Appeal No. UKEAT/0566/07/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
                                                                                                    On 14 February 2008

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR A HARRIS
MR D SMITH

MRS J M ATKINS	APPELLANT

WILTSHIRE PRIMARY CARE TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MURRAY SHANKS
(of Counsel)
Instructed by:
Messrs Lemon & Co Solicitors
34 Regent Circus
SWINDON
SN1 1PY	
For the Respondent	MISS ANNA GEORGE
(of Counsel)
Instructed by:
Messrs Beachcroft LLP Solicitors
10-22 Victoria Street
BRISTOL
Avon
BS99 7UD	

SUMMARY
Practice and Procedure:  Appellate jurisdiction/reasons/Burns-Barke

The Employment Tribunal rejected a claim for constructive dismissal, finding that there had been no breach of the duty of trust and confidence relied upon.  Grounds of appeal were advanced which the EAT concluded had not been advanced below and which the claimant should not be entitled to run now.  In any event they felt that the new way of advancing the case would have been bound to fail. 

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This is an appeal against a decision of the Employment Tribunal sitting in Bristol, in which it held that the Appellant (whom we will continue to call the Claimant, as she was below) had not been unfairly constructively dismissed by her employers.  Initially the appeal was rejected on paper by HH Judge Ansell on the grounds that it had no reasonable prospect of success, but on a renewed application pursuant to rule 3(10) Mr Justice Keith allowed the case to proceed.

2.	The background is as follows. The Claimant was employed by the Wiltshire Primary Care Trust as a state registered nurse from 22 November 1981 until her resignation on 19 August 2006. She alleged that she was resigning because of the way in which the Trust had dealt with disciplinary proceedings against her. 

3.	The Tribunal dealt with the background facts in considerable detail.  However, in view of the way in which the case is now put, we think that we can deal relatively briefly with the facts.   The detail is no longer material to a proper understanding of this appeal.

4.	 The Claimant was a committed and conscientious nurse who worked part time on night duty. An incident occurred on the night of 16/17 October 2004 in connection with a patient known as Mrs S. One of the Claimant’s colleagues, Nurse Treviss, reported that the Claimant had roughly handled Mrs S, which made Mrs S call out. The Ward Manager, Sister Scott, made enquiries of the patient and found that she had been very upset. She asked the patient what had happened and the patient said this:
“Jenny thumped me on my back and on my shoulder and pushed me over. I was asleep. She told me to stay there until I had had a cup of tea. It was five o’clock time and I said I could not get over any further. When she was pushing and thumping me I wasn’t very happy about it at the time. When Sandra came in she said I’m not going to have an argument with her. She’ll do it her way no matter what you say to her.”

5.	Sadly, from this relatively minor incident, this lengthy and expensive litigation has developed.  First, in October 2004 the Claimant was suspended on full pay pending an investigation.  That was carried out by Mrs Barker, the Deputy Director of Nursing. She noted certain contradictions in the statements she had obtained and set out her conclusions and recommendations.  She concluded from the evidence that there had been a breach of the manual handling policy causing harm to Mrs S. She identified a training need for the Claimant and supervision in manual handling and she recommended that this should be done. 

6.	In February 2005, a disciplinary hearing was held.   It exonerated the Claimant of a charge of deliberating hurting the patient, but the disciplinary panel found that she had nevertheless handled the patient otherwise than in accordance with the relevant guidelines, resulting in harm and inappropriate treatment. In addition, she had behaved in a manner not conducive to the NMC professional code of conduct, including failing to obtain the patient’s consent to turn her, and acting in an uncaring manner.

7.	One of the criticisms directed at this hearing was that the Claimant wished certain witnesses to attend. In fact, no witnesses from the Trust were made available. This decision was made because certain of the witnesses had apparently expressed concern that they would be intimidated by the Claimant if they gave evidence.

8.	The panel issued a first written warning, to last for 12 months, and recommended the return to work on the day shift, with an action plan to support improvements in the Claimant’s working practice. This would involve being provided with a mentor and training to update her skills.  A full review of progress would take place after six months.  The reason why the recommendation had been for a period of work on days was partly to remove the Claimant from the environment where she would be working with other nurses who had given evidence against her but also because, as the Tribunal found, the range of duties on night shift was narrower than that on day shift. Accordingly, the Tribunal concluded that this was a reasonable course of action.

9.	The Claimant decided to appeal.  The grounds of appeal were lodged in a letter dated 14 March 2005.  They were essentially that the Trust’s witnesses were not available for cross-examination and that there was no in-depth exploration of such witness statements as were available. 

