United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARCUS PILGERSTORFER (of Counsel)
For the Respondent	MR R J HERON (Representative)


 


SUMMARY

UNFAIR DISMISSAL – Constructive dismissal

Employee resigned in response to "last straw" communication from employer during a period of ill-health absence. Employment Judge finds employee was constructively unfairly dismissed. Employer's appeal puts in issue correctness of findings on liability and quantum. Appeal allowed only in respect of one element of compensatory award. Otherwise, the Judge's judgment contained a correct application of the law to her ample findings of fact.


 


MR RECORDER LUBA QC

Introduction

1. This is an employer's appeal from a judgment that it had constructively and unfairly dismissed an employee. The employer was the Saint Francis Hospice ('the Hospice'). The employee was Ms Gillian Burn. The judgment was made by Employment Judge Lewis who delivered comprehensive written reasons following a five-day hearing held in June 2012 at Watford.
2. The appeal was listed before me on 19 March 2013. It was fully opened by Mr Pilgerstorfer, counsel for the Hospice, who developed submissions in support of all twelve grounds of appeal as set out in the already compendious Notice of Appeal. In reply, I heard from Mr Heron for Ms Burn. Unhappily, part-way through his submissions, Mr Heron was taken ill and was unable to continue. In those circumstances, I directed that the hearing be concluded with written submissions for both parties. The last of those submissions was received in mid-April 2013. The fact that submissions had reached the Appeal Tribunal office was not brought to my attention until mid-May 2013 and it thereafter proved impossible to allocate time to deal with this matter again until July 2013. I regret the consequent delay and the inconvenience this will have caused to both parties.

The essential background

3. Ms Burn is a trained nurse and nurse tutor with extensive teaching experience in the UK and overseas. From December 2007 she held the post of "Lecturer in Palliative Care and Lead for International Palliative Care Education" with the Hospice. It is a large organisation based in Romford, Essex, employs some 270 people and has a large number of volunteers.
4. The line manager for Ms Burn's post was a Ms Scates. Above her in the Hospice structure was a Ms Sutherland, the Director of Patient Services.
5. In 2009 Ms Burn was signed-off sick from work and in 2010 a return to work review meeting was to be arranged. Put very shortly, through 2010 there was considerable correspondence between Ms Burn and the Hospice about her return to work and other aspects of her employment. Among other developments, she herself raised a formal grievance under the relevant procedures.
6. Following a letter from the Hospice dated 18 October 2010, which she treated as the "last straw" in a sequence of bullying and harassment by her employers, Ms Burn resigned. She brought a claim of unfair dismissal. The Hospice contended that there had been no bullying or harassment and that Ms Burn had simply resigned in order to take up the opportunity of a Far East tour for which leave of absence had been refused.
7. The Employment Judge heard evidence from Ms Burn and two witnesses called in support. She heard from Ms Sutherland and Ms Scates and some five other witnesses for the Hospice and had a bundle of documents in excess of 1000 pages.
8. The Employment Judge delivered a lengthy and carefully crafted judgment in which she set out extensive findings of fact, summarised the law and the legal principles relevant to the claim, articulated the key features of the dealings between the parties and ultimately (at para [116]) posed for herself the critical question:

"The question I asked myself was whether, without reasonable and proper cause, the respondents conducted themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. I have found that they did".

9. The judge went on to hold that the reason for Ms Burn's resignation was "because of her loss of trust and confidence in her employer" (para [131]). She rejected the proposition that Ms Burns had affirmed her contract notwithstanding the conduct of the Hospice (paras [132]–[134]). The judge found that, even if the Hospice had held concerns as to Ms Burn's conduct, the "decision to act as they did was outside the band of reasonable responses" to those concerns (para [135]).
10. It followed that Ms Burns had been unfairly dismissed.

The appeal on liability

11. The first seven of the grounds of appeal advanced for the Hospice are concerned with the judgment on liability. I will deal with those before addressing the remaining five grounds.

