Appeal No. EAT/0746/04/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 2005

Before
THE HONOURABLE MR JUSTICE WILKIE
MR B BENYON
MR A E R MANNERS

C & J CLARK INTERNATIONAL LTD	APPELLANT

MR I HATCROFT	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS REBECCA  TUCK
(Of Counsel)
Instructed by:
C & J Clark International Ltd
40 High Street
Somerset 
BA16 OAY	
For the Respondent	MR ALISTAIR HODGE
(Of Counsel)
Instructed by:
Messrs Howells
Solicitors
33 Love Street
Sheffield
S3 8NW	

SUMMARY

Was there a constructive dismissal where there was an initial breach of the implied term of T&C but by the time of resignation Appellant had taken steps to put matters right.

THE HONOURABLE MR JUSTICE WILKIE

1.	This is an appeal by C & J Clark International Limited against a decision of the Employment Tribunal held at Leeds on 26 and 29 April 2004, that the Applicant, Mr Hatcroft was constructively and unfairly dismissed by them.  We have been greatly assisted in our deliberations by the submissions, both written and oral, of Ms Tuck and Mr Hodge.

2.	This is a rather unusual and, in some ways, an unfortunate case.  The chronology briefly is as follows.

3.	In September 2002 Mr Hatcroft commenced employment with the Appellant as Store Manager.  He signed a document on 10 August 2002 acknowledging that he had received certain documents.  It appears that one document, which perhaps had not by that date been published by the Appellant, but which is in fact dated August 2002, is the Harassment and Dignity at Work Policy, a document of some significance, as we shall explain.  In February 2003 Mr Hatcroft alleged that in the course of a meeting with his Area Manager, a Mr Crawford, he was regarded as “a joke”.  On 10 July 2003 Mr Crawford and a Regional Manager, a Mr Imbornone, visited his store.  Mr Hatcroft alleged that in the course of that meeting, Mr Crawford acted aggressively towards him and told him to “sit down”.

4.	Mr Hatcroft was not due to be at work the following day the 11th and on the 12th of July he left work at 11.00am, submitting a sickness certificate for stress.  Thereafter, he never resumed work until his resignation on 25 November.  However, as early as 2 August 2003, Mr Hatcroft wrote to the Appellants saying that he considered himself to have been summarily dismissed.  He concludes the letter by saying this:-

“Unfortunately, I now feel that my position has become untenable working under David Crawford, who has made it impossible for me to continue at Leeds and even continue to work for Clark’s.”

In the body of the letter he made reference to his earlier complaints about Mr Crawford.

5.	That gave rise to a letter from the Regional Sales Manager, Mr Imbornone, dated 14 August 2003, in which he indicated his surprise that Mr Hatcroft felt that the company had summarily dismissed him.  He indicated his intention to investigate carefully the comments contained in the letter of 2 August but that that would take a little time.  He then says this:-

“I am aware that you are currently on sick leave suffering from stress and it is clear from your letter that you have been unhappy in your job recently.  When you are well enough to return to work I will arrange to meet with you to discuss your concerns.  Please contact me when you have a return date.”

6.	This letter and its last statement, represented a policy of the Appellant that it did not pursue either disciplinary or grievance matters whilst a person is off sick.  However sensible that may be in the context of many individual cases, what is significant is that it does not appear anywhere as a written statement of policy and, in particular, it does not appear as part of the Harassment and Dignity at Work Policy.  On the contrary, that document defines bullying as:-

“Any form of offensive, intimidating, malicious or insulting behaviour.  Intentional intimidation or belittling of someone through the misuse of power or position, intended to undermine, humiliate and denigrate or injure the recipient.”

If the complaints made by Mr Hatcroft were true, then it seems to us that what he was accusing Mr Crawford of could perfectly well be described as bullying.

7.	As far as harassment or bullying was concerned, that statement of policy sets out under Part 4, Management Responsibilities the responsibility of managers to respond promptly to harassment complaints and, in particular, it states as follows:-

“Prompt action must be taken (within 5 working days) to deal with any allegation of harassment or bullying.  Failure to do so will be considered a failure to fulfil managerial responsibilities and could result in legal action against the Company and the Manager concerned.”

In contrast to what the written policy says, therefore, Mr Imbornone was saying to Mr Hatcroft that until he returned to work, his complaints would not be considered.  However, the Appellants did not leave Mr Hatcroft entirely uncommunicated with over the course of the subsequent months.  

