Lord Justice Underhill:
INTRODUCTION
- The Appellant was employed by the Respondent Trust as a nurse between 4 August 2008 and 28 August 2014. In January 2015 she commenced proceedings against the Trust in the Employment Tribunal claiming for unfair (constructive) dismissal. At a preliminary hearing on 7 May 2015 her claim was struck out by Employment Judge Lancaster under rule 37 (1) (a) of the Employment Tribunal Rules of Procedure. On 2 June 2016 her appeal against that decision was dismissed by the Employment Appeal Tribunal (HHJ Hand QC sitting alone) under rule 3 (10) of the Employment Appeal Tribunal Rules 1993 (as amended). This is an appeal against that decision. The circumstances surrounding the grant of permission to appeal are a little complicated, and I will come back to them in due course.
- Although the Appellant was represented in the ET and the EAT she is unrepresented on the current appeal (though I should say that the Court has on more than one occasion encouraged her to seek pro bono representation).
THE FACTS
- As the original proceedings were struck out, there have been no findings of fact. I take the following summary from the facts alleged in the Appellant's ET1 and Further and Better Particulars and from the contemporary documents.
- The Appellant says that from the very early days of her employment she was the subject of complaints about her performance which were not justified. She was put on a formal capability process in 2010. Despite numerous obstacles being put in her way she was finally deemed competent in January 2012. However she says that the episode badly undermined her self-confidence.
- Separately, problems developed between herself and a number of colleagues who she felt were bullying her. These included in particular a healthcare assistant called Marilyn Luckaine. She made a formal complaint about their conduct in 2012, but no action was taken by the Trust.
- On 22 April 2013 there was an altercation between the Appellant (who was pregnant) and Ms Luckaine. Each said that the other assaulted her in the course of the incident. There were several witnesses to the incident or its aftermath. The Appellant went off sick and raised a Dignity at Work complaint against Ms Luckaine. (I should mention that there had been another incident between the two on 8 April, but that is not material to the issues before us.)
- There was an investigation of the incident of 22 April under the Trust's disciplinary processes, which was not completed until the end of July. The recommendation was that disciplinary proceedings should be brought against both the Appellant and Ms Luckaine. There was a hearing before a disciplinary panel in the Appellant's case on 2 October 2013. She was told that this also covered her Dignity at Work complaint. She was represented by an RCN representative, Peta Clark. There were statements and interview records from a number of witnesses. Three of them – Ms Luckaine, a nurse called Jan Batchelor and a healthcare assistant called Claire Pease – attended the hearing at the Appellant's request to be questioned.
- The panel's decision was communicated to the Appellant by letter dated 16 October 2013. It decided that she was guilty of "inappropriate behaviour". Precisely what behaviour was found to have occurred is not entirely clearly spelt out, but on a reasonable reading of the letter the panel found that the Appellant and Ms Luckaine had been shouting at one another, close to an area where patients were being treated; and it was in any event confirmed on the subsequent appeal that that was what had been found. The panel recorded that there was conflicting evidence as to whether the Appellant had made physical contact with Ms Luckaine but it deliberately refrained from deciding that issue. She was given a final written warning. Shortly afterwards she commenced a period of maternity leave.
- The case against Ms Luckaine was also found proved, though there are no details of the process followed in her case; and she too was given a final written warning.
- The Appellant appealed in accordance with the Trust's internal procedures. There was a substantial delay in hearing the appeal because she had recently given birth, but a hearing eventually took place on 14 July 2014. The Appellant was again represented by Ms Clark. Her appeal was dismissed, and the reasons given in a letter dated 16 July.
- The Appellant gave notice of resignation the following day. Her employment terminated on 28 August 2014. The material parts of her resignation letter read:
"You are aware of the incidence of 22.04.2013 which was the final straw. I raised Dignity at Work concerns following 22.04.2013's incidence. I was issued with a Final Written Warning instead, under the Conduct matter during 02.10.2013's Hearing. I feel I have not been treated fairly during the process right from the beginning, including its investigation process, witnesses and evidence used, up until the issue of the outcome, as a Final Written Warning. I Appealed the Outcome but to no avail. I attended the appeal Hearing on 14.07.2014 where the Initial Final written Warning issued was upheld. I received the email today, informing me the Outcome of the Appeal in writing, issued by Mr Hamish McClure.
The Dignity at Work concerns raised on 22.04.2013 are still pending and were not even acknowledged until October 2013 when I was about to go on my long maternity leave. I feel this is not appropriate/acceptable response expected from the concerned personnel dealing with the matter, given the fact I was off sick with Work Related Stress since 23.04.2013 during my pregnancy at the time.
I feel that I am left with no choice but to resign in light of the fundamental breach of contract and a fundamental breach of trust and confidence.
I consider this to be a fundamental/unreasonable breach of a contract on Leeds Teaching Hospital's Trust part."
THE ET PROCEEDINGS
- In her ET1 the Appellant set out the details of her claim as follows:
"The main essence of my claim is this. I resigned from the Leeds Teaching Hospital Trust in Leeds on the 17th July 2014. This is mainly because of the incident that occurred on the 22/04/2014 [sic] where I raised Dignity at Work Concerns. Instead of my complaint being dealt with, I was given a final written warning on the 02/10/2013 which I believe was the opposite of what should have happened. I feel I have not been treated properly from the start of this process as the investigation process, witness statements and other parts of the investigation were flawed. Although I appealed this decision, I was still not content with the outcome and felt that I couldn't carry on working with the people that I raised the issues against. My Dignity at Work concerns raised on the 22/04/2013 were not dealt with until October 2013 which demonstrated how seriously (or lack thereof) the Trust treated this matter. I felt that there was no trust and confidence left between the Trust, myself and the colleagues I worked with. I was pregnant and stressed during this whole process. I was bullied and tormented by a certain member of staff Marilyn Luckaine and I stated to the Trust the amount of on-going and previous issues I had however these concerns were dismissed and disregarded. I received a final written warning instead of coaching and support and the thought of returning to work to suffer this again resulted in me resigning. It is because of the lack of support, acknowledgement and confidence, not to many many other factors that resulted in me resigning."
- At a preliminary hearing it was accepted on the Appellant's behalf that further particularisation was needed. Further and Better Particulars settled by her solicitors were served on 2 April 2015. They can be summarised as follows:
(1) Paras. 6-24, headed "Performance Issues", dealt with the Appellant having had to go through a capability process.
(2) Paras. 25-29, headed "Issues with Colleagues", dealt with her issues principally, though not only, with Ms Luckaine prior to the incident of 22 April 2013. Paras. 30-34 dealt with the incident on 8 April.
(3) Paras. 35-49 are headed "Incident on 22 April 2013". They start with a brief account of the incident itself but they are principally concerned with its aftermath, up to and including the appeal decision and the Appellant's resignation. The pleading is essentially narrative, though some criticism of the Trust's procedure and decisions are clearly implicit.
(4) Paras. 50-52 are headed "Constructive Unfair Dismissal" and are clearly intended to state both why her resignation constituted a dismissal and why it was unfair (the two issues being for most practical purposes the same). They read:
"50. The Claimant claims that she was unfairly dismissed in accordance with section 95(1)(c) of the Employment Rights Act 1996.