(1) The scope of the claim

12. The Hospice contends that the judge went wrong (1) in entertaining matters beyond a list of 10 alleged breaches of the implied term of mutual trust and confidence (the implied term) as set out following a Case Management hearing in August 2011 and (2) in making findings adverse to the Hospice on matters on which Ms Burn herself had not relied as amounting to such breach. The latter conduct was labelled "perverse".
13. The Ground was elaborated at length in the Notice of Appeal (paras 11-19) and fully developed by Mr Pilgerstorfer in oral argument. The thrust of the case for the Hospice was that, particularly in a case which had been closely and carefully case-managed in the lead-up to the hearing, it had been both wrong in principle and had caused prejudice to the Hospice for the Employment Judge to have trespassed into matters raised by Ms Burn in her evidence and going beyond the strict limits of the agreed list of issues and matters.
14. It is self evident that this claim had required careful case management. Not least, at the August 2011 Case Management Discussion (CMD) Ms Burn had prepared a "spreadsheet setting out virtually every disagreement" that she had ever had with the Hospice. The Employment Judge conducting that CMD had gone through them and sifted out some 10 matters said to be the incidents on with Ms Burn relied and distilled them into a list (later marked EJ1). Those were the subject of a further case management order, made in November 2011, that Ms Burn's witness statements should be confined to them. They were then carried over into the 10 sub-paragraphs of para 2.1 of Employment Judge Lewis's final judgment.
15. Mr Pilgerstorfer submitted that the judge had not only expanded the list as the hearing went on but had allowed the listed matters themselves to be augmented by additional material. He took me to authorities such as Chapman v Simon [1994] IRLR 124, British Gas Services Ltd v McCall [2001] IRLR 60 and (most recently) Parekh v London Borough of Brent [2012] EWCA Civ 1630, for the familiar propositions that an Employment Tribunal should only determine the issues strictly before them and that any expansion of the issues should not be permitted in circumstances which might prejudice the other party.
16. It is unnecessary to recount here, in full detail, the forensic exercise on which Mr Pilgerstorfer then embarked in seeking to demonstrate that here or there the Employment Judge had strayed somewhat beyond the previously described list of issues (an exercise later described by Mr Heron as 'semantic nit-picking'). The high-watermark of his submission was that in para [98] of her reasons the Employment Judge had identified four matters which were described by her as the primary manifestations of harassment and of Ms Burn being made to feel 'unwanted' by the Hospice. Of those, he submitted, at least two had not been expressly raised in the list of issues.
17. I have no hesitation in rejecting this ground of appeal. The written reasons make manifest that the Employment Judge got to grips with the central issues in this case from the starting point of the pre-determined issues and with the benefit of the fleshing-out of them in the course of oral and documentary evidence. Mr Pilgerstorfer's submissions took what to my mind was an excessively narrow approach to the judicial function and the flexibility with which, in reality, hearings fall to be conducted. It is important to keep in mind what Mummery LJ said in Parekh (at [31]): "As the ET that conducts the hearing is bound to ensure that the case is clearly and efficiently presented, it is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence: see Price v. Surrey CC Appeal No UKEAT/0450/10/SM (27 October 2011) at [23]."
18. By way of illustration only, I recount that Mr Pilgerstorfer submitted that the judge had impermissibly expanded the issue that she reproduced at para 2.1.2 by allowing Ms Burn to rely on a range of correspondence beyond the three items particularised in the issue as originally drawn. However, as is manifest from its wording, the issue as drawn referred to all the correspondence from the Hospice to Ms Burn from 1 September 2009 to her resignation in October 2010 and simply went on to particularise three items. That was no straightjacket of the type for which Mr Pilgerstorfer seemed to me to be contending.
19. If there was, in the circumstances of this case, any expansion or augmentation of the issues by the judge, it can only have been in response to the case as it unfolded before her. The Hospice was represented at the hearing and had the ability to probe, rebut and challenge anything raised. To my mind, it can have suffered no actual prejudice.

