Appeal No.	 EAT/0124/03/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 September 2003

Before
HER HONOUR JUDGE WAKEFIELD
MR D J JENKINS MBE
MISS S M WILSON CBE

MRS W G TOLSON	APPELLANT

THE GOVERNING BODY OF 
MIXENDEN COMMUNITY SCHOOL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR N SMITH
(of Counsel)
Instructed by:
Family Legal Protection
Direct Line Insurance
1 Cathedral Square
Trinity Street
Bristol BS1 5DL	
For the Respondents	MS B CRIDDLE
(of Counsel)
Instructed by:
Calderdale Council Legal Services
Crossley House
Crossley Street
Halifax HX1 1UG

HER HONOUR JUDGE WAKEFIELD

1	This is an appeal by Mrs Wendy Tolson against a Decision promulgated on 2 January 2003 of an Employment Tribunal sitting at Leeds by which her complaint of unfair dismissal was dismissed.  The appeal is on grounds that the Employment Tribunal, in concluding that the circumstances in which the Appellant left the employment of the Respondent did not amount to constructive dismissal, took into account an irrelevant factor and one which they should not, as a matter of law, have taken into account.  

2	The brief and undisputed background facts were that the Appellant was employed from             1 September 2000 at the Mixenden Community Primary School as a Senior Teacher with certain specific duties.  She was absent from her duties from 28 February 2002 to 22 April 2202, by reason of a medical problem.  When she returned there was a new headmistress and changes had been made in the timetable and in the responsibilities expected of the Appellant, at least for the immediate future.  The Appellant was unhappy about these changes and initiated a formal meeting with the Respondent on 7 May 2002, at which her union representative was present.  On 8 May 2002 she was signed off work by her doctor as being sick, and she resigned on 14 May.  She claimed to have been unfairly dismissed.  

3	The Employment Tribunal, at the hearing on 9 December 2002, had oral evidence together with documents, and made extensive findings of fact in paragraph 2 of the Decision, and none of those findings is challenged before us.  The Tribunal then considered section 95 of the Employment Rights Act and the circumstances in which an employee may claim to be constructively dismissed, citing the case of Western Excavating -v- Sharp, of which we have been given a copy in the All England Reports 1978 Vol 1 page 713.  They also looked at the case of Woods -v- W M Car Services Peterborough Ltd [1981] IRLR 347; and at Lewis -v- Motorworld Garages Ltd [1985] IRLR 654 and Mahmood -v- The Bank of Credit and Commerce International [1999] IRLR 462.  None of this analysis is criticised, and nor could it be.  

4	The Employment Tribunal then concluded that there had not, in all the circumstances, been a fundamental breach of the Appellant’s contract.  They set out, in paragraphs 8, 9 and 10 of the Decision some of the factors to which they had regard in reaching that conclusion.  The Decision then continued, in the passages at the heart of this appeal, as follows:-
“Considering the matter objectively we have to ask ourselves whether those failures are sufficient for the applicant to say that she can no longer trust the respondents.  One of the things we considered when answering that question is what the applicants’ response to those changed arrangements was.  One of the things she could have done was to go and talk to the head teacher about them.  She did not do so.  She could, and within the terms of her contract perhaps should, have raised a grievance through the grievance procedure.  She did not do so.  Instead she asked for the assistance of her union, thus formalising the position.”

5	Immediately following that passage, in a long paragraph 11, the Tribunal made further findings as to the circumstances which had led up to the Appellant’s resignation.  Finally, the Tribunal say, in paragraph 12, the following:-
“Even if the applicant felt, after the meeting of 7 May, that her contract had been breached and that she had concerns as to whether she could trust the incoming head mistress, we conclude that the applicant ought to have utilised the grievance procedure.  Given that she had responsibility for the staff handbook, we find that she ought to have been aware of that procedure.”

What is said by the Appellant is that in these passages the Employment Tribunal is wrongly taking into account her conduct or failures rather than concentrating only, as it is argued should be the case, on the conduct of the Respondent.  To give any weight in determining liability, as opposed to quantum, to supposed failings of the Appellant to follow grievance procedures prior to resignation, where trust and confidence has, on the Appellant’s case, wholly broken down, is said to be a fatal misdirection and an error in law.  

6	For the Respondents, it is argued that the passages in paragraphs 10 and 12, so criticised, are merely references by the Employment Tribunal to legitimate factors which were taken into account in assessing the severity or reasonableness of the Respondents’ conduct, and whether that conduct entitled the Appellant to regard herself as being dismissed.  It is denied, on behalf of the Respondents, that there was any confusion by the Employment Tribunal of the issues of liability with that of contributory negligence, as affecting quantum.  Finally, it is argued that if an error of law, such as alleged, was made it does not vitiate the entire Decision.  

7	In reaching our conclusion, we have reminded ourselves of the observations of Lord Denning in Western Excavating -v- Sharp where he said the following:-
“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  He is constructively dismissed.  The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice.  But the conduct must in either case be sufficiently serious to entitle him to leave at once.  Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.  He will be regarded as having elected to affirm the contract.”

We have also looked again at the case of Woods, but find no additional assistance from that case.  

8	We are aware that it is not for this Appeal Tribunal to substitute its own view as to whether or not there was in the circumstances, as found by the Employment Tribunal, a fundamental breach of the Appellant’s contract.  The only question for us was whether the Employment Tribunal actually or apparently took into account an irrelevant factor.  We have been persuaded that they did.  The conduct to be considered when determining an issue as to constructive dismissal is that of the employer.  An alleged failure by the employee, for example, regarding following or not following certain grievance procedures, cannot be relevant.  On that ground, therefore, the appeal is allowed and the case is remitted for rehearing by a differently constituted Tribunal.  

9	This being the result, we do not find it necessary to make any findings as regards the second ground of appeal save to say that we do not agree with the analysis made by the Employment Tribunal in the final two sentences of paragraph 12 of the Decision.