8.	On 10 September the Employee Relations Advisor wrote to Mr Hatcroft reminding him that his sick certificate had run out on 4 September and inviting him to contact either David Crawford or Employee Relations to advise them on his progress and to discuss when he may be fit enough to return to work.

9.	On 8 October they again wrote to Mr Hatcroft saying:-

“We do have a real concern that you have not contacted the Employee Relations Helpline to advise us on your progress.”

They arranged a meeting in Nottingham, near where Mr Hatcroft lived, for 20 October with Kay Beach, of their Employee Relations department.  In addition to that, they also offered the help of the Occupational Health Advisor, Kleea Prout, and recommended that he might wish to get in touch with her.  In fact, Mr Hatcroft took up that suggestion and a week later.  On 15 October he had a long conversation with Occupational Health at the end of which he agreed to meet another Area Sales Manager.

10.	On 3 November there was a meeting between Mr Hatcroft and a Lisa Hunt, of the Appellant.  Lisa Hunt wrote a long email to her boss and to Mr Imbornone and Mr Crawford, recording what occurred in the course of that meeting.

11.	Amongst other things, there was a prospective return to work on 13 November on a three-day week.  It then contains the following passage:-

“He is keen to sort out the ‘grievance’ against David as he feels this is part of his stress related illness and was upset that this had not been addressed at all.  We agreed the ER would call him within his first three days at work to discuss what is happening with this going forward.”

Mr Hatcroft also said that he was not comfortable with David visiting the store whilst this issue was still pending and it was agreed that it would have to be discussed how best to handle this.

He is also recorded as saying:-

“He felt disappointed by the lack of contact from HQ, however he did bring along all four letters that have been sent which I explained he had not replied to and also that Lyn Benfield had contacted him and when they were cut off he did not bother to call her back.  One letter clearly states that the grievance will be addressed by Carlo once Ian returned to work which I pointed out more than once.”

12.	On 5 November, Kelly Day, the Employee Relations Team Leader, wrote to Mr Hatcroft, summarising the outcome of the meeting of the 3rd and she says this:-

“In response to some of the queries raised at the meeting may I respectfully suggest that we arrange for your Grievance to be heard by Carlo Imbornone on Friday the 14th of November.  (Venue of your choice).  May I also recommend that this date be your first day back at work in order that we can discuss your issues prior to you resuming your role.  This meeting will also enable you to discuss other options you may prefer to take.”

And then she indicates that he could bring a colleague or friend to the meeting and, in anticipation of having a productive meeting, she asked for him to prepare and forward by 12 November, a more specific outline of his grievances against Mr Crawford.

13.	On 7 November Mr Hatcroft spoke to the Appellants’ Human Resources Team.  It was confirmed that they would allow a person of Mr Hatcroft’s choice to hear the grievance as he did not want either Mr Imbornone or Mr Talbot, but he asked for Ms Prettyman.  By 7 November, it is apparent that the return to work which had been anticipated to take place on 13 or 14 November would have to be postponed for a further four weeks as, to Mr Hatcroft’s surprise, he had been signed off sick for a further four weeks.

14.	In those circumstances, the Human Resources Team suggested to Mr Hatcroft that:-

“though not normal practice, we will facilitate a grievance hearing for him on the day already arranged, despite being off sick.”

They gave Mr Hatcroft the weekend to think about what he wanted to do and that when he had considered the options, that is to say, either wait until he returned to work to sort the grievance or use the 13th November as an option, he was going to call either Kelly Day or Ms Prout from the Occupational Health.

15.	On 10 November, that is to say, after the weekend, Mr Hatcroft was in contact with the Appellants and stated that he had spent the weekend thinking about the intended meeting and had then become anxious.  This was the subject of a specific finding by the Tribunal in paragraph 19 of their decision.  Paragraph 20 of the decision then states as follows:-

“Thereafter, the applicant heard nothing from the respondent and decided that he had no alternative but to resign.  This he did by his letter of 25 November, part of which had already been referred to in the Tribunal’s decision.”

We quote from that letter as follows:-

“It is with deep regret that I feel forced to tender my resignation with Clarks.

This is a decision that I have come to after a long discussion with my Doctor, I am now scheduled to see a psychiatric councillor who will, I am sure help me get through the stress I feel Clarks has caused me.

I would like to say that I haven’t shared the company belief ‘A great place to work’ and I still feel grieved that my direct complaint was not dealt with in a fair or professional manner, especially in the past few months.

I realise that I have to give notice and will supply you a further sickness note on the 5th December when I return to my Doctor that will cover my absence to the 6th January.”