(2) Accompaniment at meetings

20. Ms Burn had asked to be allowed to be accompanied at a meeting with the Hospice management. That had been (at least initially) declined. The judge found that the employers had acted unreasonably in their refusal and that it was an aspect of their repudiatory breach of the implied term.
21. The Hospice contends that the judge went wrong in law because the extent of the right to be accompanied is fixed by the parameters of statute. An employee could not pray-in aid an implied right when Parliament had fixed the extent of an express statutory right. Put another way, it could not as a matter of law be a breach of contract for an employer to decline to go beyond what the law had fixed as the extent of an employee's rights.
22. Seeking to make good that proposition, Mr Pilgerstorfer took me to Johnson v Unisys [2001] IRLR 279 and Edwards v Chesterfield Royal Hospital [2012] 1RLR 129 as well as to the terms of Employment Rights Act 1996 section 10. Drawing also on Monroe v Revenue & Customs [2009] Ch 96 he submitted that the common law on implied terms could not to used to populate the employment landscape with rights to be accompanied to meetings with employers because to do so would usurp the function of the legislature which had already prescribed how far such rights should extend.
23. Mr Heron relied upon the treatment of this point by the judge herself (at paras [89]-[90]) and submitted that no question of statutory rights was engaged here at all. The judge had simply to ask, and had asked, whether a refusal of a request to be accompanied, in all the circumstances this case, had amounted to breach of the implied term.
24. I can detect no error in the judge's approach. As is so often and aptly said, context is all. Here the employee had had an extensive period of sickness absence, she was in a state of anxiety about attending a meeting unaccompanied, the GP had supported her request to be accompanied and the judge had expressly found that none of this was an "invention" and indeed was borne out by the medical evidence (paras [104] –[108]).
25. To find that, in those particular circumstances, an unreasonable refusal to allow the employee to have a companion with her at a meeting undermined the mutual confidence between employer and employee establishes no new principle. It does not expand the common law so that it is inconsistent or incompatible with a statutory scheme. The legislature has established no bar to such a finding. I can identify none.

(3)-(6) Breach of Implied Term

26. The third ground of appeal was that even if the judge was not prohibited (as contended by Ground 2) from embarking on the 'accompaniment' point, the refusal to allow a companion was not capable (without more) of amounting to breach of the implied term.
27. This was the first in a group of four grounds (Grounds 3 to 6) putting in issue the judge's treatment of specific matters as amounting to, or contributing to, the breach of the implied term.
28. Mr Pilgerstorfer submitted that the correct approach had long since been set out by Lady Smith in Abbey National PLC v Fairbrother [2007] IRLR 320 at [30] viz:

"….conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it will not do so if the employer had reasonable and proper cause for the conduct in question. Accordingly, the questions that require to be asked in a constructive dismissal case appear to us to be:

1. what was the conduct of the employer that is complained of?

2. did the employer have reasonable and proper cause for that conduct?

If he did have such cause, then that is an end of it. The employee cannot claim that he has been constructively dismissed.

If the employer did not have such cause, then a third question arises:

3. was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?"

and that approach had not been followed by the judge here. She had, in respect of the four matters covered by grounds 3-6 simply failed to address the important second question: did the employer have reasonable and proper cause for their conduct?

29. Beyond the 'companion' point, the other three matters in respect of which it was said that the judge's reasoning was similarly deficient were: the decision to expand the scope of the return to work discussion to include "relationship issues" (Ground 4), the scheduling of the meeting of 18 August (Ground 5) and the content of certain correspondence (Ground 6).
30. Mr Pilgerstorfer developed submissions on each and took me to the further authorities of Dunn v AAH Ltd [2010] 1RLR 709 and Bournemouth University v Buckland [2010] ICR 908 in support of them. In response to Mr Heron's written submissions post-hearing, Mr Pilgerstorfer elaborated his submissions in yet further detail highlighting what, in respect of each of the four matters, he contended was a failure to grapple with 'reasonable or probable cause' for the Hospice's conduct.
31. No disrespect is intended to the extent and depth of Mr Pilgerstorfer's helpful submissions on these four grounds by my taking them shortly. In my judgment, they each collapsed to a 'reasons challenge'. Had the judge explained why, applying the right test, matters relied upon by Ms Burns had – as she had claimed – breached the implied term in this case?
32. The written reasons given by this judge amply answer that question in the affirmative. She rightly reminded herself of the elements necessary to establish an unfair constructive dismissal claim ([79] – [86]). She specifically referred to the 'reasonable and proper cause' rubric ([81]). She reminded herself ([82]) that the "bar is set much higher" for an employee than merely establishing that some aspect of the employer's behaviour was unreasonable. She cautioned that the employee's subjective feelings that an employer's conduct amounted to a breach would not suffice and that an objective approach was required (at [83]). Those self-directions were each manifestly correct.
33. She then set out her reasoning and conclusions on each of the matters subject to criticism under these four grounds of appeal. She returned to the reasonable and proper cause test in framing the ultimate question for herself (see [116] extracted above). She applied a double check to her findings - that the employer's conduct was not to be castigated if it was a reasonable response to the presenting circumstances (at [135]).
34. I can see no fault in her approach and no error of law in her conclusions. On the same material, a different Tribunal may (or may not) have taken a different view and reached a different conclusion. That is nought to the point. This judge, an experienced employment law specialist, directed herself impeccably on the law, and applied the law to the facts as she found them. I can detect no deficiency in her reasoning sufficient to sustain any of these four grounds.

