Appeal No. UKEAT/0052/07/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 July 2007

Before
HIS HONOUR JUDGE PETER CLARK
MR M WORTHINGTON
MS G MILLS CBE

DR S GORAI	APPELLANT

MRS D PATEL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS K MOSS
(of Counsel)
Instructed by:
Messrs Curwens Solicitors
Crossfield House
Gladbeck Way
Enfield
Middx.
EN2 7HT	
For the Respondent	MISS J SHEPHERD
(of Counsel)
Instructed by:
Messrs Palmers Solicitors
19 Town Square
Basildon
Essex
SS14 1BD	

SUMMARY
Contract of employment – Sick pay and holiday pay
Unfair dismissal – Constructive dismissal
Unsuccessful challenge to ET findings as to (a) constructive dismissal and (b) entitlement to contractual sick pay.

HIS HONOUR JUDGE PETER CLARK

1.	The parties are Mrs Patel, Claimant, and Dr Gorai, Respondent.  We shall so describe them.  This is an appeal by the Respondent against the judgment of the Stratford Employment Tribunal, chaired by Ms JM Laidler, promulgated with reasons on 28 November 2006 following a hearing on 9-11 August and two days deliberations in private on 16-17 October.  By that judgment, the Tribunal upheld the Claimant’s complaints of constructive unfair dismissal and unpaid sick pay.  A claim for holiday pay was dismissed.  There is no cross-appeal against that part of the judgment.

Background
2.	The Claimant is married to Dr Patel, who, until 3 January 2005, practised from the Clements House Surgery.  He had done so since 1986.  Since that time he had employed the Claimant as practice manager.  On 3 January 2005 the Respondent took over the practice in circumstances where the employment of the Claimant and other staff members transferred to the Respondent.  Those other employees were Brenda Collins and Sheila Matthews, healthcare assistants, and Julia Swindell, the receptionist.

3.	The Tribunal’s findings of fact show that relations between the Claimant and Respondent were less than ideal and gradually deteriorated.  Further, from the outset of the Respondent’s tenure complaints were made by Mrs Collins and Mrs Matthews about the Claimant’s alleged bullying manner, something which they had previously experienced, but which they claimed had not been addressed by Dr Patel, her husband.
4.	The first question for the Tribunal was whether the treatment, complained of by the Claimant, amounted to a breach of the implied term of mutual trust and confidence entitling her to resign, as she did on 1 September 2005, in circumstances amounting to constructive dismissal.  Based, we think, on their findings of fact, the Tribunal expressed their conclusions on this aspect of the matter at paragraphs 51 to 53 of their reasons.

5.	At paragraph 51: 
“The Tribunal is satisfied that the Respondent did act in a way that was designed to destroy the employment relationship and in breach of the implied term of trust and confidence in the manner in which he dealt with the Claimant from the time he took over the business in the allocation of her duties to others without detailed consultation with her and even in the instructions given to solicitors and the manner in which that correspondence was dealt with.  The Tribunal is satisfied that the Claimant did not affirm this breach in her own conduct and was entitled to resign when she did and claim constructive dismissal.”

6.	At paragraph 52, the Tribunal make an alternative finding in relation to the: 
“last straw principle”
	
7.	Paragraph 53:  
“The Respondent has not advanced a reason for the Claimant’s dismissal and therefore dismissal is unfair.”

8.	As to the claim for sick pay, the Tribunal said at paragraph 55:-
“With regard to sick pay however, the Tribunal is satisfied that there has been an unauthorised deduction.  The Claimant had not exhausted her entitlement to contractual sick pay.  She was not sick from 5th May to 13th July but told to stay away.  The times that she was off sick did not exceed the 26 weeks allowed for in the specimen contract seen by the Tribunal.  She is therefore entitled to be paid her month salary for August, less the £306.90 [SSP] paid to her.” 

The Appeal
Constructive dismissal
9.	It is well settled, as Ms Moss accepts, that the question as to whether the employer was in repudiatory breach of the contract of employment, entitling the employee to treat herself as discharged, is essentially one of fact for the Employment Tribunal, see Pederson v London Borough of Camden [1981] ICR 674.  Thus absent a patent misdirection in law and none is alleged here, it is not for this Appeal Tribunal to interfere because it might have reached a different conclusion on the facts, see for example, Woods v WM Car Services Peterborough Ltd [1982] IRLR 413, (CA).  The appellant must therefore mount the high hurdle of perversity as explained by the Court of Appeal in Yeboah v Crofton [2002] IRLR 634.  Further, the Tribunal was obliged to give adequate reasons for its conclusion that the Claimant was constructively dismissed, see Anya v The University of Oxford [2001] IRLR 371, English v Emery Reimbold [2003] IRLR 710.

10.	Against that background we turn to Ms Moss’s submissions in support of this part of the appeal and Miss Shepherd’s response.  

