Appeal No. UKEAT/0115/04/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 September 2004
Judgment delivered on 19 November 2004

Before
HER HONOUR JUDGE WAKEFIELD
MR P M SMITH
MR S YEBOAH

MR LEE DICKENS	APPELLANT

HM PRISON SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ROBERT SMITH
(Of Counsel)
Instructed by:
Messrs Arthur Jackson & Co
Solicitors
4 Ash Mount
Doncaster Gate
Rotherham
S65 1DQ	
For the Respondent	MR CHARLES BOURNE
(Of Counsel)
Instructed by:
The Treasury Solicitor
Queen Anne’s Chambers
28 Broadway
London
SW1H 9JS	

SUMMARY

Constructive dismissal – position where employee returns to work after repudiatory breach and thereafter has further, but less serious, complaints of employer’s conduct.

HER HONOUR JUDGE WAKEFIELD

1.	This is an appeal by Mr Lee Dickens against a decision of an Employment Tribunal sitting at London South by which his complaint that he had been constructively unfairly dismissed was found not to have been substantiated.

2.	The background facts, very fully set out in the Extended Reasons for the decision which were sent to the parties on 3 December 2003, can be more briefly summarised for the purposes of this appeal.  The Appellant had been employed by HM Prison Service since July 1991 as a physical education officer, latterly at Feltham Young Offender Institution.  On 10 July 2000, whilst he and another Prison Officer were escorting a prisoner back to his cell, an incident occurred which may have constituted an assault on the prisoner by one of those escorts.  On 8 September 2000 the Appellant was suspended from duty pending an inquiry into that incident.  A disciplinary hearing followed which commenced on 2 August 2001.  The charge against the Appellant was eventually dismissed and his suspension was lifted with effect from 23 October 2001.  He returned to work on 5 November 2001.

3.	The Appellant having been so long absent from work, new systems and procedures were in place at the Prison.  There was also an on-going investigation into the conduct of the other Prison Officer involved in the original incident in July 2000.  The Appellant was unhappy about the attitude towards him of some fellow officers and as to the work he was assigned to do.  On 1 January 2002 (by which time he had actually worked for only thirteen days since his return to work) he wrote two letters to the Respondent setting out in one his concerns as to the conduct of the original enquiry into his part in the July 2000 incident and in the other his complaints as to events since returning to work.  He followed these letters with further complaints in February and March.  There were delays in the Respondent providing any substantive replies to these letters.  The Appellant then submitted a formal grievance on 1 May 2002.  On 10 May 2002, before the grievance procedure had commenced, he resigned citing “the events of the past 20 months” which he said demonstrated a lack of trust in him and left him in a position where he could no longer trust the people he worked with and for.
 
4.	The principal issue before the Employment Tribunal was therefore whether at the time the Appellant resigned, the circumstances were such as to entitle him so to do and to amount to a dismissal.

5.	The Employment Tribunal found (in the Extended Reasons as supplemented by a letter from the Chairman dated 5 May 2004):

(i)	That the circumstances and the duration of the suspension were such as to amount to a repudiatory breach by the Respondent; 

(ii)	That by returning to work as he did at the end of the suspension the Appellant had waived that breach;

(iii)	That none of the events thereafter was of sufficient seriousness to revive the repudiatory breach or, by way of accumulation, to be a continuing or new such breach.

6.	The grounds of appeal raise essentially three issues:

(i)	Whether the Employment Tribunal correctly addressed the question whether by returning to work the Appellant had waived the breach;

(ii)	Whether the Employment Tribunal failed to consider the relevance to this issue of the Appellant’s letters to the Respondent following the return to work;

(iii)	Whether, if there was a waiver by the Appellant’s returning to work, that was a conditional waiver, the condition being that the Respondent would act towards the Appellant in a proper manner thereafter and fully address his complaints and concerns.  The Appellant contends that the Respondent had failed so to do.

7.	Having in the Extended Reasons set out the facts, the issues and the submissions of the parties, the Employment Tribunal then stated its view that the failure of the Respondent expeditiously to conclude the investigation regarding the initial incident in the prison, the Appellant having been suspended throughout, was “a clear destruction of trust and confidence”.  In paragraph 50 of the Extended Reasons they said:

50.  If the law were that an employee, having experienced a destruction of trust and confidence, might return to work, give it a try to see if a working relationship could be re-established, and resign if it did not work out, claiming the original destruction as the cause of resignation, the Applicant in this case would succeed. That is not the law. The Tribunal accepts that there can be a conditional waiver of a repudiatory breach of contract which breach may be revived as an element of cumulative breach if there continue to be acts tending to destroy trust and confidence. We found the decision of the EAT in the unreported case of Strong-v- Hamill very helpful in explaining the effects of a process of accumulation of conduct. In our view, however, it is established that a destruction of trust and confidence may only be preserved if there is a continuing accumulation of confidence destroying actions after an event which appears to have been conditionally waived. We note that the decision in Strong -v-Hamill states that the reviving actions must themselves be significant. Apart from this, we do not attach any particular magic to the concept of a "last straw", save that it fixes a time point within a reasonable distance of which the employer must act on the cumulative breach. It is that continuing accumulation which we find missing in the present case. By that statement, we do not intend to refer merely to the absence of events significant enough to revive a conditional waiver but rather to the absence of events which, even cumulatively, themselves amount to a repudiatory breach. 