10.	The appeal hearing took place on the 27 April 2005.  The Claimant was represented and was allowed to question the witnesses.  Moreover, the Claimant was given the opportunity of adjourning so that Mrs Barker could be called and cross-examined, but she chose to go on with the hearing.  She claimed that she had no real option but the Tribunal rejected that. 

11.	The appeal panel concluded that the statements were conflicting and not wholly reliable, but the panel noted that the Claimant herself had stated that she should have approached and spoken to the patient in a different manner, and that could have avoided distress and pain for the patient. 

12.	They concluded that the written warning should be removed.  However, they felt that she had only minimal learning and professional development training and they upheld the recommendation that she should be subject to mentoring over a six month period in an environment where she could be clinically supervised. That supervision could only be provided on day duty.  She would, however, not suffer financially since she could retain her night rate of pay.  She was told that she had a further right of appeal but did not exercise it.  In fact the period of six months was subsequently changed to six weeks, following a communication from management.

13.	When Sister Edwards contacted the Claimant to arrange a return to work the Claimant was extremely upset and, as the Tribunal put it, responded inappropriately to Sister Edwards. She called her an “evil, malicious, lying person”. Sister Edwards, understandably, felt threatened, intimidated and vulnerable at the nature of the conversation and she reported the incident to managers.  Shortly thereafter her pay was withheld for a period on the basis that she was refusing to return to work, but subsequently the Trust reinstated it and paid her full back pay.

14.	The Claimant sought legal advice and her solicitors wrote to the Trust. They stated that there were still areas of concern. First, the trust and confidence had been damaged as far as the Claimant was concerned, and it would be difficult for her to return to work. Second, she was only contractually bound to work night duty and there was no contractual basis to require her to work on days.  They also notified the Trust that she was planning to retire on the 19 May 2006.  

15.	In August 2005, the Claimant went on sick leave for work-related stress. In fact she never returned to work before her resignation.  On 22 September 2005, whilst still on sick leave, the Claimant wrote a letter to Mrs Shaftoe registering two grievances. One concerned the way in which the Respondents had dealt with the disciplinary case against her, and the second alleged a failure by the Trust to provide a satisfactory system whereby staff could express their concerns about management of the ward. This second grievance was subsequently withdrawn.

16.	A meeting was arranged for 31 October. The grievance was heard by Mrs Shaftoe and Mrs Clatworthy.  It was in fact, rejected, although there was some time taken in communicating the outcome to the Claimant, about which the Tribunal was to some extent critical. 

17.	On 9 December, prior to the grievance being resolved, the Claimant wrote to the Chief Executive, complaining about the delay in handling her grievances and for the first time complaining that it had been heard by Mrs Clatworthy and Mrs Shaftoe who had heard the original appeal. The Tribunal accepted that it was not best practice for them to hear the grievance but noted that no earlier complaint about the constitution of the grievance panel had been made. The grievance panel in fact accepted that there were some points where the Claimant’s criticisms were valid, and that training for investigating managers existed, but they rejected the substance of the grievance. They notified the Claimant that they hoped she would get back to work.

18.	 She was told she had a right of appeal, which she exercised, to the Chief Executive. He concluded that the best way forward would be for an independent review of the process undertaken by a director of HR, Mrs Ring.  That review focused on the initial disciplinary hearing, the appeal process and the grievance process issues. 

19.	Mrs Ring carried out her review largely by considering the paperwork but she did also have a lengthy meeting with the Claimant.  In her report she made some criticism of the delay in the process, but broadly her conclusion was that the disciplinary procedure was properly followed and the Claimant always knew what the case was against her.  One of the particular complaints had been the failure to call the witnesses at the first level, but it was pointed out that the Claimant was able to cross examine them on appeal. It was also stated that considerable efforts had been made to ensure a return to work.
20.	The sick pay was exhausted in August 2006, virtually two years after she had gone on sick leave. The Claimant resigned on the 19 August stating: 
“The reason for my resignation is the way I have been treated by [the Trust] over the past 21 months as I have set out in meetings and correspondence with the Trust.”

The Tribunal’s conclusions.
21.	Before considering the conclusions, it is pertinent to note how the Tribunal described the issues they had to determine (para 3): 
“The  claimant contends that there were serious flaws throughout the whole process including a period of time in July to mid August 2005 when her pay was suspended and that the conduct of the respondent amounted to a breach of the implied term of mutual trust and confidence which entitled her to resign and treat herself as dismissed.”

22.	The Tribunal then considered their conclusions in the light of this evidence. They recognised that in order to establish a constructive dismissal it was necessary for the Claimant to show that there had been a fundamental breach of contract and that she had terminated the contract in response to the breach. That is, putting it very succinctly, the effect of section 95(1)(c) of the Employment Rights Act 1996 as construed by the Court of Appeal in Western  Excavating ECC v Sharp [1978] ICR 221.

