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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Laneres v. Marks & Spencer Plc [2003] UKEAT 0033_03_2511 (25 November 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0033_03_2511.html Cite as: [2003] UKEAT 0033_03_2511, [2003] UKEAT 33_3_2511

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APPEARANCES

 

 

For the Appellant	Mr A McBurney Solicitor 338 Dumbarton Road GLASGOW G11 6TG
For the Respondents	Miss D Nicol, Solicitor Of- Messrs McGrigor Donald Solicitors Pacific House 70 Wellington Street GLASGOW G2 6SB


 


LORD JOHNSTON:

1. This is an appeal at the instance of the appellant employee against a finding of the Employment Tribunal sitting in Glasgow, that by a majority, the appellant had not been constructively dismissed from her employment with the respondents.
2. The background to the matter is that the appellant, who had a long period of employment with the respondents before going off work ill, alleged for a number of years she had been bullied by her supervisor. Evidence was given before the Tribunal of a number of specific incidents, and, although the Tribunal narrate the evidence in some detail on both sides of the question, they did not determine the matter.
3. The basis of their conclusion was that once the grievance procedure against this background had been initiated by the appellant, the investigation took too long to be categorised as reasonable, not, in fact, reaching a result before the appellant resigned. She initiated the grievance procedure in September 2000 and resigned in February 2001. Shortly after, she had been informed, while still off work, that the person she was blaming for her bullying was going to retire. There is little doubt that she reacted angrily to this situation and there is equally little doubt that it played a part, if not a major part, in her resigning. The question however is whether it was also connected with the length of time that the investigation had taken.
4. The decision of the majority of the Tribunal, was, to the effect, that the real reason for the resignation, and, thus the effective cause thereof, was the desire on the part of the appellant to obtain retribution, or at least, acknowledgement of the treatment she alleged she had received and was not connected with the length of time the investigation had taken. The minority member was of the opposite view supporting that latter position.
5. The Tribunal's findings in this respect are as follows:-

"On this question, the Tribunal is divided. The majority view is as follows:-

Given our finding that, in effect, the respondents repudiated the contract of employment, it is necessary to be satisfied, in a case of constructive dismissal, that the resignation was caused by the breach of contract in question. It is necessary for the applicant to establish that the effective cause of the resignation was the material breach of the contract of employment by the respondents.

It was said on behalf of the applicant that the consequence of the delay in completing the investigation was that the applicant could not return to work. That position of course assumed that the applicant would have returned to work following the completion of the investigation. It was said that as a result of her inability to come back to work, the applicant was suffering financially. That financial detriment had featured strongly in the applicant's evidence as one of the reasons for resigning.

The applicant certainly said in her evidence that she had lost trust in the respondents. That was why she had written her letter of resignation (R16). She said of R16:

"That is why I wrote it as financially I was struggling."

There is of course no mention of the applicant's financial position in that letter of 23 February 2001. There is a passing mention of financial difficulty in the applicant's origination application. There is no note of the applicant mentioning financial difficulties in the notes taken by Carol Nelson of the meeting of 20 December 2000. Furthermore Mrs Maddocks denied that the applicant had ever mentioned in any conversation that she was suffering financially. The majority of us conclude that finance played no part in the applicant's decision to resign.

What then was the effective cause of the applicant's resignation?

The applicant was asked when she had learned that Lena McBride was to be retiring. She said that she had been told that during the "second phone call after Christmas". That was a reference to a telephone call with Mrs Maddocks. The applicant said that she knew that Lena McBride was to be retiring soon. She said:-

"I knew it was to be sooner that she would be going. But I'd had no result. I'd had no apology. I felt she should have been sacked. I wanted an acknowledgement that Lena McBride had been in the wrong."

At another stage in her evidence she said that she had wanted it demonstrated that she (the applicant) had been telling the truth about Lena McBride.

There is another telling passage in the applicant's evidence.

The applicant was asked about her efforts to obtain employment when her employment with the respondents ended. She said, quite candidly, that she would have had no difficulty in getting a job with Tesco's or Safeway or any other supermarket if she had wanted. She said, however, that she had made no application to any other supermarket because of a fear of bullying. She did not want to let anyone bully her again. She felt that she had "wasted her years".

The applicant's complaint, as we have recorded it, is that the respondents had destroyed the relationship of trust and confidence between employer and employee. That destruction had been brought about, as was contended, by the delay in conducting and concluding the investigation within a satisfactory time period. That was her case as identified to us by Mr McBurney. But as her evidence demonstrated, there was much more to it than that. Most important of all, in the applicant's mind, was the need to see Lena McBride punished. The applicant was not concerned with the possibility that there might be two sides to the story. The majority of us take the view that the applicant's loss of trust and confidence in the respondents was brought about not by the delay in conducting and concluding the investigation. The applicant's loss of trust and confidence was brought about by her perception that Lena McBride was going to escape, as the applicant saw matters, her just desserts. Lena McBride should in the applicant's opinion have been sacked. As the applicant perceived matters she was not going to be sacked. She was simply going to be allowed to retire.

