Appeal No. EAT/340/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16 September 1994

	Before

	HIS HONOUR JUDGE J HICKS QC

	MR L D COWAN

	MRS E HART

MR G J HOBBS	APPELLANT

BRITISH RAILWAYS BOARD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M DUGGAN
(OF COUNSEL)
Jeremy Roberts & Co
51/55 Park Road
Peterborough
PE1 2TH

For the Respondents	MR P GREEN
(OF COUNSEL)
The Solicitor
British Railways Board
MacMillan House
PO Box 1016
Paddington Station
London W2 1YG

	JUDGE HICKS QC:  The Appellant, Mr Hobbs, worked for the Respondents the British Railways Board as a trackman from 12 July 1989 until he resigned on 14 September 1992.  He had been taken on by Mr Bailey, his supervisor and the manager of the depot at which he worked, despite a partial deficiency in his sight which had given him difficulty in getting work.  Mr Bailey regarded him as a good and willing employee, liked him and said in evidence that he would "welcome him back tomorrow".

	In October 1991 a fellow employee and friend of Mr Hobbs, a Mr Renwick, indecently assaulted Mr Hobbs' 10 year old step-daughter in his, Mr Hobbs', home.  I state that as a fact because on 21 September 1992 Mr Renwick was convicted of that offence and sentenced to 12 months' imprisonment, but it must be remembered that at the time of the events with which the Industrial Tribunal had to deal that was an accusation, not something which British Rail could take as established.  I say that Mr Renwick was a fellow employee because both of them were employed by British Rail, but they worked in different depots.

	That was an appalling tragedy and placed Mr Hobbs in a dreadful position both at work and at home, aggravated he said by harassment of his step-daughter and himself which he attributed to Mr Renwick and his friends or relations and by the prospect that if Mr Renwick pleaded not guilty his young step-daughter would have to undergo the ordeal of giving evidence at the trial, as indeed in the event happened.  The stresses which he and his family must have endured hardly bear contemplation and we express our inadequate sympathy to him and them, a sympathy felt as we are sure by everyone who has had to consider the matter. 

	After resigning Mr Hobbs complained to the Industrial Tribunal of unfair dismissal and I pick up the history from paragraphs 4-11 of the Industrial Tribunal's Reasons.  After reciting in paragraph 4 that Mr Hobbs complained of Mr Renwick's harassment to the Child and Family Guidance Service of Winchester Health Authority, who in turn wrote to the Hampshire Constabulary, the Tribunal continue in paragraph 5:

		"Mr Hobbs returned to work after the incident.  He worked at the depot in Eastleigh, whilst Mr Renwick worked in another division of the respondents, his work brought him into sporadic contact with the applicant.  It was Mr Hobbs' evidence that during some weeks he would see Mr Renwick daily and in other weeks he would see him once or twice.  They did not work together but Mr Hobbs found Mr Renwick's presence on the site where he worked distressing.

		6.  During the ensuing months Mr Hobbs had a certain amount of certificated sickness absence and in July 1992 Mr Bailey spoke to Mr Hobbs to investigate the causes of the latter's sickness absences.  It was during the course of these discussions that the full import of what had occurred became known to Mr Bailey, for Mr Bailey's evidence was that up until then he had merely heard rumours.  When Mr Bailey saw and heard for himself what Mr Hobbs had to say, he suggested the involvement of the respondents' Welfare Officer.  Mr Hobbs agreed and within days a meeting was arranged between Mr Smith, the Welfare Officer, and Mr Hobbs, such meeting taking place on the 9 July 1992... After the meeting Mr Smith took immediate steps to visit the supervisor of Mr Renwick's workplace and received assurances from the supervisor that Mr Renwick was being allocated work (in so far as it was possible) away from the depot where the applicant worked.  Mr Bailey had been given a similar assurance when he, after his meeting with Mr Hobbs, went to speak informally to Mr Renwick's supervisor.

		7.  Following the meeting with Mr Smith, Mr Hobbs was referred to the respondents' medical officer for an examination, as Mr Smith was unfamiliar with the medication which had been prescribed for Mr Hobbs.  Within a few days of that examination, Mr Hobbs consulted his own doctor and was signed off work suffering from stress.

		8.  Very clearly Mr Hobbs found this time to be a great strain.  He had enquired of Mr Bailey at their meeting in July about the possibility of a transfer away from the depot at Eastleigh.  Mr Bailey had responded that such a transfer was not beyond the bounds of possibility although there might be some problems due to the medical restriction placed upon Mr Hobbs when he was originally employed.

		9.  In August 1992 Mr Hobbs and his wife asked to see Mr Smith again.  A meeting was arranged for the 17 August.  At this meeting Mrs Hobbs demanded that her husband be transferred to another job and further demanded the dismissal of Mr Renwick.  This meeting ended inconclusively, for Mrs Hobbs became intemperate in her language, which is perhaps understandable by reason of the stress of the impending trial at which the family would have to give evidence.  Mr Smith had explained during the meeting that he could not prejudge the outcome of the trial.  He further explained that Mr Hobbs was currently on certificated sickness absence and that his job was entirely safe and that there was no pressure upon him to return to work before the trial, whereafter both the respondents and Mr Hobbs would be in a better position to consider the possibility of transfer. [There is a reference to the report of that meeting].