51. The Claimant contends that the conduct of the Respondent as portrayed above amounted to a fundamental breach of the implied term of trust and confidence and that she resigned from her employer quickly and in relation to this breach.
52. Specifically the Claimant avers;
(a) The Respondent actively looked for faults with the Claimant in order to push her out of the company.
(b) The Respondent intentionally extended the Claimant's capability procedure in an attempt to try and make the Claimant fail; causing the Claimant a great amount of stress.
(c) The Respondent disregarded the issues the Claimant had with her colleagues; despite numerous complaints by the Claimant no action was taken. This made the Claimant's working environment very difficult and uncomfortable.
(d) In accordance with the ACAS Code of Conduct where there is a grievance and disciplinary together, the grievance must be addressed first. The Respondent failed to comply with the ACAS Code of Conduct and failed to acknowledge the Claimant's dignity at work grievance until October 2013. This was when the Claimant was heavily pregnant and ready to start her maternity leave.
(e) The Respondent deliberately prolonged the disciplinary proceedings against the Claimant; specifically, the incident occurred on the 22nd April 2013 but the investigation was not concluded until August 2013. The incident had already caused the Claimant a huge amount of stress and the delays added to this.
(f) The Respondent centred their investigation on the Claimant in an attempt to discredit the Claimant's character. This caused the Claimant to lose trust and confidence in the Respondent.
(g) The Respondent relied on conflicting witness evidence to formulate their decision against the Claimant.
(h) The Respondent failed to sanction the Claimant and Ms Luckaine in accordance with the alleged acts of misconduct committed. The Respondent gave the Claimant and Marilyn a final written warning although it was accepted that Marilyn had physically abused the Claimant, further causing the Claimant to lose trust and confidence in the Respondent.
(i) The Claimant's appeal was not given due consideration despite having valid grounds and was therefore not upheld. This was the last straw for the Claimant."
- The Respondent applied to strike out the claim on the basis that it had no reasonable prospect of success; alternatively for a deposit order (which can be made where a claim has "little" reasonable prospect of success). The application was heard by Judge Lancaster on 7 May 2015. The Appellant was represented by Mr Alexander Modgill of counsel and the Trust by Ms Suzanne Nulty of Hill Dickinson. The Judge heard no oral evidence, but he had a full bundle of documents covering, among other things, the investigation into the incident of 22 April 2013 and the subsequent disciplinary proceedings and appeal.
- At the end of the hearing the Judge gave his decision dismissing the claim. Written Reasons were sent to the parties on 10 June 2015. They are succinct but carefully structured. I can summarise them as follows.
- Paras. 1 and 2 of the Reasons are introductory. The Judge notes at para. 1 that the "trigger" for the Appellant's resignation was the dismissal of her appeal. He said that her claim to have been constructively dismissed turned on "whether or not that appeal outcome is capable of constituting a 'final straw'". He continues, at para. 2:
"The issue for my consideration today, therefore, is whether there is any reasonable prospect, alternatively little reasonable prospect, of the claimant establishing at a full hearing that the conduct and decision of that appeal hearing is capable of contributing to an alleged fundamental breach of contract. If she has no reasonable prospect of establishing that then I do not have to consider the earlier allegations that she relies upon as going towards that fundamental breach. If she is able to establish any reasonable prospect of establishing the final straw then, subject to any decision I would make about the payment of a deposit, the entirety of her allegations would have to be considered in some way at a final hearing."
- At paras. 3 and 4 the Judge directs himself as to the relevant law. He sets out in extenso the core passages from the judgment of Dyson LJ in the leading case on constructive dismissal, London Borough of Waltham Forest v Omilaju [2004] EWCA Civ 1493, [2005] ICR 481, specifically paras. 19-22, which I quote in full at para. 40 below. He adds at para. 4 that the "implied term of trust and confidence" referred to in that passage was authoritatively formulated in Malik v Bank of Credit and Commerce International SA [1998] AC 20 and he quotes the full formulation – that is, an obligation on the employer not, without reasonable and proper cause, to conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.
- At paras. 5-7 he refers to a "hinterland" to the Appellant's claim, comprising two strands – (a) the issues raised between 2010 and 2012 about her capability and (b) "the claimant's interactions with her colleagues"; in other words heads (a)-(c) in her Particulars. He makes it clear at paras. 6 and 8 that he is not in a position to make any findings about the disputed issues of fact arising under those heads.
- At paras. 9-10 he summarises in bare outline the conflicting accounts of the incident of 22 April 2013[1], which he says the Appellant relies on as "the earlier final straw". He then says, at the start of para. 11:
"So there was allegation and counter allegation, but the claimant now contends that those actions towards her by Ms Luckaine on 22 April constituted the first last straw. Although those are the actions of a fellow employee and not directly attributable to the employer, if the claimant were right and she was subjected to inappropriate behaviour by a colleague on 22 April that would potentially be capable, under the definition in Omilaju, of contributing to a preceding history of acts that together thereby constituted a breach of the implied term as to trust and confidence; that is if the respondent had in some way contributed to a situation at work where the claimant was without proper redress subject to inappropriate behaviour on the part of her work colleagues."
- At paras. 12-20 he reviews the events following the incident of 22 April and in particular the disciplinary and Dignity at Work process, addressing various criticisms made by the Appellant's counsel. He rejects all the criticisms. In particular:
(1) He finds at para. 15 that "taking the claimant's case at its highest … there is no reasonable prospect of her establishing that the respondent did not have reasonable grounds for instituting those disciplinary proceedings against her". He also finds that it was "quite proper" to fold the Dignity at Work complaint in with the disciplinary proceedings.
(2) He finds, further, at para. 16 that, having regard to the evidence that the Trust had accumulated in its investigation, there was no reasonable prospect, if the case were to proceed, of it not being found that the Appellant "raised her voice" in the corridors of the ward (which is an area to which patients have access); or that that was not capable of constituting gross misconduct.
(3) At para. 17 he finds that there was no reasonable prospect of her establishing in those circumstances that the decision to give her a final written warning was unreasonable.
(4) At paras. 17-23 he deals in detail with, and rejects, a particular criticism which Mr Modgill had evidently advanced, to the effect that neither panel had heard evidence from Dr Callister.
In short, he found that the entirety of the disciplinary process and its outcome were unarguably reasonable.
- The final three paragraphs of the Reasons read as follows:
"25. On that analysis I am driven to the conclusion that this falls within that category of Omilaju where the claimant cannot show a breach of contract of itself in the conduct of the disciplinary and the appeal hearing; she cannot show unreasonable conduct on the part of the respondent; she cannot show blameworthy conduct; and even though none of those are necessary, nor can she show that this is anything other than an innocuous act: it is the following through, in perfectly proper fashion on the face of the papers, of a disciplinary process. Although the claimant may, to quote Omilaju, 'genuinely interpret' the confirmation of the sanction imposed upon her by the disciplinary hearing as 'hurtful and destructive of her trust and confidence in the employer', that is a mistaken interpretation on these facts. There is no reasonable prospect of the claimant establishing a final straw, and as she cannot do that in relation to the conduct of the appeal hearing which triggered her resignation two days later, then I do not accept Mr Modgill's argument that this is all of a piece with the earlier allegations relating to 22 April 2013 itself.
