Appeal No. UKEAT/0437/03/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 November 2003

Before
HIS HONOUR JUDGE BIRTLES
MR J HOUGHAM
DR K MOHANTY JP

MRS MARILYN CUNNINGHAM	APPELLANT

OAKLANDS COLLEGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MOHINDERPAL SETHI
(Of Counsel)
Instructed by:
Messrs Hawkins Russell Jones
Solicitors
Welwyn Garden City Office
Gate House
Fretherne Road
Welwyn Garden city
Hertfordshire
AL8 6RD
	
For the Respondent	MS CATHERINE RAYNER
(Of Counsel)
Instructed by:
Messrs Levenes
Solicitors
Ashley House
235-239 High Road
Wood Green
London 
N22 8HF	

JUDGE BIRTLES

1.	This is an appeal from the decision of an Employment Tribunal sitting at Watford on 10-12 March 2003.  The judgment was sent to the parties and entered in the Register on 16 April 2003.  The chairman was Ms Anesta Weekes QC.  The members were Ms L Barnett and Ms D Scott.

2.	The claim by the Appellant was for constructive dismissal.  The Tribunal’s decision is in conventional form and sets out the claim in paragraph 1 and the Respondent’s case in paragraph 2, representation and the issues that the Tribunal had to decide, paragraph 5.  

3.	The Tribunal made findings of fact in paragraphs 8 - 19, recorded the submissions made by the parties in paragraphs 20 and 21, set out the law in paragraph 22 and reached its conclusions in paragraphs 23 and 24.  The Tribunal unanimously decided that the Appellant had not been constructively dismissed and that her letter of resignation dated 16 July 2002 was a genuine letter of resignation.  

4.	As the Tribunal’s conclusions are in very short form I propose to read them:

“23.  The Tribunal reject the Applicant’s contention that her case on its facts is supported by the decision of Abbey National Plc -v- Robinson Appeal no EAT/743/99.  The facts and circumstances of that case are very different from the facts of this case.  In Robinson the Respondent company investigated a complaint of serious harassment against the complainant and found the case well founded.  They however failed to move the “guilty” party away from his position as line-manager to the complainant.  Whilst the complainant was at home on sick leave the Respondent tried to resolve the matter unsuccessfully.  For the period of one year after the initial events there were a number of actions taken by the Respondents which amounted to a breach of the implied term of trust and confidence ending with the “final straw” last act which caused the complainant to terminate the contract.  In this case there are no sequence of events or series of further acts committed by the Respondents during the 2-year period of secondment of the line Manager after the breach of contract relied upon in 1999.  The decision to send the Applicant back to be line-managed by Mr McCartney (I interpolate the line manager in this case) in 2002 is a fresh and separate event from that of the breach in 1999 (although the Applicant would be entitled to rely upon the 1999 event as important historical background if her case was that the fundamental breach of contract was in 2002, this however was not the Applicant’s case).

24.	The applicant waived her entitlement to repudiate the fundament breach of contract, which occurred in 1999.  It is understandable that she did not resign in 1999 when her line manager was seconded, as the subject matter of her complaint was removed from the workplace, effectively resolving the matter.

None the less, her inaction precludes her from relying on the breach of contract in 1999 to form the basis of her claim, that the failure to investigate in 1999, which is the breach she relies on, continued up to the decision to transfer her back to the line-management of Mr McCartney in 2002, so causing her to resign as she did.  The Tribunal rejects the Applicant’s submission that she is entitled to rely upon a breach, which occurred some 3 years ago to support a claim for constructive dismissal.

The Tribunal find therefore that the Applicant was not unfairly constructively dismissed.”

5.	From that decision the Appellant appeals by a Notice of Appeal received by the Employment Appeal Tribunal on 28 May 2003.  It is not necessary for me to set out that Notice of Appeal.  The principal ground has been argued today by Mr Sethi for the Appellant and by Ms Catherine Rayner for the Respondent.  We are grateful to them both for their skeleton arguments and for the submissions that they made to us.

6.	The core of this appeal is that the Tribunal failed to consider the primary or alternative submission made to it by the Appellant through her representative at the Employment Tribunal and that was that the resignation in 2002 was effectively caused by the decision of the Respondent to return the Appellant after a 3 year gap to be line-managed by Mr McCartney.  I do not propose to set out the detailed facts of the case for the purposes of this judgement which we think are accurately summarised, in the findings of fact made by the Tribunal, paragraphs 8-19.  In any event, of course, we cannot as an Appellate Tribunal go behind those findings of fact. 

7.	In summary form the Tribunal found that the Appellant was employed by the Respondent from 1982 up to 2002 when she had attained the position of workforce development manager.  They found as a fact that in March 1999 the Applicant, Appellant here, complained about her then line manager, Mr McCartney.  It is not necessary to go into the detail of those complaints.  She complained vigorously and she complained firstly to Mr McCartney and then to the personnel officer Mr Vyse and then to Mr McCartney’s line manager, Mr Peter Harrison.  That indeed was a joint complaint.  The Tribunal found, paragraph 11, that the contents of these formal and informal complaints were in sufficient detail to convey to all concerned that she was making a serious complaint about her line manager which justified investigation.

8.	The Tribunal found that the complaint was one which fell within the Respondent’s grievance procedure and amounted to a Stage 1 formal complaint.  The matter was resolved in fact by the Respondent arranging for Mr McCartney to be seconded elsewhere and he was away for a substantial period of time.  The Respondent did not investigate the Applicant’s complaint and the main reason for that non-investigation was the impending secondment of Mr McCartney.  

