Appeal No. EAT/569/02/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 December 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MRS R A VICKERS
MR G H WRIGHT MBE

MRS A ROFIQUE	APPELLANT

THE GOVERNING BODY OF 
TURVES GREEN GIRLS SCHOOL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR RANBIR SINGH
(of Counsel)
Instructed By:
Irwin Mitchell
Solicitors
Imperial House
31 Temple Street
Birmingham B2 5DB
	
For the Respondent	MR JONATHAN GIDNEY
(of Counsel)
Instructed By:
Birmingham City Council 
Legal Services
Ingleby House
11-14 Cannon Street
Birmingham B2 5EN

JUDGE J McMULLEN QC:

1	This case is about constructive unfair dismissal.  It is an appeal by the Applicant in proceedings against a decision of an Employment Tribunal sitting at Birmingham, Chairman Mr D. Kearsley, on 18 March 2002.  It was promulgated with Extended Reasons on 8 April 2002.  The Applicant and Respondent were represented by Counsel, although Mr Gidney appears before us for the first time in this case.  We will continue to refer to the parties as Applicant and Respondent.

2	The Applicant claimed constructive unfair dismissal.  The Respondent contended there had been no dismissal.  It offered no representations as to fairness.  The essential issue as defined by the Employment Tribunal was whether there had been a dismissal.  The Employment Tribunal found that there had not been.  It was not necessary therefore to consider any issue of fairness.  The Applicant appeals against that finding on grounds set out in a skeleton argument and oral submissions today.  

3	Essentially, the Applicant contends that a model capability procedure, which formed part of the contractual background to her employment, was not followed.  Notes were taken by colleagues critical of the Applicant over a period of months, but the Applicant did not discover these and when she did she contended that there had been a breach of the implied duty to maintain trust and confidence.  It was also contended that the Tribunal had not given weight to certain matters of evidence.

4	The Respondent is a technical school and college of 750 girls aged 11 to 16 in Birmingham.  The Applicant was employed as a teacher of English, initially on supply and made permanent in September 1997, until the relationship ended by her resignation taking effect on 31 August 2000. There was little dispute on the facts in this case.  The parties have very helpfully produced an agreed chronology and statement of facts.  Indeed, some of the evidence was agreed in the form of witness statements.  The Tribunal directed itself by reference to the relevant provision of the Employment Rights Act 1996, that is Section 95(1)(c) which says:

“(1) For the purposes of this Part an employee is dismissed by his employer if ...
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

The Tribunal correctly directed itself, it is accepted before us, as follows:

“For an Applicant to succeed with the claim for constructive dismissal the applicant must establish on the balance of probabilities that:
(a) the employer has committed a fundamental breach of contract;
(b) the Applicant has left employment as a consequence of the breach; and
(c) the Applicant did not delay before leaving in consequence of the breach.”

5	The Tribunal recorded that it had been referred to seven authorities culminating in Malik v BCCI [1997] IRLR 462 HL.  No criticism is made of the directions given by the Tribunal which we hold to be correct.

6	The circumstances set out by the Tribunal, by reference to the agreed facts, are that the Applicant had been the subject of concerns expressed by an independent observer.  Certain capability issues were addressed by the Applicant’s head of department in October 1998 and in April 1999 a number of colleagues of the Applicant expressed concerns about her teaching method to the deputy head.  Notes were required to be kept by anyone complaining or expressing concern.  These notes were kept by the head of department in a file marked “Confidential” within an unlocked filing cabinet in the English Department.  The Applicant had presented evidence of a campaign of ill-feeling and harassment in the common room.  She was off work ill between September 1999 and January 2000.  On 27 January the head teacher met the Applicant and her union representative to agree a phrased return to work.  Shortly thereafter a further note was placed within the file.

7	On 16 February 2000 the Applicant found these notes.  She was distressed and expressed her concern to the deputy head.  She returned to school and, through her union representative, contacted the head teacher.  The head teacher reprimanded the head of department for having left the file in an unlocked cabinet.  There were discussions following the half-term break.  The Applicant worked only two days before going off sick with anxiety.  She never returned.  However, on 22 May there was a meeting between the head teacher, a representative of the City Council which is ultimately responsible for the governors, and a full-time regional officer of the NUT, Mr Rodbourn. He proposed a solution which would involve the Applicant remaining employed until the end of December 2000 but with her resigning at the end of the summer term.  In other words, since teachers are required to give a term’s notice, she would give that at the end of the summer holidays, be regarded as continuing in employment but not be required to work.  No doubt that solution had been one which the union had anxiously worked upon, in consultation with the Applicant, in order that a solution could be found to the problems of the Applicant’s employment.  Nevertheless, quite unconnected with this, we are told, was the Applicant’s action thereafter, for on 30 May she wrote a letter as follows:

“I wish to tender my resignation.  I intend this to be effective from August 31 2000.
I have alternative employment in two very different areas but trust that if I should need a reference from you at any time in the future, it will be possible to request one.”

