Appeal No.	 EAT/308/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 October 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR W MORRIS
MR P A L PARKER CBE

MRS J HARRIS	APPELLANT

NOTTINGHAMSHIRE COUNTY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR DAVID BAIRD
(of Counsel)
Messrs Warren & Allen
Solicitors
76 Bath Street
Ilkeston
Derbyshire
DE7 8FE	
For the Respondents	MR ALISTAIR SMAIL
(of Counsel)
Nottinghamshire County Council
Legal Services
County Hall
Westbridgeford
Nottingham
NG2 7QP	

	JUDGE PETER CLARK:		We have before us an appeal by Mrs Jean Harris, the applicant before the Nottingham Employment Tribunal on 10th January 2000, against that tribunal’s finding that she was not constructively dismissed by her employer, the respondent County Council, and that consequently her complaint of unfair dismissal failed. That decision was promulgated with extended reasons on 27th January 2000. The respondent resists the appeal, advancing both additional and alternative grounds in support of the tribunal’s finding.

Background

1.	The respondent operated a residential home for adults with learning disabilities, Dorkat View, in Arnold [‘the home’]. On 23rd September 1996 the appellant commenced employment at the home as a part-time care assistant. At that time the manager and assistant manager of the home were, respectively, Mr and Mrs Chadwick.

2.	On 11th March 1998 the appellant witnessed an incident involving another member of staff MR and a resident EC which, she later alleged, amounted to an assault by MR on EC. She reported that matter to management. As a result, disciplinary proceedings were taken against MR.

3.	The appellant’s action in reporting MR caused the staff at the home to split into factions; those who supported her action, those who supported MR and others who took a neutral position. The tribunal accepted that, as a result, the appellant experienced unpleasantness from members of the pro MR camp. That began shortly after she made her report in March 1998 and continued right through until she left the employment on 30th July 1999.

4.	In December 1998 Mrs Skinner was appointed manager of the home. She became aware of the split among the staff.

5.	Although found by the tribunal to be competent, they concluded that Mrs Skinner did not deal adequately with the appellant’s concerns, raised outside the respondent’s formal grievance procedure, over the treatment which she was receiving from other staff members as a result of her having “blown the whistle” on MR. The respondent had a harassment policy, properly applicable to whistleblowers, which was not implemented in the appellant’s case.

6.	The disciplinary proceedings against MR culminated in a hearing on 29th January 1999, following which he was dismissed. The appellant gave evidence against him, bravely so the tribunal thought. 

7.	Between 22nd February and 27th April 1999 the appellant was off work sick due physically to a lung infection, although a subsequent letter from her general practitioner indicated that she was also suffering from stress. 

8.	During that period the appellant was visited at home by Mrs Skinner on 22nd March, and later on 21st April. At the earlier meeting the appellant raised the possibility of a transfer to another workplace or of working different hours at the home. Her evidence before the tribunal was that Mrs Skinner told her on 22nd March that this was not possible. She returned to work at the home on 27th April.

9.	Against the decision to dismiss him MR appealed and on 27th May 1999 a meeting took place involving Mrs Skinner, Mr Martin Eaden (Assistant Director of Social Services) and the appellant. At that meeting Mr Eaden asked the appellant about a personal letter which she had written to Mrs Chadwick and which had come into the hands of MR’s trade union representative, in which she made what on the face of it were racist remarks. That letter was to form part of MR’s case on appeal. On that occasion Mr Eaden indicated that the contents of the appellant’s letter to Mrs Chadwick could form the basis of disciplinary proceedings against her. 

10.	An appeal hearing took place the next day, 28th May, but the appellant did not attend, going off sick with stress. She never returned to work. The appeal hearing was adjourned to 22nd June when she did attend. Again Mr Eaden warned her that she faced possible disciplinary action over the contents of her letter to Mrs Chadwick.

11.	MR’s appeal was successful and he was reinstated.

12.	The appellant remained off sick.

13.	On 21st July 1999 Dr Dale, the respondent’s occupational health physician, wrote to the appellant’s general practitioner, Dr Clamp, asking for a report on her extracted from his records. In that letter he wrote:

“I am told that if she does return to work she may be facing disciplinary action.”

14.	Dr Clamp replied on 28th July, having drawn Dr Dale’s letter to the appellant’s attention.

15.	On 30th July the appellant’s solicitors wrote to the respondent, complaining of lack of support for the appellant over her situation at work, causing her to become too ill to work.

16.	They referred to the threat of disciplinary proceedings against her, mentioned in Dr Dale’s letter, as the “final straw”. They contended that the respondent was in repudiatory breach of the contract of employment, which breach she now accepted. The employment was at an end. A complaint of constructive unfair dismissal to the tribunal would follow. That complaint was duly presented on about 23rd August 1999.

The Employment Tribunal decision

17.	Having set out the facts as they found them the tribunal directed themselves as to the law.

18.	They reminded themselves of the classic test propounded by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 which involves the following stages, when considering the question of constructive dismissal under s.95(1)(c) of the Employment Rights Act 1996:

(1)	what is the relevant contractual term. Here, the implied term of mutual trust and confidence, since explained and endorsed by the House of Lords in Malik v BCCI [1997] IRLR 462.

	We would add that that broad implied term includes, among other things, a duty on the employer to give an employee reasonable support to enable him to carry out his job without disruption or harassment from fellow workers. Wigan Borough Council v Davies [1979] ICR 411 and a duty promptly to redress the employee’s grievances. W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516.

(2)	do the facts as found constitute a breach of the relevant contractual term?