26. Although there is superficially a connection in that the incident in April was the subject matter of the later appeal, I consider that they are in fact unrelated. The claimant cannot wait 15 months to seek to rely on what she now says was the last straw as of 22 April simply because she is awaiting the outcome of proceedings, which as I say were conducted on the face of it perfectly properly and reasonably. She may disagree with the outcome, as she evidently does, but that is not sufficient to re-activate her concerns from 15 months earlier. That is a substantial delay. In the ordinary course given that she has remained in employment and has engaged with the respondent's procedures in seeking to raise her concerns rather than resign as of 22 April, there is no reasonable prospect on the evidence of her asserting successfully that she had done anything other than affirm or waive any breach, if such breach were found to have occurred.
27. So applying the test in Omilaju looking at the issue here as to whether the claimant has a reasonable prospect of establishing there is a final straw that would entitle the Tribunal to look back at that earlier hinterland of allegations, I find she has not established that. It is appropriate therefore, at this preliminary stage, to strike out the claim in its entirety."
- The Appellant applied to the ET for a reconsideration of its decision, seeking to rely on further documentary evidence; but the application was refused.
THE APPEAL TO THE EAT
- The Appellant appealed to the EAT against both the initial strike-out decision and the ET's subsequent refusal of her application for a reconsideration. Her Grounds of Appeal were drafted without legal assistance. On 20 October 2015 both appeals were rejected on the papers by HH Judge Eady QC under rule 3 (7).
- The Appellant sought an oral hearing under rule 3 (10). That came on before Judge Hand on 6 January 2016. The Appellant was represented by Ms Sugun Praisoody of counsel. Judge Hand wanted clarification from the ET on one point and adjourned the hearing while that clarification was obtained.
- The adjourned hearing took place, with Ms Praisoody again representing the Appellant, on 2 June 2016. As regards the appeal against the original strike-out decision, Ms Praisoody in her skeleton argument identified four grounds, but I need note only one, namely that "the ET did not apply the correct law"; Under that head Ms Praisoody referred to two EAT decisions which she said had developed the law as stated in Omilaju, namely Wright v North Ayrshire Council [2013] UKEAT 0017/13/2706, [2014] ICR 77, and Addenbrooke v Princess Alexandra Hospital NHS Trust [2014] UKEAT 0265/14/0212.[2]
- Judge Hand's essential reason for not allowing the appeal against the strike-out decision to proceed appears at para. 13 of his judgment, as follows:
"Ms Praisoody submits that cases of this kind should be determined on their factual issues after an evidential investigation. I accept that there is some force in that point, but each case must depend upon its own facts. Employment Judge Lancaster took the view that the evidence was overwhelmingly in favour of the Respondent and against the Claimant establishing that there was any fundamental breach of contract on the part of the Respondent at the time of the resignation. Whilst that is not an exercise that Employment Tribunals should undertake on a daily basis, on occasions it is justifiable and, it seems to me, that on this occasion, given the factual analysis made by the learned Judge, it was appropriate for him to consider on paper whether or not the Claimant had an arguable case on the evidential material taken at its highest. I have reached the conclusion, although these matters are always open to debate, that the Judge was entitled on the evidential material to reach the conclusions that he did."
- However, he went on to respond in more detail to Ms Praisoody's particular points, and I need to set out his response to the second point, concerning the effect of the decision in Addenbrooke. He said:
"15. The next matter which Ms Praisoody develops in her submissions is whether the learned judge was right to take the view that applying Omilaju the later refusal of an appeal could reactivate the earlier breaches of which he complained. Ms Praisoody has referred me to the case of [Addenbrooke] a judgment of the division of this Tribunal presided over by Lewis J. In that case, and certainly at paragraph 14 of the Judgment, the learned Judge certainly takes the view that a fundamental breach can be reactivated even after affirmation. He also deals with the second situation, which, in effect, is looking at the last straw concept in the context of an alleged breach of the implied term as to mutual trust and confidence.
16. I have some difficulty reconciling what is said by Lewis J's division of this Tribunal and what is said by Dyson LJ in Omilaju. Indeed, in an as yet undelivered judgment I have looked at this matter in some detail and I have come to the conclusion that the concept of reactivating breaches after affirmation is one that is fraught with difficulty. I do not think that it is a concept that should be understood to be of wide application, if it has any existence at all. Accordingly, I do not think that Employment Judge Lancaster was wrong to follow the Court of Appeal judgment in Omilaju and not take account of what Lewis J's division of this Tribunal said in Addenbrooke. It may be a question, as I have put it in the judgment that is about to be handed down, of how one reads what Lewis J says in his judgment in Addenbrooke, but I do not accept that Ms Praisoody has any prospect of successfully arguing that the way in which the matter is looked at in that case, if it is in conflict with Omilaju, is to be preferred or can be followed. Omilaju is a decision of the Court of Appeal and it binds me as it bound Employment Judge Lancaster."
The as yet undelivered judgment to which Judge Hand refers is Vairea v Reed Business Information Ltd [2016] UKEAT 0177/15/0306, which was in fact handed down the following day. As he says, it contains a very full discussion of the Addenbrooke decision.
- Judge Hand also dismissed the appeal against the refusal of the application for a reconsideration. I need not set out his reasoning.
THE APPEAL TO THIS COURT
- The Appellant filed separate Appellant's Notices in relation to Judge Hand's dismissals of her appeals against (a) the substantive decision of the ET (A2/2016/2944) and (b) the reconsideration (A2/2016/2945): for short I will refer to the two appeals as "2944" and "2945". Her grounds of appeal were drafted without legal assistance and are not at all points easy to interpret.
- Permission in both appeals was considered on the papers by Lewison LJ on 9 March 2017. He refused permission in relation to 2945, on the basis that (a) "[it] does not raise any point of law that would satisfy the second appeals test and (b) has no real prospect of success". In relation to 2944 he granted permission "limited to the question whether the ET correctly stated and applied the law in paragraphs 24 and 25 of the decision of 7th May 2015". In the relevant part of his reasons he said:
"The appeal against the decision by the EAT to dismiss the appeal against the substantive decision of the ET to strike out the claim does raise a point of law which satisfies the second appeals test. That point of law is whether, as the EAT held in Addenbrooke v Princess Alexandra Hospital NHS Trust, a 'last straw' which may itself not amount to a breach of contract but which triggers a resignation can revive an employee's ability to rely on a breach that had previously been waived. The EAT alluded to the difficulty of reconciling that with the decision of the Court of Appeal in Omilaju at [16] of the decision. This is a point that is worthy of consideration by the full Court. None of the other grounds of appeal raise a point of law that would satisfy the second appeals test. Permission to appeal is limited to this point."
It will be seen that the point which Lewison LJ believed merited permission to appeal was that discussed by Judge Hand in the passage which I have set out at para. 27 above.
- The Appellant renewed her application in relation to 2945 and the excluded grounds in 2944. The application was listed before me. In the meantime she raised a query about Lewison LJ's reasons which led him to appreciate that his references to the second appeals test were erroneous, since CPR 52.7 does not apply to appeals from the EAT. It was agreed that I would reconsider the application on the papers in advance of the hearing. I did so, and my decision was communicated to the Appellant by letter from the Civil Appeals Office dated 9 June 2017. As regards 2945, I reached the same conclusion as Lewison LJ that the appeal had no realistic prospect of success, and I accordingly refused permission on the basis of the ordinary test. As regards 2944, I expanded the scope of Lewison LJ's order in one or two respects and sought to clarify its effect by identifying the specific paragraphs in her grounds of appeal in relation to which she had permission; but I concluded that the other grounds had no realistic prospect of success and refused permission.