11.	Ms Moss has subjected paragraph 51 of the Tribunal’s reasons to close scrutiny.  She takes two points of construction.  First she contends that “the manner in which he (the Respondent) dealt with the Claimant from the time he took over the business in the allocation of her duties to others without detailed consultation with her”, relates only to the allocation of duties, not to the wider picture of the Respondent’s treatment of the Claimant painted in the Tribunal’s earlier findings of fact.  Miss Shepherd submits that there is a missing comma after the word “business” in that passage.  What the Tribunal are referring to at paragraph 51 (she submits) are three heads of conduct on the part of the Respondent: 

(a) the manner in which the Respondent dealt with the Claimant from taking over the business, 
	(b) the allocation of her duties without consultation, and 
(c)	the Respondent’s instructions to solicitors and the manner in which correspondence was dealt with.

As to the third head, Ms Moss seeks to draw a distinction between, (1) the instructions given by the Respondent to his solicitors, which could not affect the relationship of trust and confidence since they would not be known to the Claimant until communicated to her, and (2) the correspondence between solicitors, particularly letters from the Respondent’s solicitors.

12.	On both counts we agree with Miss Shepherd.  We shall approach paragraph 51 on that basis.  More substantively Ms Moss submits that, even on that construction, the Tribunal has failed to explain its reasoning, linking their findings of fact with their conclusion that the implied term of trust and confidence was breached.  We accept that further detailed reasoning could usefully have been provided by the Tribunal.  However, we bear in mind the approach of the Court of Appeal in English, see particularly the judgment of the Master of the Rolls paragraph 89.

13.	With the assistance of Miss Shepherd, and in particular analysis at paragraph 12 of her written skeleton argument, we find that we are able to put flesh on the three heads of conduct mentioned in paragraph 51, to understand why in accepting the Claimant’s case below the Tribunal, based on their findings of fact, concluded that the term had been breached.  We are equally satisfied that the parties, with their knowledge of the evidence and argument during the hearing below, know why they won or lost.

14.	We reject Ms Moss’s separate submission that in relation to the allocation of duties, the Tribunal failed to ask themselves whether the Respondent had reasonable and proper cause to allocate duties as he did.  Those duties being staff contracts, reasons (paragraph 12) and opening the post and, “choose and book” (paragraph 24).  True it is that an employer has a degree of discretion in the allocation of duties between staff members, particularly in a small operation such as this.  However, what the Tribunal accepted was the Claimant’s case that the alterations were designed, to, or to the Respondent’s knowledge had the effect of undermining her position as Practice Manager (see in particular reasons paragraph 30, last two sentences).

15.	In these circumstances we reject grounds two and three of the Notice of Appeal.  Having done so, it is unnecessary to consider the Tribunal’s alternative finding as to the “last straw” (reasons paragraph 52).  In short, we find that, whilst not ideal, the Tribunal has provided sufficient reasons to demonstrate why they reached the conclusion which they did on the constructive dismissal issue.  Further, that was, in our judgment, a permissible conclusion on the facts as found.  It cannot properly be categorised as perverse as Ms Moss invites us to do.

Sick pay
16.	The issue here was whether the Claimant was entitled to contractual full sick pay for the month of August 2005.  It was common ground that she was paid in full for the months of May, June and July.  She received statutory sick pay for August.  She went off work on 25 April.  Her sick absence was treated as commencing on 13 July.  The contractual sick pay provision in her case was for 26 weeks at full pay.  The Tribunal found that she had not exhausted that entitlement by 1 September 2005, therefore she was entitled to her full pay for August, less SSP paid.

17.	Ms Moss points out that the contractual sickness procedure required the Claimant, following seven days sickness, to provide a doctor’s certificate within the next three days.  On the agreed facts sick notes for the period 13 July to 11 September were not provided until some time between 15 August and 1 September.  In these circumstances Ms Moss submits that the Claimant’s failure to comply with the procedure, following the first seven days sick absence, disentitled her to contractual sick pay during August.

18.	Miss Shepherd points to the factual matrix.  It was the Claimant’s case that she remained away from work after a meeting with the Respondent on 5 May because the Respondent told her to do so.  That evidence was accepted by the Tribunal.  Thus she did not believe that sick certificates were appropriate.  In any event, sick notes were provided during August.  The Respondent accepted that she was sick during that month because SSP was paid.  The contractual terms provided for full pay for 26 weeks sickness based on the Claimant’s long service.

19.	We again prefer the submissions of Miss Shepherd.  The factual background was before the Tribunal.  They found that the Claimant was contractually entitled to full pay and not SSP during August.  We can find no error of law in that conclusion.

Disposal
20.	It follows that despite the best endeavours of Ms Moss we are not persuaded that any error of law has been made out and consequently this appeal fails and is dismissed.