(7) Reasonable responses

35. By this ground, the Hospice contends that the judge went wrong in holding that the employer's conduct went beyond the permissible range of reasonable responses to the employee's own behaviour. What occurred amounts, it is contended, to the judge having substituted her own subjective views as to what were or were not reasonable responses.
36. I can take this ground shortly with the benefit of the submissions Mr Pilgerstorfer advanced in support of it in writing and orally. To the extent that Mr Pilgerstorfer's final written submissions suggest (at [36]) that this ground is effectively conceded by Mr Heron, I can identify no express or implied concession in his skeleton argument or his written submissions. Nor can such concession be drawn from his oral argument since it was while developing his response to this ground that he fell ill. I therefore consider it to have remained in issue between the parties.
37. Mr Pilgerstorfer urged upon me that this was but another instance of the Tribunal cautioning itself as to what it must not do on substitution but then falling into the very trap: as in London Ambulance v Small [2009] EWCA Civ 220 at [40].
38. Such a submission requires the appellate tribunal to step back and examine whether, in reality, despite its protestation that it has not engaged in a substitution exercise, that is in fact what a first instance tribunal has done. To my mind this is far-removed from a 'substitution' case. The judgment could hardly have been more carefully measured and balanced to ensure that the correct approach was applied. The fact that the judge does not spell out in para [134] – [135] what range of responses her 'reasonable band' might have encompassed is not an omission of something that must have been included.
39. For all the above reasons, I find that the judge's findings on liability are not undermined by all or any of the grounds of appeal and the appeal against her finding on liability is accordingly dismissed.

The appeal on quantum

40. The next four grounds all relate to the quantum of compensation awarded to Ms Burn following from the finding that she had been unfairly dismissed,

(8) Statutory Sick Pay

41. This ground is pithily re-stated in Mr Pilgerstorfer's final submissions in these terms "the judge erred in law in failing to consider whether, had Ms Burn not resigned, she would have continued off-sick and drawing SSP (Statutory Sick Pay)".
42. As recounted above, Ms Burn resigned in October 2010. A sick note took her forward to December 2010. The judge therefore proceeded on an agreed footing that her loss for that period was equivalent to her SSP: see [144].
43. However, she proceeded on the footing that Ms Burn would thereafter have been fit for work. The Hospice had contended in its case before the judge that there was no warrant for such an assumption given the preceding significant period of ill-health. As Mr Pilgerstorfer acknowledges, the judge has – at least by implication – rejected that argument.
44. To my mind it is impossible to contend that the judge failed to deal with the proper rate for future loss beyond December 2010. She plainly did address it. The real thrust of the Hospice's complaint is that she does not explain, in terms, why (in the light of what had been argued) she proceeded on the footing that Ms Burn would be fit for work.
45. For my part, I have been troubled by the absence of an express statement of her reasoning. But I accept Mr Heron's submission that the strands can be gathered from elsewhere in her written reasons. First, and most obviously, the certification of unfitness for work was itself time limited (see [144]) and there was no direct medical evidence that it would be (or was likely to be extended). Second, the judge had found that "her illness was triggered by stress with management" ([101]) and that her continuing anxiety was compounded by the actions of the Hospice [111]. Free of those difficulties (by dint of the passage of time since her own resignation) there was no reason to suppose Ms Burn would have remained unfit for work beyond December 2010.
46. That the judge failed to draw these strands together expressly in para [144] is a venial sin of omission in a judgment of 174 paragraphs. In my judgment, it does not call for the re-opening of this aspect of her determination.