- The Appellant was not content with the outcome of that reconsideration and the oral hearing accordingly proceeded before me on 13 June 2017. I maintained my decision as recorded in the letter of 9 June. I gave a full judgment and I need not recapitulate my reasoning here.
- The upshot is that the Appellant has permission to appeal only in 2944 and only on the grounds permitted by Lewison LJ as expanded/clarified by the Court's letter of 9 June 2017. Although the central point of law identified by Lewison LJ is clear, its application to the ET's actual reasoning is rather less so, and in identifying in the letter the paragraphs in the grounds of appeal which I believed were covered I deliberately erred on the side of inclusiveness. The result is that the scope of the appeal is now rather wider than Lewison LJ's reasons might suggest. I identify below what the real issues now are.
- I should mention for completeness that the interlocutory progress of the appeal was complicated by a prolonged correspondence about the bundles for the hearing. I have to say that the stance adopted by the Appellant was unhelpful, but that is water under the bridge since she was enabled at the hearing to put before the Court all the documents which she believed to be relevant.
THE BACKGROUND LAW
- The Appellant's claim to have been (constructively) dismissed depends on the terms of section 95 (1) (c) of the Employment Rights Act 1996, which I need not set out here. She has to establish that she resigned in response to a repudiatory breach of contract on the part of the Trust. The case was argued in the ET and the EAT on the basis that that depended on the correct application of so-called "last [or final] straw doctrine [or principle]", and the point of law identified by Lewison LJ relates to that doctrine. I accordingly need to set out what it is and the role that it plays in the law of constructive dismissal.
- Mr Reade and Mr Siddall in their skeleton argument traced the history of the last straw doctrine from its apparent origins in the decision of the EAT in Garner v Grange Furnishing Ltd [1977] IRLR 206 (which does not, however, contain any significant analysis) through the more substantial decisions in Woods v W.M. Car Services (Peterborough) Ltd [1981] ICR 666 and W. E. Cox Toner (International) Ltd v Crook [1981] ICR 823 (both judgments of Browne-Wilkinson J) to the decisions of this Court in Lewis v Motorworld Garages Ltd [1986] ICR 157 and Omilaju, to which I have already referred. They also referred to Logan v Commissioners of Customs and Excise [2003] EWCA Civ 1068, [2004] ICR 1. For present purposes, however, a sufficient summary can be found in the judgment of Dyson LJ, with whom the other members of the Court agreed, in Omilaju.
- In Omilaju the employee alleged a series of acts on the part of his employer which he claimed amounted to a repudiatory breach of his contract of employment. The last act in the series, which triggered his resignation and which he characterised as "the final straw", was the withholding of his wages in respect of a period of unauthorised non-attendance. The ET found that he had been treated badly by the employer in some respects, but it did not proceed to decide whether that conduct amounted to a repudiatory breach because it held that the withholding of the wages had been entirely justifiable and that in those circumstances he could not rely on the earlier acts in the series.
- The employee's appeal to the EAT succeeded but the decision of the ET was restored by this Court. At para. 14 of his judgment Dyson LJ summarised the general law of constructive dismissal as follows (p. 487 B-H):
"(1) The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761.
(2) It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1998] AC 20, 34H-35D (Lord Nicholls) and 45C-46E (Lord Steyn). I shall refer to this as 'the implied term of trust and confidence'.
(3) Any breach of the implied term of trust and confidence will amount to a repudiation of the contract - see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666, 672A. The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship (emphasis added).
(4) The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must 'impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer' (emphasis added).
(5) A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para [480] in Harvey on Industrial Relations and Employment Law:
'[480] Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the "last straw" which causes the employee to terminate a deteriorating relationship.'"
I will as a shorthand refer to what Dyson LJ calls "the implied term of trust and confidence" – see his point (2) – as "the Malik term", and to conduct the components of which are not individually repudiatory but which cumulatively[3] constitutes a breach of that term as conduct which "crosses the Malik threshold".
- Against the background of that summary Dyson LJ addressed the last straw doctrine specifically in paras. 15-16 of his judgment (pp. 487-8), which read:
"15. The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v Motorworld Garages Ltd [1986] ICR 157. Neill LJ said (p 167C) that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Glidewell LJ said at p 169F:
'(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (See Woods v W. M. Car Services (Peterborough) Ltd. [1981] ICR 666.) This is the "last straw" situation.'
16. Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim 'de minimis non curat lex') is of general application."
- The particular issue in Omilaju was, as Dyson LJ formulated it at para. 19 (p. 488 F-G), "what is the necessary quality of a final straw if it is to be successfully relied on by the employee as a repudiation of the contract ?". He answered that question as follows (pp. 488-9):
"19. … The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase 'an act in a series' in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.
20. I see no need to characterise the final straw as 'unreasonable' or 'blameworthy' conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.
21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle. [Emphasis supplied]"
Although that passage is primarily concerned with an issue which does not arise in this case, I have set it out in full because the sentences which I have emphasised in the middle of para. 21 are important for the issues which do arise.
- In my view the reasoning in Omilaju is clear and should need no further exposition. However, the way the issues in the present case have developed means that I will have to consider it a bit further; and, that being so, there are four points about it which may be worth making.
- First, the "last straw doctrine" is relevant only to cases where the repudiation relied on by the employee takes the form of a cumulative breach of the kind described in the passages which Dyson LJ quotes from Harvey and from the judgment of Glidewell LJ in Lewis. It does not, obviously, have any application to a case where the repudiation consists of a one-off serious breach of contract. I make this point because it was sometimes used in this case as if it were simply a synonym for "the act of repudiation". I think it will conduce to clear thinking if representatives and tribunals start from the position that the ultimate issue is always whether the employee has resigned in response to a repudiatory breach of contract, and refer to "the last straw" only where the doctrine has a role to play.
- Secondly, the italicised sentences in para. 21 of Dyson LJ's judgment are concerned with the issue of affirmation. That issue may arise in the context of a cumulative breach because in many such cases the employer's conduct will have crossed the Malik threshold at some earlier point than that at which the employee finally resigns; and, on ordinary principles, if he or she does not resign promptly at that point but "soldiers on" they will be held to have affirmed the contract. However the point which Dyson LJ is making in these sentences is that if the conduct in question is continued by a further act or acts, in response to which the employee does resign, he or she can still rely on the totality of the conduct in order to establish a breach of the Malik term. Glidewell LJ had already made substantially the same point in Lewis (see p. 170 A-C):
"This case raises another issue of principle which, so far as I can ascertain, has not yet been considered by this court. If the employer is in breach of an express term of a contract of employment, of such seriousness that the employee would be justified in leaving and claiming constructive dismissal, but the employee does not leave and accepts the altered terms of employment; and if subsequently a series of actions by the employer might constitute together a breach of the implied obligation of trust and confidence; is the employee then entitled to treat the original action by the employer which was a breach of the express terms of the contract as a part - the start - of the series of actions which, taken together with the employer's other actions, might cumulatively amount to a breach of the implied terms? In my judgment the answer to this question is clearly 'yes'."