Then in paragraphs 64 and 65 the Tribunal concluded:
64.  Taking an overall view of the evidence there is no doubt that the Applicant had a bad time following his return to work and that this would not have occurred but for the fact that he had been subjected to suspension in Phase I. The incidents claimed to perpetuate the accumulation of destruction of trust and confidence occasioned by Phase I, however, are, in our view, mostly explicable on grounds which would not contribute to destruction of trust and confidence, or are equivocal, or on the basis of reasonable probability do not form a ground for any complaint at all. There is no doubt that the Applicant felt excluded, and he almost certainly was excluded, by at least some of his colleagues. In the circumstances he was very likely to see many matters as deliberate acts of victimisation. We have identified a few of the incidents raised as possible causes of genuine complaint. We have, however, indicated that we are satisfied, even in these cases that there were either reasonable explanations or that management was responding reasonably. Overall, our view is that management appears to have dealt with a very difficult situation in a manner which seems to have given rise to surprisingly few actual incidents which could be supposed to be victimisation. Only one incident has left us with a feeling of genuine distaste. Mr Bourne is wrong to say that this incident has not formed the basis of complaint to this Tribunal. The incident is the assignment to the Applicant of responsibility for the "swimming pool." We acknowledge that it is possible to explain that in a completely different light as a genuine attempt by management to find some area of responsibility to give to the Applicant. Our impression is, as we have said, otherwise. When the incident recurs again in April 2002 the Applicant is given another area of reasonable responsibility .Our view is that even if we are right and that the original assignment was a "sick joke" it is not sufficient to revive the previous destruction of trust and confidence and, indeed, itself could be regarded as waived, subject only to later revival. Our view is that the continued assignment of the area in April 2002 is too equivocal to constitute such a revival. 
65. We believe that in the end the Applicant despaired of getting back into the role and team. The disciplinary hearing against Mr Platts had still to be conducted so that the basic cause of the Applicant's problems had not only not gone away but was likely to be exacerbated. Our conclusion is that none of the actions following the Applicant's return to work, save perhaps the assignment of responsibility for the "swimming pool", was capable of reviving the original destruction of trust and confidence and that assignment on its own would not have been a sufficient revival. If that assignment had been capable of being part of cumulative breach of trust and confidence that accumulation was not perpetuated beyond October 2001. There was nothing in the next six months which was of sufficient significance to come near to amounting to action in itself constituting cumulative destruction of trust and confidence, or of constituting significant detriment capable of reviving earlier destruction of trust and confidence. Our decision, therefore, is that the Applicant did not resign as a result of a destruction of trust and confidence constituting a fundamental breach of his contract of employment.”

8.	The difficulty we find with these conclusions is firstly the apparent lack of recognition by the Employment Tribunal that it is possible in certain circumstances for an employee to return to work following a fundamental breach without necessarily having affirmed the contract so as to be unable thereafter to rely on that breach and secondly the apparent contradiction between what the Employment Tribunal said in its original paragraph 56 of the Extended Reasons and what they later said in a letter to the Employment Appeal Tribunal dated 5 May 2004.

9.	To deal first with the issue of affirmation (or, as the Employment Tribunal referred to it from the other perspective, waiver) a return to work following a repudiatory breach by the employer is not necessarily fatal to a subsequent reliance on that breach.  In Lewis v Motorworld Garages Ltd [1986] ICR 157 Glidewell LJ said (at page 170 A-C):

“If the employer is in breach of an express term of a contract of employment, of such seriousness that the employee would be justified in leaving and claiming constructive dismissal, but the employee does not leave and accepts the altered terms of employment; and if subsequently a series of actions by the employer might constitute together a breach of the implied obligation of trust and confidence; is the employee then entitled to treat the original action by the employer which was a breach of the express term of the contract as a part – the start – of a series of actions which, taken together with the employer’s other actions, might cumulatively amount to a breach of the implied terms?  In my judgment the answer to this question is clearly “Yes””

10.	Clearly it will depend upon all the circumstances whether an employee is found to have unconditionally affirmed the contract notwithstanding breach (or waived the breach, to use the terms of this Employment Tribunal) or whether there has been no such affirmation but a return preserving, at least for a reasonable period, outstanding issues and rights.  What the Employment Tribunal said in the present case in the first sentence of paragraph 50 of the Extended Reasons already quoted may therefore have been the expression of too absolute a test.