(9) Mitigation of loss

47. The Hospice contends that the judge was wrong to find that Ms Burn had done sufficient to mitigate her loss flowing from her constructive unfair dismissal.
48. In oral argument Mr Pilgerstorfer advanced this as a case of perversity or, alternatively, of the judge failing to break down the period between the resignation (October 2010) and the finding of alternative employment (March 2011) into three distinct phases or periods. That was the subject of restatement by Mr Pilgerstorfer in his latest written submissions which linked back to the passages in his originally settled extended grounds.
49. Notwithstanding the benefit of all that material, I am in no doubt that this ground fails. In the relevant paragraph of her reasons ([154]) the judge asks herself whether Ms Burn "did enough" to mitigate and finds she did. She looks back from March 2011 to the date of resignation and finds "I would not have expected her to have succeeded in obtaining work any sooner". That is the right approach. The conclusion was open to the judge on the facts. There is not a shadow of a good perversity point here. The judge did not need to subdivide the period she was reviewing (essentially 6 months) into three sub-periods to do justice to the proper exercise of her judgment on mitigation.

(10) Polkey

50. The judge decided that, had she not been unfairly dismissed, Ms Burn's employment would have ended "one way or another" by a date some 18 months later ([152]) and limited her loss accordingly in keeping with familiar Polkey principles.
51. The Hospice contends that this conclusion was perverse or represents another (alleged) failure by the judge to set out her reasons for rejecting the Hospice's contentions (this time, that the employment would in any event have ended much sooner). The case that had been advanced was that the employment would have ended either because (1) Ms Burn would have taken unauthorised leave of absence and undertaken a Far East trip or (2) she would have continued off sick and been dealt with through a capability review procedure which may have led to her dismissal.
52. It is again correct that the judge rejects these submissions only by implication in the relevant part of her judgment rather than expressly. In hindsight it would perhaps have been better had she done so. But there is no duty always, and on every point, to set out the competing submissions of the parties with each one followed by an express explanation for its rejection or acceptance.
53. The perversity aspect of this ground is simply unarguable. As to 'reasons', again, the rationale for the judge's conclusions emerges from other parts of her judgment. She had already expressly rejected the contention that Ms Burn was committed to undertaking the full-length Far East tour in face of the Hospice's objections and that she had modified her plans [77]. She had also addressed the prospect of continuing ill health as I have explained above in dealing with Ground 8. This ground likewise fails.

(11) Mileage

54. The Hospice was ordered to pay £1996.25 in respect the travel costs Ms Burn incurred in travelling to her part time job obtained in March 2011. The Hospice complains that the judge was wrong to make such an award.
55. This ground of appeal must, and does, succeed. Ms Burn had not included any claim for these travel costs in her schedule of loss. She had given no other notice of her intention to raise it. It was not supported by any documentary or other evidence in relation to the amount the travel cost or the days upon which travel was undertaken. Against that background, the Hospice had had no opportunity to deal with the point - as the judge recognised: [154].
56. That ought to have been an end to the matter. The judge was in error to proceed to make an award. All principles of natural justice spoke against doing so. In any event, the submissions made by Mr Pilgerstorfer fully develop the contention that, had there been an opportunity to consider and respond to the claim, significant rejoinder to it would have been advanced.
57. It is not appropriate to remit the matter. Ms Burn had an opportunity to advance her full claim on proper notice to the other party and did not do so. The appeal will be allowed on this ground and the compensatory award reduced by the amount awarded for travel costs.

(12) Costs

58. The Hospice contends that the Judge was wrong in law in refusing to award it the costs that it incurred by reason of the specific manner in which Ms Burn had conducted her claim.
59. The ground of appeal has five sub-elements each of which was developed at length in Mr Pilgerstorfer's expanded grounds of appeal and in his written and oral submissions (save that, in argument, the 'perversity' sub-ground was abandoned).
60. It is not proportionate to extend this already overlong judgment by a treatment of the sub-grounds, the submissions and Mr Heron's response to them.
61. Suffice it for me to record that the judge's careful treatment of the costs application (at [159]-[174]) amply demonstrates a full consideration of the facts, of the power to award costs, of the conditions for its exercise and of the application of a judgment as to whether it should be exercised. It is notorious that costs orders will not be disturbed on appeal in the absence of an error of principle. Despite the best efforts of Mr Pilgerstorfer, I can find no such error here

Conclusion

62. For the reasons given, this appeal is dismissed save that the compensatory award will be varied to reflect the removal of the amount allowed by the judge for travel costs.