Although Glidewell LJ is there referring to a situation where the earlier act is a repudiatory breach of an express term, the same logic necessarily applies to a series of earlier acts which cumulatively cross the Malik threshold; and that is what Dyson LJ holds. I will refer to the employer's further act in such a case as "reviving" the employee's right to terminate: I will have to consider below a possible objection to that terminology, but, as will appear, I regard it as perfectly apt.
- It is obvious why the position as stated in Omilaju is right in principle. In a case of this kind the repudiatory nature of the employer's conduct consists precisely in the accumulation of a series of acts and omissions which are not repudiatory if viewed in isolation. It would be extraordinary if, by failing to object at the first moment that the conduct reached the Malik threshold, the employee lost the right ever to rely on all conduct up to that point: when the threshold had been reached would of course be a matter of assessment in every case, and no-one would know whether the employee had jumped either too early or too late until a tribunal ruled. Such a situation would be both unfair and unworkable.
- Thirdly, even when correctly used in the context of a cumulative breach, there are two theoretically distinct legal effects to which the "last straw" label can be applied. The first is where the legal significance of the final act in the series is that the employer's conduct had not previously crossed the Malik threshold: in such a case the breaking of the camel's back[4] consists in the repudiation of the contract. In the second situation, the employer's conduct has already crossed that threshold at an earlier stage, but the employee has soldiered on until the later act which triggers his resignation: in this case, by contrast, the breaking of the camel's back consists in the employee's decision to accept, the legal significance of the last straw being that it revives his or her right to do so. I have thought it right to spell out this theoretical distinction because Lewis J does so in his judgment in Addenbrooke which I discuss below; but I am bound to say that I do not think that it is of practical significance in the usual case. If the tribunal considers the employer's conduct as a whole to have been repudiatory and the final act to have been part of that conduct (applying the Omilaju test), it should not normally matter whether it had crossed the Malik threshold at some earlier stage: even if it had, and the employee affirmed the contract by not resigning at that point, the effect of the final act is to revive his or her right to do so.
- Fourthly, the "last straw" image may in some cases not be wholly apt. At the risk of labouring the obvious, the point made by the proverb is that the additional weight that renders the load too heavy may be quite small in itself. Although that point is valuable in the legal context, and is the particular point discussed in Omilaju, it will not arise in every cumulative breach case. There will in such a case always, by definition, be a final act which causes the employee to resign, but it will not necessarily be trivial: it may be a whole extra bale of straw. Indeed in some cases it may be heavy enough to break the camel's back by itself (i.e. to constitute a repudiation in its own right), in which case the fact that there were previous breaches may be irrelevant, even though the claimant seeks to rely on them just in case (or for their prejudicial effect).
- I had understood the law as I have summarised it above to be uncontroversial. But the position appears to have become unsettled as a result of Judge Hand's comments in Vairea on the language used by Lewis J in Addenbrooke. I should accordingly consider those cases.
- Addenbrooke was a case of alleged constructive dismissal, in which one of the issues was whether the employee had affirmed the contract following the breach relied on. The actual issue turned on deficiencies in the reasoning of the ET, and I need not say anything about it. For present purposes it is only necessary to set out a passage from para. 14 of the judgment of Lewis J in which he summarises the applicable law. He says:
"Finally there may be cases, which have been described as the last straw cases, where the particular latest act of the employer would not amount to a fundamental breach but where that act, taken with other acts, will entitle the employee to treat the employer as repudiating the contract of employment. That may arise in one of two cases: firstly, there may have been an earlier fundamental breach which has been affirmed by the employee. If there is subsequently conduct which, taken together with the employer's earlier fundamental breach, causes the employee to resign or plays a part in the decision of the employee to resign, the later act effectively reactivates the earlier fundamental breach [emphasis supplied]. The second situation is whether the latest act does not amount to a fundamental breach but it is a series of breaches of which the last is the last straw and, coupled with the earlier non-fundamental breaches of contract, also enables the employee to treat the contract as repudiated."[5]
- Subject to the issue raised by Judge Hand which I consider below, I see nothing to disagree with in that passage. I have already made it clear that I regard Lewis J's distinction between two types of "last straw" case as theoretically correct, though of limited practical significance: see para. 45 above. I would only add that I would myself prefer the term "repudiatory breach" to "fundamental breach", but there is no difference in substance.
- What concerned Judge Hand, as referred to at para. 16 of his judgment in this case and more fully developed in Vairea, is Lewis J's reference to the employer's subsequent conduct "effectively reactivat[ing] the earlier fundamental breach". The discussion of the point at paras. 74-85 of his judgment in Vairea is lengthy, and I need not set it out in full. Judge Hand's starting-point is that it is trite law that the affirmation of a contract following a repudiatory breach is irrevocable. He acknowledges that the victim may nevertheless be entitled to terminate if the breach continues following the affirmation, but he refers to the judgment of Jonathan Sumption QC in Safehaven Investments Inc v Springbok Ltd (1996) 71 P & CR 59, in which he says, at p. 69:
"If … the repudiating party persists in his refusal to perform, the innocent party may later treat the contract as being at an end. The correct analysis in this case is not that the innocent party is terminating on account of the original repudiation and going back on his election to affirm. It is that he is treating the contract as being at an end on account of the continuing repudiation reflected in the other party's behaviour after the affirmation."
That statement of the law was approved by this Court in Stocznia Gdanska SA v Latvian Shipping Company (no 2) [2002] EWCA Civ 889, [2002] 2 Lloyd's Rep 436: see para. 96 of the judgment of the Court given by Rix LJ. Judge Hand's point is that Lord Sumption's analysis must apply equally to cumulative breach cases of the kind considered in Omilaju, and that accordingly it is wrong in principle to speak of the previous breach being "reactivated" (or "revived"). He concludes, at paras. 84-85:
"84. I think when a contract has been affirmed a previous breach cannot be 'revived'. The appearance of a 'revival' no doubt arises when the breach is anticipatory or can be regarded as 'continuous' or where the factual matrix of the earlier breach is repeated after affirmation but then the real analysis is not one of 'revival' but of a new breach entitling the innocent party to make a second election. The same holds good in the context of the implied term as to mutual trust and confidence. There the scale does not remain loaded and ready to be tipped by adding another 'straw'; it has been emptied by the affirmation and the new straw lands in an empty scale. In other words, there cannot be more than one 'last straw'. If a party affirms after the 'last straw' then the breach as to mutual trust and confidence cannot be 'revived' by a further 'last straw'.
85. In my view, this is not in any way unfair to an employee, who has elected to go on with the contract. On the contrary, that is the whole point of an affirmation. Affirming the contract obviously involves its continuance and that continuance is on the basis that the remedy for past breaches will be purely monetary. The result is that a further 'entirely innocuous' action on the part of the employer cannot entitle the innocent party to revert to the pre-affirmation breach. That is just as much the position where the pre-existing breach comprised a 'bundle of straws' amounting to a breach of the implied term as to mutual trust and confidence as it is with a 'unitary' repudiatory breach."