The head replied confirming a reference would be provided if appropriate.
8	Following the writing of the letter the Applicant got in touch with her union representative, it apparently not having taken place between 22 May and 30 May.  The request was that an enquiry should be conducted by two members of the Board of Governors.  That enquiry, it will be noted, was prompted by the Applicant and her union.  The report of these governors did not conclude that the Applicant had resigned as a consequence of finding the notes.  That was also the conclusion of the Employment Tribunal.  The Tribunal held that the Respondent was entitled to collect notes expressing concerns about the Applicant’s teaching records.  It found that these were not a secret file and that keeping the notes did not constitute a breach of the duty of trust and confidence.  That conclusion has been attacked before us today.  

9	It is not necessary for us to form a conclusion about this, nor indeed was it for the Tribunal, since the central issue for it was whether or not there was a causal link between the resignation and the finding and keeping of the notes.  

10	That holding obviously paid attention to the model procedure agreement which exists nationally and is inducted locally into the contractual document.  This provides, very sensibly, a capability procedure where a teacher may be under-performing.  It is obviously in the public interest that, where concerns are expressed by a head teacher or other line managers about a teacher’s performance, the matter is investigated, evidence is collected (see page 14 of the Employment Tribunal bundle) and when the facts are gathered a number of options are available.  Throughout the capability procedure, which seems to us to be admirable, it is clear that any teacher subject to an investigation should be kept informed. In particular, in this very case, given the background of complaints that the Applicant made and the illness which she was suffering, it was very important that she was kept informed and she has a continuing sense of grievance that the notes were not disclosed to her.

11	The Respondent in this case did not contend the dismissal was fair, simply that there was no dismissal.  It may well have been a realistic approach by the Respondent, given what appear to us to be a number of shortcomings by the Respondent in its adherence to the model capability procedure.  Nevertheless, the Tribunal never lost sight of the essential issue.  It found as follows:

“Once the applicant had discovered the existence of the notes the head teacher acted promptly to address her concerns and to explain how the notes came to be compiled.  The head teacher dealt with the applicant’s union representative and offered meetings.  The head teacher acted promptly to redress any sense of grievance which the applicant might harbour.”

12	As the Tribunal pointed out, a reprimand had been administered but the Tribunal concluded that she did not write the letter of resignation in response to any action of the Respondent.  The Tribunal found that the reasons which she gave were indeed the correct reasons and the Applicant had felt unhappy about the way in which she had been treated but had found alternative work and decided to go.  That is a finding of fact and cannot be the subject of an appeal.  The letter which we have cited contains the reasons.  The Tribunal finds that they are the correct reasons and in addition the Tribunal notes that the Applicant had advice from her trade union.  It also notes that she had taken informal legal advice.  Mr Singh, on behalf of the Applicant, resists that and told us that by reference to the Applicant’s diary, she had taken second-hand advice from a person who was a solicitor.  We think the Tribunal did no disservice by categorising that as informal legal advice.  The Tribunal not only had, on the face of the document, reasons given for the Applicant’s leaving, but was content that she had been exposed to advice from the union and some indirect legal advice too.  

13	Given that this is a question of fact, Mr Singh recognises that in the Notice of Appeal he must maintain that the decision was perverse.  A number of criticisms are made as to weight given by the Tribunal to certain findings.  He accepted that an error of law is not disclosed by a decision that a Tribunal did not give sufficient weight to a certain matter; that is entirely a matter of fact, but he did maintain his alternative position which is that a failure by a Tribunal to give any weight is an error of law.  We cannot accept that submission.  Questions of weight are paradigm issues for a first instance fact-finding Tribunal.  Given, as this proposition implies, that there was evidence before the Tribunal, the allocation of weight to any part of it is a matter for it.  Secondly, it was maintained that the Tribunal erred by drawing an inference that the head teacher had acted promptly to redress concerns.  Drawing an inference is, of course, a question of fact and suffers the same fate on an appeal to us as the submissions about weight.  Submissions about promptness are questions of degree.  They are matters of appreciation for an Employment Tribunal whose judgment upon them is not to be interfered with.  

14	What is left is a contention that that finding was not supported by the evidence.  We disagree.  The Tribunal had the agreed chronology and was able to make a judgment about what was prompt and was not prompt and made the finding that redress of the Applicant’s grievance was prompt after the discovery of the files.

15	It seems to us this case is about the central issue of fact as to what prompted the Applicant to write her letter on 30 May, as to which the Tribunal found, and we see no reason for disagreeing, that there were the reasons which she herself put forward in her letter.  Any connection between the earlier negotiations was eschewed.  It seemed to us that the Applicant had within her grasp, through her trade union representative, a solution to the problem which involved resignation and payment until the end of the year, when in fact she left at the end of August.  Precisely because that is a surprising step to take, it required investigation by the Tribunal and the Tribunal decided again that the reasons contained within her letter were indeed the reasons for her leaving.  That is a question of fact which was open to it and we are not in a position to intervene.  The appeal is dismissed.