(3)	if so, is that breach fundamental or repudiatory, going to the root of the contract and thus entitling the employee to treat himself as discharged from further performance?

(4)	if so, did the employee resign in response to that repudiatory breach and not for some other reason? See now Weathersfield v Sargent [1999] IRLR 94 CA.

(5)	did the employee act promptly in leaving once he became aware of the breach or did he delay for any length of time such that he is to be taken to have waived the breach and affirmed the contract? See W E Cox Toner (International) Ltd v Crook [1981] ICR 823.

19.	Applying those principles of law to the facts as found the tribunal concluded:

(1)	that the relevant term was the implied term of mutual trust and confidence;

(2)	that the respondent had breached that term continuously from March 1998 through until the appellant’s resignation on 30th July 1999;

(3)	that the breach was repudiatory;

(4)	that the appellant left in response to that breach;

(5)	that she delayed for so long that she should be taken to have waived the breach and affirmed the contract. On that ground her claim that she was constructively dismissed failed. She was not dismissed by the respondent.

The Appeal

20.	We bear in mind that on appeal, where our jurisdiction is limited to correcting errors of law, by the Employment Tribunal, the first stage question, what is the relevant contractual term, is purely one of law, but the remaining questions are questions of mixed fact and law – we can only interfere where the tribunal’s conclusion on any of those questions is perverse in the Wednesbury sense. see Pedersen v London Borough of Camden [1981] ICR 674; Wood v W M Care Services (Peterborough) Ltd [1982] IRLR 413 CA.

21.	Mr Smail, on behalf of the respondent, wishes to argue that the tribunal fell into error, first by finding that the respondent was in continuing repudiatory breach of contract from March 1998 through to 30th July 1999 and secondly in concluding that such breach was the effective cause of the appellant’s resignation. However, he accepts that such arguments only arise in practice if Mr Beard succeeds in his challenge to the tribunal’s finding that the appellant affirmed the contract. In these circumstances we dealt, as a discrete point, with the contentions on that challenge.

22.	Mr Beard advances three grounds for challenging the tribunal’s conclusion which is expressed at paragraph 18 of their reasons thus:

“18.	However, she put forward her claim on the basis of there being a continuous breach of that implied term of trust and confidence from March 1998 throughout and the fact is that she did not accept that repudiation until 30 July 1999. That was a prolonged delay. We could have accepted that during the period of temporary management, perhaps form March to December 1998, that she was waiting to see if measures could have been taken to have improved relationships within Dorkat View, or to take other steps such as re-deploying her elsewhere, or other measures that might have been open to the County Council. However, in our view once, Mrs Skinner had ascertained that those options of re-deployment and taking night duty were closed off, it was apparent to her that the only course ahead to her was going to be a return to Dorkat View. She continued throughout that period and also subsequently to do her work and to be paid and to act in accordance with the procedures of both existing and new which were being brought in to the management of the home. Moreover, she received a welfare visit from Mrs Skinner and later from a personnel officer, Joy Allan, and a referral to the County Council’s occupational health service. In all of these ways, we find that she affirmed the contract of employment and did not accept repudiation by the County Council when it would have been reasonable for her to have done so even on the most favourable interpretation of the matter from her point of view. In other words, she affirmed the contract of employment.”

(1)	He submits that the breach as found by the tribunal was one which was incapable of affirmation. He submitted that it was analogous to a breach by the employer of his statutory health and safety obligations.

	We accept that there is authority for the proposition that breach by an employer of his statutory obligations cannot be waived by the employee. See Reid v Camphill Engravers [1990] IRLR 268 EAT, Lord Mayfield MC presiding. However, that is not this case. No breach of statutory duty by the employer is here relied on. The breach is solely one of the implied term of mutual trust and confidence. Such a breach may be waived. We therefore reject this first ground.

(2)	Next, he submits that the tribunal misunderstood the facts. In particular, when looking at the material delay, they failed to take into account the appellant’s periods off sick between 22nd February and 27th March and finally from 28th May. That is now how we read paragraph 18. The tribunal found that the appellant continued in employment after, we infer on her own case, being told by Mrs Skinner on 22nd March that her wish for a transfer or change in hours of work would not be possible and subsequently, that is on 27th April returned to her work at the home. 

(3)	Finally he submits that the tribunal failed to rule on a submission made on her behalf, that the final straw leading to her resignation on 30th July was not simply the fact of disciplinary proceedings being threatened against her arising out of her letter to Mrs Chadwick, which the tribunal found did not constitute a breach of contract by the respondent, but also their breach of confidentiality in disclosing that possibility to Dr Dale, who in turn passed it on to Dr Clamp in his letter of 21st July.

	There are a number of difficulties with that submission it seems to us. First, the respondent’s solicitor has no recollection of that point being taken below. See Jones v Governing Body of Burdett Coutts School [1998] IRLR 521. Secondly, if it was taken, it was on the face of it unsupported by the appellant’s own evidence – paragraphs 25-26 of her witness statement refer only to the fact of possible disciplinary proceedings against her as being the final straw leading to her resignation, as did her solicitor in the letter of resignation dated  30th July. Thirdly, and in any event, we can see no breach of confidence on the part of the respondent disclosing those possible disciplinary proceedings to their doctor, who in turn passed on that possibility to the appellant’s own general practitioner, again in strict confidence.

23.	In these circumstances we reject each ground of appeal. No error of law is made out. Accordingly it is not necessary to consider the alternative grounds raised by the respondent. The appeal must be dismissed.