- I am afraid I cannot agree with that passage. As I have shown above, both Glidewell LJ in Lewis and Dyson LJ in Omilaju state explicitly that an employee who is the victim of a continuing cumulative breach is entitled to rely on the totality of the employer's acts notwithstanding a prior affirmation; provided the later act forms part of the series (as explained in Omilaju) it does not "land in an empty scale". I do not believe that this involves any tension with the principle that the affirmation of a contract following a breach is irrevocable. Cases of cumulative breach of the Malik term (which was not the kind of term in issue in either Safehaven or Stocznia Gdanska) fall within the well-recognised qualification to that principle that the victim of a repudiatory breach who has affirmed the contract can nevertheless terminate if the breach continues thereafter. It is true that, as Safehaven says, the correct analysis in such a case is not that the victim can go back on the affirmation and rely on the earlier repudiation as such: rather, the right to terminate depends on the employer's post-affirmation conduct. Judge Hand may therefore have been right to jib at Lewis J's reference to "reactivating" the earlier breach (though, to be fair to him, he did say "effectively re-activates"); but there is nothing wrong in speaking of the right to terminate being revived, by the further act, in the straightforward sense that the employee had the right, then lost it but now has it again.
- I would therefore recommend tribunals for the future to put Vairea to one side and to continue to draw from the pure well of Dyson LJ's judgment, which contains all that they are likely to need, at least as regards the issues considered in this judgment.
- I should say that Mr Reade and Mr Siddall in their skeleton argument advanced an analysis of the case-law in which Lewis (and also Logan) was said to have endorsed the concept of "reviving" a past breach of contract whereas Omilaju rejected it: it was submitted that we should follow Omilaju as being the most recent case. As appears from the previous paragraphs, I do not think that is right. I regard both Lewis and Omilaju as saying the same thing (as also does Logan). None of them speaks of "reviving a past breach of contract"; but all of them not only accept that previous conduct (in response to which the employee has not resigned) can be taken into account in a last straw case – indeed they depend on that being the case.
- Finally, following the hearing Mr Reade and Mr Siddall drew our attention to the recent decision of the EAT in Pets At Home Ltd v MacKenzie [2018] UKEAT 0146/17/1501. At para. 61 of her judgment in that case Judge Eady QC refers to Vairea as authority for the proposition that "if affirmed, a breach cannot subsequently be revived". I will not lengthen this judgment by analysing her reasoning in the relevant passages, but so far as I can see she was proceeding on the basis that this was not a case of a "continuing breach" (see para. 62), in which case what she says is entirely orthodox.
- I am concerned that the foregoing paragraphs may make the law in this area seem complicated and full of traps for the unwary. I do not believe that that is so. In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:
(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation ?
(2) Has he or she affirmed the contract since that act ?
(3) If not, was that act (or omission) by itself a repudiatory breach of contract ?
(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory)[6] breach of the Malik term ? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reason given at the end of para. 45 above.)
(5) Did the employee resign in response (or partly in response) to that breach ?
None of those questions is conceptually problematic, though of course answering them in the circumstances of a particular case may not be easy.
THE ISSUES ON THIS APPEAL
- For the reasons given at paras. 30-33 above, the permitted grounds of appeal have not been formulated with any precision. Broadly, however, there are two issues – (A) whether the Employment Judge directed himself correctly as to the law about constructive dismissal, and in particular the last straw principle; and (B) whether he was entitled to conclude that the Appellant's claim had no reasonable prospect of success.
(A) MISDIRECTION OF LAW
- The history leading up to the Appellant's resignation falls under three heads:
(1) The first element is her treatment from 2010-2012 – what the Employment Judge referred to as the "hinterland". This is pleaded as heads (a)-(c) in para. 52 of her Particulars as part of the conduct relied on as constituting the cumulative breach of the Malik term on which she relies. That is perfectly unexceptionable in principle.
(2) The second element is the incident of 22 April 2013 itself. This was apparently relied on by Mr Modgill in the ET as "the first last straw" – a rather odd phrase – and the Employment Judge treated it as capable of contributing to a breach of the Malik term (see paras. 11 and 26 of his Reasons). I doubt if that is right because the incident itself does not involve any act, or indeed omission, by the Trust. It is not in fact relied on in para. 52 of the Particulars as part of the series of acts which constituted the repudiation, and the Appellant in her oral submissions confirmed that it was not part of her case. However, as will appear, the fact that the Judge appears to have understood differently does not undermine his core reasoning.
(3) The third element is the Trust's acts and omissions following the incident of 22 April ("the post-incident handling"). The Appellant's complaints about the post-incident handling are pleaded as heads (d)-(h) in para. 52 of her Particulars. It does not seem to me sensible to treat those complaints individually, especially as there is some overlap between them. In truth, they constitute a single complaint that it was seriously unfair for the Trust to discipline the Appellant for the incident of 22 April (and thus also effectively reject her Dignity at Work complaint). In particular, although the Appellant in her grounds refers to the original disciplinary decision in October as "the second final straw", it does not make sense to distinguish between the first stage of the disciplinary process and the appeal stage. They are parts of a composite process; and the Appellant cannot definitively say that she has been unfairly treated until that process is complete.
- Since the Appellant relied not only on the third element but also on the first and (though I think illegitimately) the second, the case was being presented as a cumulative breach case, with the post-incident handling constituting the last straw. That is how the Employment Judge analysed it. He said, at para. 13:
"The claimant asserts that the taking of proceedings against her, the way in which those hearings were conducted, the manner in which evidence was considered and the imposition of a sanction at the same level as the other person involved, together or individually, amounts to a final straw that reactivates the earlier complaints prior to the events on 22 April."
It would be possible to quibble with the phrase "prior to": if the second element in her case was open to her, and viable, as the Judge seems to have thought, "of and prior to" would have been more accurate. But in substance his analysis is correct. It is true that elsewhere in the Reasons he refers to the final straw as being simply "the appeal outcome", but it is clear from the passage quoted, and indeed also from the language of his conclusions, that that is simply a shorthand. He appreciated that the essential question was whether there was anything wrong in the Trust's post-incident handling, viewed overall, which in practice means the disciplinary process (both stages).
- I should say that, although the Judge was correct to treat this as a cumulative breach case because of the way it was pleaded, and formally also therefore as a last straw case, it seems to me that the earlier elements in the series relied on – the so-called hinterland – were in truth unlikely to be of much forensic significance. If a tribunal at a full hearing had found that the conduct of the disciplinary process had been seriously unfair it would very likely have held that that was a sufficient repudiatory breach in itself, without the need to refer back to events of a different character some time previously. This is not a case of the type where the last straw relied on is comparatively trivial and where the tribunal has to carry out a nice assessment of whether it is nevertheless significant enough to add something to the weight of the total load.
- Since the Employment Judge was not prepared to make any findings about the first and second elements, he could only strike the claim out if he found that there was no reasonable prospect of the final straw being established: only if that were so would the earlier elements be irrelevant, because the contract had been affirmed since then. That meant that he had to be satisfied beyond argument that there was nothing in the post-incident handling that could form part of a cumulative breach of the Malik term: in the language of Omilaju, it had to be "innocuous". Again, that is precisely how the Employment Judge approached it: see para. 25 of the Reasons, quoted at para. 21 above.
- It follows that in my view the Employment Judge directed himself correctly as to the law.
