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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Harlow v. General Healthcare Group Ltd [2002] UKEAT 0436_01_0410 (4 October 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/0436_01_0410.html Cite as: [2002] UKEAT 436_1_410, [2002] UKEAT 0436_01_0410

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APPEARANCES

 

For the Appellant	MR GERARD CLARKE (Of Counsel) Instructed by: Messrs Goldkorn Mathias Solicitors 6 Coptic Street Bloomsbury London WC1A 1NW
For the Respondent	MR RICHARD GREENING (Of Counsel) Instructed by: Messrs DLA Solicitors 3 Noble Street London EC2V 7EE


 


JUDGE PETER CLARK

1. By a decision promulgated with Extended Reasons on 16 February 2001 an Employment Tribunal sitting at London Central (under the chairmanship of Mr D H Roose) dismissed the Applicant, Dr Harlow's complaints of both wrongful and unfair constructive dismissal and disability discrimination brought against his former employer, the Respondent General Healthcare Group Ltd. A counterclaim by the Respondent succeeded and the Applicant was ordered to pay to the Respondent £14,112.
2. Against the findings that he was not constructively dismissed nor discriminated against by reason of disability the Applicant appealed to the Employment Appeal Tribunal. At a Preliminary Hearing before a division presided over by Mr Recorder Langstaff QC the disability part of the appeal was dismissed but the appeal against the finding of no constructive dismissal was permitted to proceed to this full hearing.

The Facts

3. The Appellant, a Consultant Forensic Psychiatrist, was employed by the Respondent from 5 May 1997 until his resignation on 18 November 1999 at its Redford Lodge psychiatric hospital. From 27 July 1998 until 4 January 1999 he was acting Medical Director.
4. The principal thrust of his complaint of constructive dismissal, set out in his Originating Application, was that his position was undermined in various respects by the Hospital Director, Mrs Reardon. The various allegations made against Mrs Reardon were considered and rejected by the Employment Tribunal.
5. In Spring 1999 the Appellant began looking for a new appointment. On 13 September 1999 he wrote to Dr Taylor, who was employed by the Respondent at a different site, indicating that he wished to discuss a negotiated exit. He had, since early 1999, been consulting solicitors.
6. By letter dated 28 September, through those solicitors, he raised a number of matters by way of a grievance. Although the Respondent's grievance procedure provided for a swift resolution of grievances the Employment Tribunal found that the matters complained of were far ranging and covered a period of more than 12 months.
7. That letter followed on shortly after 3 occasions between 15-18 September when he collapsed at home. He was then expected to be absent sick from work for between 6 and 8 weeks.
8. In his letter of resignation dated 18 November 1999 he cited 4 specific matters which he alleged amounted to a fundamental breach of the contract of employment by the Respondent. Each was considered and rejected on the facts found by the Employment Tribunal.
9. Subsequently he complained that the Respondent had breached the contract by refusing to deal with his grievance whilst he was off sick at the end of his employment. As to that the Employment Tribunal found that the Respondent had not acted unreasonably in leaving the grievance unresolved whilst he was off sick.

The Employment Tribunal decision

10. In summary the Employment Tribunal found, having correctly stated the law at paragraph 17 of their Reasons:

(1) that the Appellant had failed to prove any material breach of contract, let alone a fundamental breach and

(2) if the Respondent was in fundamental breach of contract the Appellant, by delaying, waived the breach and

(3) in any event such breach was not the cause of his leaving the employment.

The Appeal

11. Whilst Mr Clarke, on behalf of the Appellant, raises arguments in relation to the Employment Tribunal's alternative findings as to waiver and causation the principal hurdle for him in the substantive grounds of appeal is to overcome the Employment Tribunal's conclusion that there was, on the facts as found, no breach of contract, whether individual or cumulative, applying the 'last straw' doctrine adumbrated by the Court of Appeal in Lewis v Motorworld [1985] IRLR 465; certainly none that was fundamental (reasons paragraph 17, and under the heading 'Generally').
12. In challenging that primary conclusion, subject to the adequacy of the Employment Tribunal's reasons to which we shall return, we are reminded by Mr Greening of the limited circumstances in which we can properly interfere with what is essentially a question of fact, was the Respondent in fundamental breach of the contract of employment? See Woods v WM Car Services (Peterborough) Ltd [1982] ICR 693 (CA).
13. Unsurprisingly Mr Clarke does not dwell on the Employment Tribunal's rejection of the principal case advanced by Dr Harlow below, that is the alleged behaviour of Mrs Reardon. Instead he focuses on 2 particular complaints.
14. The first is that the Respondent refused to deal with the Appellant's grievance, formally raised in his solicitor's letter to the Respondent dated 28 September at any time prior to his resignation by letter dated 18 November 1999.
15. Mr Clarke submits that the Respondent's own grievance procedure expressly provided for speedy resolution of grievances; a term in any event to be implied into the contract. See WA Goold (Pearmark) Ltd v McConnell [1995] IRLR 516. Failure, or even refusal, to use Mr Clarke's word to deal with the Appellant's grievance amounted itself, he submits, to a fundamental breach of contract.
16. That proposition must be viewed in the overall factual matrix of this case. The Appellant was off sick. It was said that the cause of his condition was stress induced by his treatment at work. His wife had complained of post being forwarded to him. In these circumstances, it seems to us, it was open to the Employment Tribunal to find that it was not unreasonable for this employer to wait until the Appellant was well enough to return to work before processing his grievance. That was not to fall into the errors of substituting reasonableness for a contractual analysis. See Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. Rather, to assess whether even if there was a technical breach of a contractual grievance procedure, such breach was fundamental and repudiatory.
17. Similarly, the complaint about confidential post addressed to the Appellant at his place of work being open by the Respondent's staff. Correspondence was opened to prevent the Appellant being bothered with business correspondence whilst off sick, following Mrs Harlow's complaint. The specific complaint was in relation to a letter concerning private work. However, there was no evidence, as the Employment Tribunal found (reasons paragraph 14), that the envelope in which that letter was sent was marked Private.
18. Having considered the way in which this part of the appeal is put by Mr Clarke we are wholly unpersuaded that there are any grounds made out for our interfering with this principal finding by the Employment Tribunal of no repudiatory breach by the Respondent.
19. Then it is said that the Employment Tribunal's reasoning does not adequately explain why the parties have won or lost. Meek v City of Birmingham District Council [1987] IRLR 250. We are quite unable to accept that submission. As Mr Greening has demonstrated, the Employment Tribunal ruled on all the complaints raised by Dr Harlow and made findings of primary fact adverse to him. They set out the law clearly and correctly. In applying the law to the fact they expressed their conclusions succinctly but in doing so in our judgement adequately explained their reasoning in reaching their principal finding that no repudiatory breach of contract was made out. In these circumstances their alternative findings are rendered academic; we are not persuaded by Mr Clarke that those alternative findings inform the adequacy or inadequacy of their principal finding.
20. In these circumstances we shall dismiss this appeal.