Let it be assumed for the moment that the investigation and its conclusion had occurred within a reasonable time scale. Let it also be assumed that the conclusion of the respondents was one with which the applicant disagreed. The majority of us take the view that on the strength of the applicant's own evidence to this Tribunal, she would not have returned to work. The applicant had no real intention of ever returning to work for the respondents again.

The applicant enjoyed her work with the respondents apart from the relationship which she had with Lena McBride. She had good relations with all the other persons with whom she worked. It might be thought that on learning that Lena McBride was about to depart from the respondents' employment, the applicant would have been overjoyed. The only obstacle to a good working environment was about to disappear. One might have thought that in these circumstances the applicant would have wanted to find out more from Mrs Maddocks about the precise date of Lena McBride's departure and when, following that departure, the applicant might be able to return to work. But nothing of that kind occurred.

It is for these reasons that the majority of us take the view that what caused the resignation of the applicant was the prospect that Lena McBride was going to escape punishment.

Ms McKenzie dissents from the view of the majority. Ms McKenzie takes the view that it was the length of time that it took the respondents to conduct their investigation, without ever reaching a conclusion, that brought the applicant's resignation. It had been an accumulation of events, and the applicant had not been told of any result. Ms McKenzie is of the view, therefore, that the breach by the respondents of the material condition of the contract of employment was the effective cause of the applicant's resignation.

In the result, therefore, the Tribunal was unanimous in holding that there was a breach by the respondents of the contract of employment. We are unanimous in holding that breach was material. The majority of us are of the view that that fundamental breach was not the effective cause of the applicant's resignation.

For these reasons, we are of the view that the applicant's complaint of constructive dismissal must fail."

6. Mr McBurney, appearing for the appellant, against the background of an allegation of perversity, submitted that the Tribunal had misdirected itself by not attaching importance, both to a letter of resignation (No.85) and a subsequent letter (No.88), both written by the appellant, the former being a letter of resignation and the latter being further amplification after she resigned in a letter to her supervisor.
7. He went on, in any event, to submit that the Tribunal had misdirected itself on the evidence by disassociating from the resignation the question of the length of time the investigation had taken, which it had categorised already as unreasonable and constituting a material breach of contract on the part of the respondents in relation to the appellant. He referred us to Jones v F Sirl & Son Furnishers Ltd [1997] IRLR 493 in relation to the question of several, but connected causes, in the context of assessing the effective cause of a resignation against the background of an allegation of constructive dismissal. He submitted that the only course open to the Tribunal was to find that at least one of the material causes was the length of time the investigation had taken, whatever other factors may have played in the mind of the appellant.
8. Miss Nicol, for the respondents, submitted that the Tribunal properly directed themselves to the right question upon the evidence and had determined the matter upon questions of fact, they were entitled to assess. They had carefully examined the evidence and concluded that the real reason for resignation, and, thus, the effective cause, was the totally separate question of, to put it simply, vengeance. She also focussed on the finding by the Tribunal that the appellant, apparently, on their findings, had no intention of returning to work with the respondents.
9. She also submitted a cross-appeal to the effect the Tribunal had not properly applied their minds to the test to be applied as to whether or not an investigation into a grievance could be regarded as adequate. She referred in this respect to W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 27.
10. We can deal with this latter point very quickly. In the authorities it is specifically stated that investigation should be both prompt and reasonable. Obviously, quality and depth of an investigation bears upon whether it is reasonable, but we are quite prepared to hold that a mere passage of time, whatever is going on, can categorise an investigation unreasonable if it exceeds the test of promptness to a material extent. In this case, on one view, that the investigation was not completed over was a period of five months, and, in any event, if re-initiated on 20 December, was not completed by the time of resignation in the middle of February, we consider the Tribunal were more than entitled to categorise this as unreasonable and, accordingly, a material breach of the appellant's contract of employment.
11. The question therefore to be determined by us, is whether the Tribunal properly directed itself on the issue of effective cause and we have decided that it did not. We consider that the question of length of time cannot be separated out from the whole issue of resignation in relation to the investigation, and, if it cannot be separated out, it must be included in, as one of the factors. That, in our opinion, is sufficient to determine that it was an effective cause even if there were other factors tied into the matter. We are also prepared to hold, that, upon the evidence found by the Tribunal, this was the only conclusion that they ought to have reached.
12. We should say in passing, that we do not find any evidential base for the assertion that the appellant had no intention of returning to work and, in any event, we do not consider that to be material.
13. In these circumstances we consider that the Tribunal did not apply itself to the proper test upon the evidence as regards determination of an effective cause. That being so, we consider this appeal must be allowed.
14. In these circumstances, the decision of the Employment Tribunal will be quashed and replaced by a finding by us to the effect that the appellant was constructively dismissed from her employment.
15. That being so, the matter will be remitted back to the same Employment Tribunal to assess compensation.