- Although that disposes of this ground, I should clear up one point to which the Appellant attaches importance and which broadly relates to this part of the case. She believed and believes that the decision of the original panel in October 2013 entitled her to resign. She was concerned that by staying on and appealing she might lose that entitlement. Accordingly, the letter from Ms Clark, her RCN representative, dated 29 October 2013 by which she exercised her right of appeal included the following statement:
"In appealing the outcome of the disciplinary hearing Harpreet would like it acknowledged that she does not accept the breach of contract. This letter should be seen as protecting her rights to bring such a claim at a later date when she has given birth and her health is better and she has the space and clarity to make such decisions."
She is concerned that the Employment Judge did not refer to that letter in his Reasons; and it was in fact in order to obtain the Judge's comments on this point that Judge Hand adjourned the initial rule 3 (10) hearing. His response was that he did not mention it because it was immaterial to his analysis.
- Although it was prudent of the Appellant to make her position clear in the way that she did, I doubt if it was really necessary. Exercising a right of appeal against what is said to be a seriously unfair disciplinary decision is not likely to be treated as an unequivocal affirmation of the contract; and, even if it were, its upholding on appeal would revive her right to resign, in accordance with the principles which I have discussed. But, whichever way it is analysed, the essential point is that, as I have already said, the Judge had to, and did, consider the disciplinary process as a whole. Ms Clark's letter would only have been significant if he had proceeded on the basis that he need not refer to any unfairness at the first stage because the Appellant had not resigned in October. At one point in her grounds the Appellant seems to say that that was indeed the approach he took; but it clearly was not.
(B) NO REASONABLE PROSPECT OF SUCCESS
- In the light of my analysis above, the formal issue is whether the Judge was entitled to find that there was no reasonable prospect of the Appellant proving at a full hearing that there was anything about the post-termination handling that contributed to a cumulative repudiatory breach of her contract. In practical terms that means whether there was any reasonable prospect of her making good any of her criticisms of the disciplinary process (at either stage). If it could not be criticised it was, in Dyson LJ's language, "innocuous".
- The Appellant's pleaded complaints about the disciplinary process are at heads (d)-(h) of para. 52 of the Particulars, but they do not entirely correspond to the points made in her grounds of appeal and developed in her oral submissions. Those points are rather diffuse, but I can group them as follows.
- First, while the Appellant sensibly acknowledged that it was reasonable for the Trust to conduct an investigation into the incident of 22 April, she contended that it was unreasonable for it to decide to bring disciplinary proceedings against her. The incident, whatever its rights and wrongs, was not sufficiently serious: the Trust made a mountain out of a molehill. I am afraid I cannot agree about this. We were shown the interview notes and witness statements generated by the investigation, together with the investigators' report. The report is self-evidently careful and based on an assessment of the evidence. There was evidence from Ms Luckaine and Ms Pease that the Appellant had "pulled and grabbed" Ms Luckaine's uniform and also pushed her; and although she disputed that evidence the investigators gave reasons for finding her denial implausible. If established, that would plainly be misconduct justifying disciplinary action, and in my view it was plainly reasonable for the Trust to proceed to the next stage.
- Secondly, the Appellant complains at para. 14 of her grounds that the disciplinary process was "flawed". To some extent this consists of a general criticism, put in different ways but without particularity, that the panel conducting the hearing had already made up its mind and considered the evidence in an atmosphere of hostility towards her: it centred its attention purely on her conduct and ignored discrepancies in the evidence against her. If it had considered the evidence fairly and with an open mind, it would have appreciated that there were serious inconsistencies between the accounts of the witnesses, and it could not have concluded that the Appellant was guilty of any misconduct. She is unable, however, to point to any external evidence that the panel approached the issue with a closed mind: her submission is based on an inference from what she says was the obvious weakness of the case against her.
- As to that, it is important to bear in mind that the panel did not make any finding that she had laid hands on Ms Luckaine (if it had the penalty would very likely have been dismissal, rather than a warning). The finding was only that she had engaged in a (non-physical) altercation with her, which involved shouting (or "raised voices"), in an area of the hospital where patients had access. On that issue there was in my view quite clearly sufficient evidence to justify the panel's finding. Ms Luckaine, Ms Pease and Ms Batchelor, all of whom gave live evidence (though by a slip Ms Batchelor's name was omitted from the list of witnesses in the decision letter), made statements that supported that allegation; and there were also written statements from other witnesses – Dr Callister, Dr Gkentzis, and Ms Webb – who had heard what they variously described as "shouting", "raised voices" and "a row" between the Appellant and Ms Luckaine, though they did not themselves see anything and did not distinguish between the two participants. In agreement with the Judge at para. 16 of the Reasons, I see no way in which a tribunal could have found at a full hearing that it was unreasonable for the panel on that evidence to make the finding that it did; indeed it is hard to see how it could reasonably not have done.
- The Appellant made four particular points on this aspect which I should address:
(1) She complained of the weight that she said was given to the evidence of Ms Pease, which she said could be shown to be unreliable. But the evidence of Ms Pease was only crucial to the question whether the Appellant had laid hands on Ms Luckaine, she being the only witness supporting Ms Luckaine's account that she did. At the appeal hearing the original panel-members confirmed – though this was in any case apparent from their failure to find the allegation of physical contact proved – that the finding of inappropriate behaviour did not in any way depend on Ms Pease's evidence. There was of course ample other evidence of a non-physical altercation.
(2) She said that there was need for "interpretation" of what was meant by "raised voices", which need not mean shouting. There had been no more than an "assertive" conversation. But the evidence of all the other witnesses contradicted her account that she had not been part of any altercation. The precise language they used is immaterial: they were clearly describing the same inappropriate behaviour. The Appellant said that it was not right to decide the question by simply counting heads. But there was no reason whatever to suppose that either panel did so. (She also submitted that the ET itself should have heard the witnesses. But that betrays an important misunderstanding. If there had been a full hearing it would not have been for the tribunal to make decisions about the incident itself: its concern would only have been with the fairness of the process.)
(3) She also said that there were no patients present. But Ms Webb's statement said she was with a patient at the time that she heard the incident; and in any event what matters is that the row took place in an area where patients had access, whether or not any happened to be there at the time.
(4) She complained that Dr Callister had not been called to give evidence, despite requests made before both the original hearing and the appeal. As I have said, that criticism was evidently particularly relied on before the Employment Judge, and he dealt with it in his Reasons in some detail. The Appellant thought that he would be an important witness because he had said in his statement that when he came into the corridor following the incident he only saw two nurses, who she says were evidently herself and Ms Luckaine; and that that was significant because it meant that Ms Pease could not have been present, as she said she was. The Judge rejected that criticism on the basis that the question of whether Ms Pease was present was irrelevant, because – as already noted – her evidence was only important to the question whether the Appellant had touched Ms Luckaine. He also noted that at the appeal hearing Ms Clark had, in overt disagreement with the Appellant, refused to complain about Dr Callister not being called. I agree with him that it is for those reasons inconceivable that at a full hearing a tribunal would have upheld this criticism of the procedures.
- Thirdly, the Appellant claims that even if the Trust was entitled to find that an altercation had occurred between herself and Ms Luckaine it was unfair to impose the sanction of a final written warning. That is a matter on which the Judge was particularly qualified to form a view; but in any event I agree with him that there is no prospect that at a full hearing an employment tribunal would find that the sanction was unreasonable.