23.	 The Tribunal noted that the Trust had relied on the case of Abbey National v Mrs Fairbrother [2007] IRLR 320 (Lady Smith presiding) in which it was emphasised that not every act undermining trust and confidence will involve a breach of the duty of trust and confidence. The question, even where such conduct occurs, is whether the employer can show that he had reasonable and proper cause for that conduct. Here it is contended that they did have proper cause to act as they had, and in particular to require the period of mentoring. 

24.	The Tribunal further accepted the submission that it was for them to consider the process as a whole and to consider whether it fell within the band of reasonable responses. The Tribunal considered the various stages in the process. They noted that any defects in the original disciplinary hearing and in particular the non-presence of witnesses, was rectified at the appeal hearing.  There could be no complaint about the inability to question Mrs Barker at that hearing because the claimant had been given that opportunity and chosen to reject it. 

25.	The only outstanding issue following the appeal was whether the Trust were entitled to require the Claimant to keep up to date her knowledge and skills, and it was reasonable for them to require that she should.  There was therefore good and proper cause for them to make the recommendations. As to the recommendation to work days, the Tribunal concluded that this was plainly reasonable. It had been reduced from a period of six months to six weeks, and moreover, the Claimant’s nightshift pay was being protected. 

26.	The Tribunal felt that the disciplinary and grievance procedure had been fairly dealt with and they also concluded that although her pay had been suspended, all those issues had been resolved by mid-August 2005 when pay had been reinstated and back pay made.

27.	The Tribunal identified what they considered to be some flaws in the process, but they were in doubt that overall, the employers had acted fairly and within the range of reasonable responses. Indeed “considerable management time and effort was expended in considering the Claimant’s concerns regarding the process”.

28.	The Tribunal concluded that even if the Respondent did not have good and proper cause, their behaviour was not calculated to destroy or seriously damage the employment relationship of trust and confidence. The Trust had made it clear that it wanted to retain the services of the Claimant and it had recommended a course of action for retraining and returning to work, but she had not co-operated.

29.	Finally, they held that even if there had been a fundamental breach, the Claimant had waived those breaches. She had not by 31 October 2005, which she told the Tribunal was when she had decided that she would not return to work, put the Trust on notice that their conduct had amounted to a fundamental breach of contract entitling her to resign.  She had told the Tribunal that the reason she had remained thereafter was financial.  By participating in the grievance procedure she had affirmed the contract in relation to everything that had gone on before that.  Moreover, she had been even remained in post for some two months after being told the outcome of the final review.  Her ill health did not prevent her from making the decision whether to resign or not.  

The grounds of appeal 
30.	Initially the Claimant developed many grounds in a somewhat unstructured way.  In essence the Claimant was seeking to reopen the Tribunal’s conclusion that there had been no repudiatory breach and that in any event the contract had been affirmed.   Subsequently Mr Shanks, an ELAAS representative, gave her advice and she does not now pursue these grounds.  We respectfully observe that this was very good advice.  

31.	We are all perfectly satisfied that the finding that there was no breach of the duty of trust and confidence was plainly open to the Tribunal. We appreciate that the Claimant considers that they reached false findings of fact in reaching that conclusion, and accepted evidence which they ought not to have done.  But those findings are binding on this Tribunal, and the appeal as originally drafted had no prospect of success at all.  
32.	Mr Shanks identified two particular grounds before Mr Justice Keith, and it is these two grounds which the judge allowed to go ahead. The first is that the Tribunal did not properly analyse whether, under the terms of her contract, the Claimant could be required to do day work. They concluded that it was reasonable for the employer to request her to do training on the day shift, but that is not the same as finding that they were contractually entitled to do it.    This breach would be quite independent of the duty not to undermine trust and confidence.  

33.	Second, the Tribunal had erred in law in saying that the Claimant had by her conduct affirmed the contract.  There is clear authority that the failure to act whilst sick does not count against an employee.  

Conclusions
34.	 It is plain from the decision of the Tribunal that they simply did not address these issues at all.  They make no finding as to whether there was a breach of contract by requiring her to work days.  Their finding that there was an affirmation of the contract is a finding that the Claimant had waived her right to rely upon the breach of the duty of trust and confidence. There has been no consideration at all of whether there was a waiver of any separate duty to require the claimant to work days.

