the Respondents.  That document contains a number of different headings.  Under only one of the headings, and in respect of only part of the text under that heading, is there anything that could conceivably begin to amount to a relevant protected act.  The Tribunal decision contained no examination of what the complaints were, which parts of them were potentially protected acts, and why.  Furthermore, there is no mention of the question who is the appropriate comparator, and what, if any, evidence they received as to whether a comparator would have been treated in the same way or differently to the Claimant.  In short, the claim for victimisation and the conclusions of the Tribunal have not properly been articulated in such a way as enables anyone to form any informed view as to whether the Tribunal may or may not have erred in law.  In our judgment, this part of the appeal must succeed. Our order is that the issue of victimisation be remitted to the same Tribunal for it to consider that aspect of the complaint afresh, having received any further evidence that it feels it needs and having heard any further argument from representatives for the Claimant and the Respondent as it feels is desirable.

 

Summary

43.          The conclusion of this appeal is that the appeals in respect of constructive unfair dismissal are dismissed; the appeal in respect of victimisation succeeds, and that aspect of the matter goes back to the Employment Tribunal for a further hearing.  We have not come to any conclusion in respect of the direct dismissal cross‑appeal because it is unnecessary for us to do so, we already having dealt with the matter under the heading of constructive unfair dismissal.