11.	In paragraph 56 of the Extended Reasons, the Employment Tribunal said:

“56.  The destruction of trust and confidence which in our view occurred as a result of Phase 1 is so grave that it easily satisfies the test of a conditional waiver capable of revival within the contemplation of the EAT in Strong-v-Hamill.  By this we mean that even after the Applicant had returned to work and been at work for some months without specifically raising any complaint related to his suspension such a complaint could be raised as part of an accumulation leading to destruction of trust and confidence if there were further sufficient destructive events to trigger that revival.”

12.	Following a Preliminary Hearing in this Employment Appeal Tribunal (a differently constituted panel from the present) the Employment Tribunal was asked:

“Whether it made findings on the issue whether there was waiver (as opposed to revival) by the Appellant of the repudiatory breach found by it in paragraph 55 of its Decision and if so in what manner, giving its reasons in particular by reference to paragraph 27(iv) of the Decision and the contents of documents 55-58 and 63 of the Appeal bundle…”

13.	In response, the Employment Tribunal wrote on 5 May 2002 as follows:

“The Chairman has not considered it necessary to reconvene the Tribunal to reply to the order of the Employment Tribunal dated 5 April 2004 because he recollects clearly the view of the Tribunal on the issue raised by that order. In paragraph 56 of the decision the Tribunal intended to say that in its view there had been a destruction of trust and confidence by the actions of the Respondent in what the decision called Phase 1 and that that situation would have led on to a situation where the Applicant, when he resigned, would have been entitled to claim to have responded to a repudiatory breach if an accumulation of subsequent actions could be regarded as a revival of that repudiatory breach. 
The Tribunal intended to make it clear, however, that there would have to be such a revival since, in its view, the Applicant's return to work at the end of his suspension constituted waiver of the previous breach.  The Tribunal made the assumption that the Applicant could not be said to have lost trust and confidence in the Respondent if he had returned to work following suspension. The Tribunal would have felt that paragraph 31 of the decision indicates acceptance of the view that the Applicant had not sought to contend that when he resigned he was responding to a breach of contract sustained by his complaints in January and March 2002. Mr Bourne had submitted that the Applicant had not only returned but had continued in employment for two months before making his first written complaint. The Chairman intended that paragraph 50 of the decision should make it clear that the Tribunal did consider that the Applicant had waived the previous breach. That paragraph commences with an outline of a view of the Applicant's conduct and states that, in the view of the Tribunal, it is the law that a return in the conditions applicable to that conduct would amount to a waiver. That paragraph goes on to deal with the alternative of a conditional waiver which might be revival. 
The Chairman assumes attention is directed to paragraph 25 (iv) of the decision as a reference to an incident subsequent to the Applicant's return, and of which he later complains. The Tribunal, however, took the view that neither this incident, nor any other subsequent to the Applicant's return amounted to an aspect of continuing accumulation, let alone to a revival of a "conditionally waived" breach, and this is finally stated in paragraph 65 of the decision. 
The Chairman is directed to pages 55 and 58 of what he assumes to be the hearing bundle, since he has not been supplied with papers of any different appeal bundle. Those pages refer to a series of complaints which the Tribunal regarded as in the nature of grievances. The Tribunal was under the impression, from the submissions made by Mr Smith, that he was not seeking to claim that those complaints preserved a breach which would otherwise have been waived. Had he made such a submission the Chairman believes the Tribunal would have specifically rejected it on the ground that the waiver had already occurred before the first of the complaints in January 2002.

The answer to the question put by the Employment Appeal Tribunal, therefore, is that the Tribunal did consider both "waiver" and "conditional waiver" (which might be revived”) and that it concluded that the Applicant had waived the destruction of trust and confidence in Phase 1 and that nothing had occurred thereafter which amounted either to a continuing accumulation or a revival.”

14.	We find that this answer, particularly having regard to the terms of paragraph 56 of the Extended Reasons, somewhat confusing and potentially contradictory. 

15.	We are also concerned that given the apparent confusion by this Employment Tribunal between what they categorise as either waiver or conditional waiver of the pre-October 2001 fundamental breach, they may not have fully or properly considered the relevance of the Appellant’s January letters nor the effects of the reassignment in April 2002 of the Appellant to the “swimming pool” duties: the original assignment of which to the Appellant the Tribunal had described as a “sick joke” and the reassignment to him as something that he reasonably regarded as an “affront”.  Notwithstanding this, the Employment Tribunal referred to it in paragraph 64 of the Extended Reasons in the terms already quoted above.

16.	For these reasons we are not satisfied that this Tribunal correctly approached the issues that they had to determine.  We therefore allow the appeal, set aside the decision of the Employment Tribunal and remit the case to be reheard before a differently constituted Employment Tribunal.