		10.  Mr Hobbs remained off sick thereafter and by an undated letter delivered to the respondents on the 14 September he resigned.  [There is a copy of the letter]

		11.  Mr Bailey upon receipt of the letter was both surprised and concerned.  He therefore went to see Mr Hobbs at his home but, finding him out, called at the shop where Mrs Hobbs worked and there found the applicant and spoke to him.  Mr Bailey enquired whether Mr Hobbs really wished to resign and was met with an affirmative response."

	As was not and is not in dispute this case fell to be considered under section 55(2)(c) of the Employment Protection (Consolidation) Act 1978, which the Industrial Tribunal quote as follows, that there is a dismissal for the purposes of claiming unfair dismissal if, inter alia:

		(c)	the employee terminates that contract with or without notice in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct."

	As the Appellant rightly concedes, the Industrial Tribunal correctly directed itself on the authority of Western Excavating (ECC) Limited v Sharp [1978] ICR 221 that to constitute a dismissal under that provision "the employers' conduct must be such as to entitle an employee to terminate the contract without notice.  In other words the employee must be entitled to leave in response to a fundamental breach of contract on the part of the employer".

	It is common ground that the relevant term here is an implied obligation on the employer to take reasonable steps for the welfare of the employee including reasonable steps by way of support in such circumstances as obtained in this case.  That is the way in which it was put to us by Mr Duggan for the Appellant and accepted by Mr Green for the Respondent.  The Industrial Tribunal put it more shortly as an implied term that an employee is entitled to support from his employer and Mr Duggan rightly does not cavil with that.

	Having correctly directed itself in those terms the Tribunal dealt with the matter as follows:

		"Has this term been breached?  On the facts before us we cannot see that it has, for the applicant was not criticised for being on certificated sickness absence on the contrary, he was assured that his job was safe.  The applicant was not refused a transfer when he asked for it, he was told to await the outcome of Mr Renwick's trial and thereafter the position could be fully considered.  We ask ourselves whether the employers, by failing to suspend Mr Renwick pending his trial, was such unreasonable action on the part of the respondents as to amount to a breach of the implied duty to support the applicant.  We consider that a reasonable employer may well have suspended Mr Renwick and a reasonable employer may well not have done so, in which case the respondents' actions must fall within the parameters of reasonableness.  This being so, we cannot see that the respondents were in breach of the implied term to give support to the applicant.  In the absence of such a breach, it follows that we conclude that the applicant did not resign in response to it and his application must therefore fail.

In paragraph 14, after referring to why they had given full reasons, they say:

		"..... in his Originating Application the applicant complains that he resigned because of the respondents' refusal to transfer him.  Before us the applicant shifted his ground claiming that he resigned in response to the harassment which he and his family suffered at the hands of Mr Renwick and the respondents' failure to take action to stop that harassment.  We have made our findings regarding the transfer, as for the harassment, the allegations related largely to harassment away from the workplace and apart from the fact that this was not part of the applicant's original complaint, there was no act complained of between July and mid-September when the applicant finally resigned and therefore there was no action which could amount to employer repudiation sufficient to entitle the applicant to resign on 14 September".

The Tribunal therefore dismissed the application.

	Mr Duggan put in the forefront of his argument the following propositions.  First, that the onus was on the employer to show that there were no further possible steps that could have been taken in support of the employee, and for that he relied upon Wigan Borough Council v Davies [1979] ICR 411 and, secondly, he submitted that the error here on the part of the Tribunal was its failure to consider what other steps by the employer could have been taken.

	As to the first of those propositions, the relevant passage of the judgment in the Wigan case is in our view at page 418G where, giving the judgment of the Employment Appeal Tribunal, Arnold J. said:

		"We do not think that it is an outrageous or inconvenient conclusion that where a party has an obligation to take reasonable steps to achieve something, and is found to have taken no step or no significant step at all, towards that end, the obligation of demonstrating that there was no reasonable step which could have been taken should be found to lie upon that party.  And we do not think that in the circumstances of a case such as this it is possible to say that this industrial tribunal were wrong in the conclusion reached upon that topic:  or to put it another way, that the absence of evidence would justify us in overturning the decision of the industrial tribunal."

The decision of the Industrial Tribunal in that case had been one in favour of the employee and the appeal was by the employer.

	On that we have the following observations; first the condition upon which the whole proposition stated by Mr Justice Arnold is founded, namely that the employer "is found to have taken no step or no significant step at all" simply does not obtain in this case, since there are findings of fact by the Industrial Tribunal that steps were taken.  