35.	This raised a preliminary issue with the appeal which was indeed foreshadowed by Keith J when he concluded that the case should be allowed to go to a full appeal.  It is that it is far from clear that the case before the Employment Tribunal ever was that the requirement to work days was itself an independent breach of duty and that the Claimant had resigned in response.  Indeed, we think it can fairly be said that the Tribunal did not understand the case in that way.  They summarised the breach of contract on which the Claimant was relying solely in terms of the duty of trust and confidence: see para 3, reproduced above at para 21.  
36.	Ms George, counsel for the Respondent, who appeared below, said that the Tribunal had canvassed with the parties at the start of the hearing what the issues were, and these paragraphs reflect that discussion. 
 
37.	Mr Shanks properly points out that the issue of breach of contract was plainly before the Tribunal.  Moreover, it had always been one of the complaints that she was being required to work days when her contract was for nights only.  This was one of the matters which her solicitors had emphasised in correspondence with the Trust, and it was also mentioned by the Claimant in her claim form.
  
38.	We have looked at the claim form.  In a nine page analysis of her treatment by the Trust, it has to be said that the issue about breach of contract is barely mentioned.  The thrust of the claim is all about the various wrongdoings of different members of staff at various points in the procedure.  We would not have appreciated from that document that this concern about breach of contract was seen as an independent and significant breach in its own right.  It is advanced rather as part of the overall complaint relating to breach of the duty of trust and confidence. 

 39.	Mr Shanks makes the point that in the Tribunal below the Claimant was a litigant in person and could not be expected to understand the more complex legal points.  We understand and accept that.  Even so, we do not think that the Tribunal could fairly do more than seek to identify with the parties which points were in issue and then decide those points.  We do not think that it can possibly be said that the Tribunal here erred in law in failing of its own motion to infer that the Claimant might be able to argue the specific breach of contract issue as a distinct way of advancing her case in addition to the principal way which relied on the portmanteau term of trust and confidence.
  
40.	We recognise that exceptionally we can of course hear argument on legal issues which were not advanced below.  However, that power is rarely exercised, and almost never where further evidence would be required: see e.g Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 (CA). 

41.	Mr Shanks realistically accepts that there may well be relevant factual evidence which could bear on an analysis of the contractual terms.  We agree.  The mere statement that the Claimant shall work nights would suggest, if read literally, that there could never be a power to require her to work days even for training purposes.  We think that would be unlikely.  

42.	Mr Shanks has put a powerful and attractive case for saying that even if there is such an implied qualification, it would not extend to the imposition of a requirement to work days for at least six weeks.  It is, he says, highly unlikely that this could be permitted. He may be right, but as he accepts it requires a closer analysis of the contractual documents, and neither we nor the Tribunal have seen all of these.  

43.	As we have said, it may also require a consideration of oral evidence directed to discovering whether, and in what circumstances, night staff have in practice worked days.  Even if there were a breach, there would have to be consideration of whether in the circumstances it could be said to be fundamental.  Mr Shanks considers that self evident, but we are not so sure.  In any event, given these considerations, we have no doubt that this is not an exceptional case where it would be appropriate to allow the point to be run now. 

44.	Strictly, that means the appeal is bound to fail   However, we have to say that even if the Claimant were able to establish that the requirement to work days did constitute a repudiatory breach of contract, we do not see how she could conceivably be able successfully to allege that her resignation was in response to that breach.  If the breach relied on is the duty to work days, that factor must trigger the resignation for a constructive dismissal to arise.  But we see no evidence of that here.  

45.	The Claimant did not allege that she was resigning because she was being required to work days. Her resignation letter spelt out the real reason.  She resigned because of the general way she had been treated over the twenty one month period.  She was relying upon various acts of alleged ill treatment which had occurred even before any requirement to work days had been imposed. The fact that the general complaint encompassed the specific concern about working days does not begin to justify the inference that she was intending to treat this single breach as itself an independent justification for resignation.  Nor, as we have said, does her original claim form suggest that this may have been a distinct cause of her resignation.

46.	We would accept that if the constructive dismissal had resulted from the anticipatory breach by the employer insisting upon her working days, then as Ms George accepts, nothing in her conduct amounted to a waiver of that breach.  She had done nothing which was inconsistent with her assertion that she should not be required to work days. 

 Disposal. 
47.	The appeal fails. We do not think the point now relied upon, namely the objection to working days, was relied upon below as an independent ground for asserting constructive dismissal, and we do not think it would be right to permit it to be advanced now.  In any event, even if that requirement did constitute a repudiatory breach, we are satisfied that it was not for that reason that the claimant resigned.

48.	We are extremely grateful to Mr Shanks for representing the Claimant so ably.  She will, we appreciate, be disappointed at the outcome.  But she can rest assured that she could not have had a more eloquent or doughty representative.