16.	The Tribunal, having made that finding of fact about the lack of any communication between 10 and 25 November, went on to consider the question of constructive dismissal.  There is no criticism with their formulation of the legal principles, but what is criticised, in particular, and in our judgment with a great deal of force, is the conclusion to which the Tribunal came, which they articulated in paragraph 29, where they say this:-

“As a result, the applicant was left to dwell on his sense of grievance for four months without a remedy.  During that time, his health deteriorated.  When the respondent acknowledged late in the day that it needed to address his grievance before he would be able to return to work, it failed to bring about a meeting with an independent investigator within a reasonable time.  The applicant went on to resign because of that failure and the respondent’s failure generally to deal with his grievance according to the terms of its own Policy.”

And at paragraph 30:-

“Judged objectively, that conduct on the respondent’s part had the effect of destroying mutual trust and confidence.  The respondent breached the implied term of mutual trust and confidence thereby.  That was the reason for the applicant’s resignation.  There was no significant delay in him making the decision.  Indeed, the delay caused the decision.”

17.	The main, and in our judgment the only, ground of appeal of substance, is that the Tribunal, in concluding in paragraph 20 that after 10 November the Applicant heard nothing from the Respondent and decided that he had no alternative but to resign in concluding that it failed to bring about a meeting with an independent investigator within a reasonable time, is simply wrong as a matter of fundamental fact and undisputed evidence.  It was the case, we are informed, and we accept that, before the Employment Tribunal, there was evidence in the form of an email, sent by Ms Prout, of Occupational Health, to Kelly Day, of Human Resources, about Ian Hatcroft, which reads as follows:-

“I have left a message on his voicemail – he is not answering his phone.”

This email was sent on 17 November.

18.	Mr Hatcroft was cross-examined about this and he acknowledged that he was aware that they had been trying to contact him and that a message had been left on the answerphone.  It is not clear that there was any evidence of what that message said.  We have been told that Ms Prout did not give evidence because it was the Appellant’s policy not to call to give evidence in Tribunals the persons employed by them as part of their Occupational Health Team because of problems with confidentiality, and there was no recollection on the part of Ms Tuck that Mr Hatcroft had actually said what the message had conveyed.

19.	Be that as it may, it is abundantly clear to us and should have been clear to the Tribunal that it was simply wrong in saying, in paragraph 20, that the Applicant heard nothing after 10 November and it was wrong, on that factual basis, for them to conclude that the Appellant failed to bring about a meeting with an independent investigator within a reasonable time.

20.	Standing that fundamental error, in our judgment, this decision of the Tribunal is fatally flawed and, the appeal must succeed.  However, the question arises what the consequence of that must be.  It is, in our judgment, of significance, that, in Mr Hatcroft’s letter of resignation, he does not, contrary to the impression given by the Employment Tribunal, focus particularly on the failure to arrange a meeting in the second half of November.  It is clear that the grounds for him resigning concerned his feeling that over several months there had been a failure to deal with his grievance in a professional manner.

21.	It is clear that the Tribunal had some regard to this because of what they said in paragraph 28 of their decision, where they castigated the Appellant for failing to recognise that what Mr Hatcroft was complaining of was something which involved the Harassment and Bullying Policy to which we have already referred, in which there is an obligation on Managers to deal with matters promptly.

22.	In our judgment, it very much remains a question for a Tribunal to consider whether the true reason for Mr Hatcroft’s resignation was a failure over the few days leading up to 25 November, or whether it was the overall failure over a period of months, which the efforts on the part of the Appellants to correct, really amounted to that which was too little too late, or, alternatively, whether the true view is that, having recognised late in the day that they really ought to do something about his grievance, the efforts that they made were made both in good faith and wereas much as could reasonably be expected of them to put right that which had apparently, previously, gone wrong.

23.	We, therefore, do not accept the contention of Ms Tuck that we can simply substitute a finding that he was not constructively dismissed having concluded that the Employment Tribunal, in finding that he was constructively dismissed, acted on the basis of a fundamental factual misconception.  

24.	In our judgment, this matter will have to go back to a differently constituted Tribunal in order for this question to be re-litigated.  It may or may not be the case that, at that Tribunal, the Appellants will decide, or will get the agreement of Mr Harcroft, to call Ms Prout to give evidence as to what the message was that she left with him, but that is a matter for the parties to determine, having taken advice in their own good time.  

24.	It, therefore, follows that the outcome of this appeal, is that the appeal is upheld  The order of this Tribunal is that the matter be remitted to a differently constituted Tribunal for this matter to be re-heard.