	Secondly that passage appears in the judgment in that case, as statements about onus normally do, in response to an argument by the losing party that there was no relevant evidence on the point at issue, with the express or implied corollary that it was for the other party to call such evidence.  The relevant grounds of appeal there by the employer were on this matter that there was no evidence at all of anything which the employers could or should have done which would have prevented or significantly reduced the difficulties which the employee undertaking the material job brought about.  The decision must be read in that light.  Here there was evidence both of what the employers in fact did and evidence in relation to further steps, in particular suspension of Mr Renwick or transfer of Mr Hobbs, which it was suggested by the employee they should have taken.  The Tribunal made findings on the basis of that evidence.  There was no lacuna leading to competing submissions about onus between which the Tribunal had to decide. 

	Thirdly - and this leads into Mr Duggan's second proposition - one must not, in our judgment, confuse the question of where the onus lies in relation to a particular issue with the question what the true nature of that issue is.  The issue here was not what, in the opinion of the Industrial Tribunal, were the steps which the employers should have taken, but whether the course actually followed by the employers was in fundamental breach of its obligation to take reasonable steps by way of support of Mr Hobbs, for which purpose, as Mr Duggan rightly conceded, the Industrial Tribunal should not substitute its own judgment for that of the employers but should consider whether what the employers actually did was within the range of reasonable responses of a reasonable employer to the situation, and it is quite plain that that was the question which the Industrial Tribunal asked itself.

	In our view the Industrial Tribunal therefore clearly addressed its mind to the correct question and reached a conclusion on it which was open to it on the evidence which it had heard and the facts which were found.

	That would suffice to dispose of this appeal, but in deference to Mr Duggan's careful and sustained argument we express our views on what we take to be the most salient of the particular criticisms on which he laid stress.  The first group centres on the proposition, which Mr Green accepted, that in such circumstances the employee is entitled to have a complaint taken seriously and properly investigated.  Mr Duggan's criticism is that Mr Hobbs' complaint to Mr Bailey in July 1992 was not seriously or properly investigated.  As to that, first that is clearly an issue of fact and it is not our province to upset the Industrial Tribunal's conclusion.  It is true that their Reasons do not expressly analyse the employers' conduct in terms of the words "complaint" and "investigation", but they deal with the substance of the point and in any event their Reasons are likely to be framed in such a way as to deal with the way in which the Applicant's case was presented to them.  They cannot be judged by reference to the way in which it was argued before us.

	Secondly, the word "complaint" in our view shifted its meaning in the course of the argument.  The main body of Mr Duggan's criticism centres on what he calls the complaint of harassment made by Mr Hobbs in relation to Mr Renwick, but there seems to have been no evidence that Mr Hobbs ever made any formal complaint in that respect, at least until his wife's outburst at the second interview with Mr Smith.  So far as the employers knew the matter plainly arose, on the Industrial Tribunal's unchallengeable findings, not by way of complaint from Mr Hobbs but when Mr Bailey took the initiative nine months after the assault of enquiring into the reason for Mr Hobbs' increasing absences.  The question therefore was as to the reasonableness of the employers' response to that situation and what followed from that enquiry by Mr Bailey.
 
	Thirdly, there was in our view ample evidence on which the Industrial Tribunal could find the employers' response to be a reasonable and responsible one, as they did.
Had they been asked in Mr Duggan's precise terms whether the employers seriously and properly investigated what came to their attention, it is plain that their answer would justifiably have been "yes".

	Mr Bailey was the person with the primary responsibility, and a small but telling feature of the evidence was Mr Smith's at page 29 of the Chairman's Notes that when telephoned by Mr Bailey:

		"at first I suggested that following week and Mr Bailey asked for the interview to be sooner - my impression was that I should treat it as a matter or urgency."

Apart from calling in Mr Smith and considering the question of the transfer of Mr Hobbs, as to which the Tribunal had ample evidence on which they could, as they did, find Mr Bailey's approach a reasonable one, he discussed with Mr Renwick's supervisor, as did Mr Smith, the position in relation to the accusations against Mr Renwick.  The Industrial Tribunal clearly considered that as a result of that discussion the responsible members of the employers' staff were entitled to reach the conclusion which they did.  It was a matter for them.

	Mr Duggan particularly complained that Mr Hobbs was not told of what was being done following those consultations, but his own evidence at page 7 of the Chairman's Notes does not establish that and it does not seem to have been put to Mr Bailey in cross-examination.  It was put to Mr Smith but his answer was naturally that that was a matter for Mr Bailey.

	Mr Duggan dealt more briefly with other points in the Grounds of Appeal and indeed as we understood it presented his case on the basis that the detail there was for the most part subsumed in the broader propositions which he had advanced and which we have dealt with.  He accepted that he could not make good the complaint in ground 3 or 4 that there was no evidence that the employers had even considered whether to suspend Mr Renwick.  He did persist in the submission under ground 7 that Mr Bailey should have passed the request for transfer to higher authority, but that cannot be sustained for two reasons.  First Mr Bailey himself seems to have had ample authority to put the necessary machinery into motion, and secondly and more fundamentally it is the conduct of the employers British Railways Board as a whole, not just of individuals, which it was for the Industrial Tribunal to consider and to which their findings relate.

	For these reasons we find no error of law on the part of the Industrial Tribunal and although, as I have made clear, we share the sympathy which they clearly felt for the Appellant, we nevertheless must dismiss the appeal.