- Fourthly, the Appellant maintains her pleaded criticism that it was wrong of the Trust to proceed with a disciplinary process before resolving her Dignity at Work complaint. The Employment Judge rejected this criticism and so would I. Where her complaint about Ms Luckaine and the criticisms of her own arose out of the selfsame incident it would have made no sense to deal with the two separately. She was unable to show us any ACAS guidance to the contrary and I have found none: indeed the 2015 guidance would support the course taken.
- Fifthly, she complains that the appeal was heard by the original panel, albeit with some "additions", who, however, had virtually no say. This is simply wrong. The appeal panel was of course different from the original panel. What the Appellant is referring to is the fact that, as is common in public sector disciplinary processes, the original panel attended the appeal hearing to present its decision and to address the criticisms of it. Such a process is in principle unexceptionable and Ms Clark made no objection to it.
- Sixthly, she complained about the length of time taken by the initial investigation (three months) and disputed the explanation given by the appeal panel, which said that some of the witnesses had required their own representation. She said, repeating head (e) in her Particulars, that the delays had been deliberately engineered by the Trust in order to "discredit" her. This point does not appear to have been directly addressed by the Employment Judge, but that is unsurprising since a tribunal could not make such a finding without an evidential basis for it; and none was suggested. No such allegation appears in Ms Praisoody's skeleton argument in the EAT, and I rather doubt if it was advanced by Mr Modgill in the ET.
- I should note for completeness that the Appellant did not in her grounds of appeal or oral submissions pursue the case of "disparity" based on the assertion that it was accepted that Ms Luckaine had "physically abused" her (head (h)).
- In short, I believe that the Judge was right to find, as he did at para. 25, that what occurred in this case was "the following through, in perfectly proper fashion on the face of the papers, of a disciplinary process". Such a process, properly followed, or its outcome, cannot constitute a repudiatory breach of contract, or contribute to a series of acts which cumulatively constitute such a breach. The employee may believe the outcome to be wrong; but the test is objective, and a fair disciplinary process cannot, viewed objectively, destroy or seriously damage the relationship of trust and confidence between employer and employee.
- That conclusion was of course reached without hearing witness evidence and, as the Judge himself said, "on the face of the papers". The Appellant argued that that approach was wrong in principle. It is well established that an employment tribunal ought to be very slow to strike out a claim in which there are disputed issues of fact: see, e.g., North Glamorgan NHS Trust v Eszias [2007] EWCA Civ 330, [2007] IRLR 603, and Balls v Downham Market High School & College [2010] UKEAT 0343/10/1511, [2011] IRLR 217. However much a judge may suspect that the claimant will be unable to establish his or her version of the facts, it is necessary to bear in mind that the evidence may come out very differently at a hearing; the tribunal can always record its scepticism by making a deposit order.
- However there is no absolute rule against striking out a claim where there are factual issues – see, e.g., Ahir v British Airways Plc [2017] EWCA Civ 1392. Whether it is appropriate in a particular case involves a consideration of the nature of the issues and the facts that can realistically be disputed. There were in this case no relevant issues of primary fact. Had the matter proceeded to a full hearing the job of the tribunal would not have been to decide the rights and wrongs of the incident of 22 April, and it would not have heard evidence directly about that question. The issue would have been whether the disciplinary processes were conducted seriously unfairly so as to constitute, or contribute to, a repudiatory breach of the Appellant's contract of employment. The evidence relevant to that question in substance consisted only of the documentary record. It is true that if there were any real grounds for asserting actual bad faith on the part of the decision-makers that could not have been resolved without oral evidence; but that was not the pleaded case, and the Employment Judge was entitled to conclude that there was no arguable basis for it. Judge Hand recognised that strike-outs of this kind might not be something to be done "on a daily basis", but he said that each case must depend on its own facts and that in the present case the Judge's decision was justified. I agree.
CONCLUSION
- For those reasons I would dismiss this appeal.
CONSEQUENTIAL ORDERS
- Permission to appeal to the Supreme Court. At the end of the hearing, when I told the Appellant that we would be reserving judgment, she asked whether if the appeal was dismissed she could appeal further. I told her that the losing party would be entitled to apply for permission to appeal to the Supreme Court. It is apparent from subsequent correspondence that she has interpreted that as a grant of permission to do so. Although it has been explained to her that that is a misunderstanding she maintains her position; but following the circulation of this judgment in draft she applied for permission without prejudice to her position that it has already been granted. I would refuse that application on the basis that it does not raise an arguable point of law of general public importance which ought to be considered by the Supreme Court. It remains open to her to make an application to the Supreme Court itself.
Costs
- Following the grant of permission to appeal the Appellant asked that any costs recoverable by the Trust be limited to those of one legal representative. I treated that an application made under CPR 52.19 and directed that the Trust should only be entitled to recover the costs of junior counsel. No wider application to cap costs was made; and the Appellant has since made it clear that she was intending if successful to claim substantial amounts in respect of her own costs as a litigant in person.
- The Trust has now applied for an order that the Appellant pay its costs of the appeal to be assessed on the standard basis, with an interim payment on account. Since the appeal was not listed for more than a day I see no reason why costs should not be assessed summarily in the ordinary way. The amount of its costs shown in the schedule lodged prior to the hearing is £36,663.25. The Appellant submits that those costs are clearly excessive, but her main point is that she cannot afford to pay any such sum: she gives a fairly detailed account of her means. That is not a material consideration at this stage, though it will of course be taken into account if the Trust seeks to enforce the amount of the costs award.
- As regards the assessment, the amount claimed on the costs schedule for the fees of junior counsel £4,000, and that is the amount that I would assess in that regard. Solicitors' costs total £24,660.25. This includes the cost of preparing the bundles for the appeal. Because there were some problems with the bundles lodged by the Appellant for the permission hearing of 13 June 2017 I proposed in my judgment of that date that the Respondent prepare the bundles for the full appeal. The Appellant at first seemed content with that, and the Respondent's solicitors did the initial work; but there were then difficulties about what should be included, and in January 2018 I made a formal direction to the same effect. The Appellant submits, in effect, that it is wrong that the Trust's solicitors should recover for work done in advance of a formal order that they prepare the bundles, and indeed while an application by her in this regard was pending. Given the history which I have briefly summarised, and the fact that – even making all allowances for the fact that she is a litigant in person – the Appellant's stance about the bundles was unreasonable, I would not be prepared to disallow this element in the costs.
- The Appellant has made a few further specific points about the costs claimed, mostly focused on the use of two counsel as well as solicitors. I have dealt with the use of two counsel, but I can see no sign of inappropriate duplication as between counsel and solicitors. Having said that, I do not believe that on a detailed assessment the Trust would be likely to recover the full amount claimed for solicitor's costs, and I would summarily assess them at £18,500. With counsel's fee, that yields a total of £22,500.
- The Appellant has sought a stay of enforcement of that costs order pending the outcome of her proposed appeal to the Supreme Court. She is not entitled to such a stay as a matter of course, but in the circumstances of this case, and in particular in view of what she says about her financial position, I would grant a stay for a period of four weeks, to be continued if within that period she applies to the Supreme Court for permission to appeal until the final determination of that application and of the appeal itself if permission is granted.
Lord Justice Singh:
- I agree.