9.	In April 2001 Mr McCartney was due to return to the College and the Applicant, learning about that, made it clear to the Respondent that she would resign if she were to be line-managed by him.  She reminded the Respondent of her complaint in 1999.  The Tribunal found this:

“In direct response to this the Respondent moved the Applicant to be line-managed by Ms Scott in the Curriculum and Staff development Unit.”

That was the situation until April 2002 when a new principal Ms Helen Parr made a decision following restructuring within the College, that the Applicant would have to go back to be line-managed by Mr McCartney.  The Appellant objected to that and I will refer to the correspondence in a moment. 

10.	The upshot of her objections was that the Respondent insisted that she should return to be line-managed by Mr McCartney and in response to that decision she resigned with effect from 5 July 2002.  As I have indicated the principal ground of appeal as that the Employment Tribunal failed to consider the facts relating to 2002 as a separate and free standing fundamental breach by the employer of the implied term of trust and confidence implied into this contract of employment as indeed into all contracts of employment.  The Appellant argues that the Employment Tribunal effectively ignored or shut out of its mind this argument.

11.	In support of that submission Mr Sethi took us to a number of documents that were before the Employment Tribunal.  First he referred to the statements of case of both parties.  For the purpose of this judgment I simply give the references and do not read out the relevant paragraphs.  The Originating Application, paragraphs 12 and 13.3 and the Respondent’s Notice of Appearance, paragraphs 5, 8-13.  Second, he referred to the witness evidence.  He referred us to the Appellant’s witness statement, paragraphs 41-42.  Third he referred us to the notes of the oral evidence at pages 74-80 of the bundle.  Fourth he referred us to the documentary evidence: the Appellant’s letter of 17 June 2002, pages 33 and 34 of the bundle not referred to in the decision; the Appellant’s letter to the Respondent of 5 July 2002 pages 35-37 of the bundle which is referred to in paragraph 19 of the Tribunal’s decision and finally the resignation letter of 16 July 2002 page 38 of the bundle.

12.	In a constructive dismissal case it is our view that it is incumbent upon an Employment Tribunal to look very closely at the language used by an employee when he or she writes the resignation letter and to illustrate that point I propose to read 2 paragraphs of the letter in this case.  Paragraph 2 of the letter addressed to Mr Vyse (still the Personnel Manager in 2002) says this:

“I can see little point in reiterating the detailed matters raised in my letter to you of 5 July which have not been addressed.  I have made clear to the College that, for the reasons detailed, it would be virtually impossible to return to the line management of Noel McCartney.  I do not consider that the offer of (unspecified) ‘support’ to be provided would make the situation tolerable.

I consider that the College’s refusal to deal with my legitimate complaints regarding Noel McCartney’s line management of me and its insistence that I return to the Business Development Unit amounts to conduct designed to destroy the relationship that should exist between the an employer and employee.  This constitutes a fundamental breach of my contract of employment.”

I interpolate that the return to the Business Development Unit would mean that the Appellant would be subject to the line management of Mr McCartney. 

13.	Finally, Mr Sethi referred us to the written representations made by the Appellant’s representative at the Tribunal, pages 60-66 of the bundle and in particular paragraphs 12.3, 12.4, 16 and 25.  We are told by Mr Sethi and accept that this skeleton argument was produced for the Tribunal on the first day of the hearing.  We in particular note paragraph 25 of those written submissions which say this:

“In the present case the Applicant has been subjected to a course of conduct involving breaches of the implied term.  If the Tribunal does not accept that the imminent requirement by the Respondent that the Applicant be subject to Mr McCartney’s line management was in itself a repudiatory breach, it is the Applicant’s case that when considered in its totality, the course of conduct flowing from the events of late 1998 to the date of her resignation amounted to a repudiatory breach entitling the Applicant to resign and claim that she had been constructively dismissed.”

14.	In our judgment the submission that the resignation letter of 16 July 2002 was triggered by the decision of the employer to return the Appellant to the line management of Mr McCartney with effect from 1 August 2002 after a 3 year gap was not considered by the Tribunal despite the fact that it was clearly in front of them from the documents that we have referred to.  Indeed that view of the Appellant’s case is fortified by what would be common sense approach to the facts of this case.  The case was clearly one which could be presented in the alternative and in our judgment it was presented in the alternative.  The Employment Tribunal failed to consider a primary or substantial contention by the Appellant and therefore fell into error and made an error of law which justifies this Appellate Tribunal reversing its decision and allowing the appeal.  

15.	That leaves the question of remedy.  We obviously have discussed that amongst ourselves.  Let me put forward our provisional view and then invite submissions upon it.  Our provisional view is that this matter should be remitted as a whole to a fresh Employment Tribunal.  We do not think that it would be right to remit this point to a Tribunal which had already reached a decision against the Appellant.  We do not make any comment about the merits of the case.  We are simply allowing the appeal for an error of law on the part of the Tribunal.  
 
16.	It does not follow that because we have allowed the appeal that we have expressed any view about the merits of the Appellant’s case that there was a fundamental breach of contract in July 2002.  That is a matter for the fresh Tribunal having heard all of the evidence and the point I would make is that although a second Tribunal is not bound by the findings made by the first Tribunal I have no doubt that the Appellant’s legal representatives want to take those into account in deciding how to present her case to a fresh Tribunal which may shorten the length of any second hearing.  

(Counsel make submissions)

17.	We are grateful to you both but our provisional view has now become our absolute view and we propose this case to be heard by a fresh Employment Tribunal.