Appeal No. UKEATS/0025/09/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 17 November 2009

Before
THE HONOURABLE LADY SMITH
MRS A HIBBERD
MR J KEENAN MCIPD

MR DAVID HUNTER	APPELLANT

TIMBER COMPONENTS (UK) LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR A HARDMAN
(Advocate)
Instructed by:
Russel & Aitken
King’s Court
High Street
Falkirk 
FK1 1PQ		
For the Respondent	MR J CUNNINGHAM
(Representative)
Croner Consulting
Croner House
Wheatfield Way
Hinckley
Leicestershire
LE10  1YG		

SUMMARY
UNFAIR DISMISSAL:  Constructive dismissal
DISABILITY DISCRIMINATION:  Reasonable adjustments

The Tribunal’s finding that claimant not unfairly dismissed upheld where employee resigned on account of conduct of a director of the respondents towards other employees.  Appeal against dismissal of disability discrimination claim also dismissed where not established that the respondent knew or ought to have known of the claimant’s disability.

THE HONOURABLE LADY SMITH
Introduction
1.	This is an appeal from the judgment of an Employment Tribunal sitting in Glasgow, Employment Judge Miss F Walker, registered on 18 March 2009.  

2.	In terms of that judgment the Tribunal dismissed the claim for unfair dismissal and disability discrimination.  We will continue to refer to the parties as claimant and respondent.  

3.	The claimant was represented by Mr A Hardman, advocate, before the Tribunal and before us.  The respondents were represented by Mr J Cunningham, representative, before the Tribunal and before us.  

Background
4.	The claimant is a joiner and worked for the respondents, manufacturing stairs, between June 1987 and 31 January 2008, when he resigned.

5.	Put shortly, the claimant resigned because he was no longer prepared to witness the way that the owner’s son, Darren Cartwright, who became a director at some point prior to 2007, treated other staff.  The Tribunal found that he was “intimidating and arrogant in the way he spoke to staff” and that he bullied younger members of staff.  The Tribunal referred to an occasion, the date of which is not specified, when Darren reduced a “boy” to tears for having spilt paint.  

6.	So far as the claimant’s interactions with Darren Cartwright were concerned, the Tribunal found that the claimant disapproved of his style of management and took him to task about it.  They found that:
“The claimant did not consider himself to be a target of Darren’s intimidation and was not scared of him.”  (paragraph 2(i))

7.	In about February 2007, the claimant complained to Darren about the way he was running the factory and, in particular, about the way he was treating the staff.  He made similar complaints to Darren Cartwright’s father.  A new general manager was appointed in April 2007.  Although prior thereto the claimant had been reporting to Darren Cartwright, the position then changed and he was to report to the new general manager who was replaced by another employee in July 2007.  A new managing director was also appointed.

8.	At about the beginning of October, the claimant spoke to the managing director about Darren Cartwright, expressing concern about the way he spoke to him and to others;  he had an abrupt and arrogant manner.  The claimant also complained that he was not getting sufficient training on a new computer based system.  The claimant was off work suffering from ulcers at that stage.  When he returned, the Tribunal found that:

“…things were a bit better.”  (paragraph 2(y)).

On 7 November 2007, a verbal altercation occurred between Darren Cartwright and the claimant.  Darren was in a bad mood.  He was angry that designs were not showing up on a computer disk and swore.  He found that there was no grease on a particular machine and shouted at another employee in respect of that.  He sent him away and observed:

“What the fuck is that?  You know how much that costs”.

The claimant was present and said:

“What the fuck is wrong with you?  I am going to Citizen’s Advice.  You are a fucking arsehole.”

Darren replied:
“Just fuck off then.”

The claimant did not return to work.  

9.	So far as the claimant’s health was concerned, the Tribunal found that the claimant had a history of depression.  It dated back to 1999.  It was exacerbated by a friend’s suicide in 2004 at which time he was referred for behavioural psychology.  He was still seeing the behavioural psychologist, Mr Wilson, at the time of the Tribunal hearing.  

10.	After the claimant’s resignation, a report was obtained from Ian B Stephen, Chartered Clinical Psychologist, for the purposes of the Tribunal hearing.  That report found that the claimant was, as at that stage, suffering from a clinically severe level of depression and a high level of anxiety.  The report was dated 28 July 2008.  The report was before the Tribunal.  There were also before the Tribunal sick lines from the claimant’s GP dated 12 and 26 November 2007, 10 December 2007 and 8 January 2008 signing the claimant off on account of “nervous disability”.  

11.	Otherwise, on the Tribunal’s findings the respondents knew that the claimant was seeing Mr Wilson once every four to six weeks for counselling.  That was on the basis that the claimant had told Darren Cartwright he was suffering because of his hours of work and lack of family time.  Those were the limits to the respondents’ knowledge so far as the disability discrimination claim was concerned.  

The Tribunal’s Judgment
12.	The Tribunal found that the reason for the claimant’s resignation was the breakdown of his relationship with Darren Cartwright.  He found him impossible to work beside due to his aggressive style.  It was not, however, a matter of the claimant considering that Darren Cartwright’s general bad temper and swearing were directed at him.  At paragraph 33, the Tribunal explain:

“The Tribunal considered that the behaviour of Mr Cartwright, including the language used, could potentially have amounted to a repudiatory breach had it been targeted at the claimant.  However the claimant was frank that his main concern was how Mr Cartwright behaved to others.  The incidents given were the paint incident, the bonus incident and the incident on 7 November.  The only other specific incident mentioned was a concern that Mr Cartwright made a bed for his child on company time and that this held up production.  Other than that, the complaints were about general bad temper and swearing.  The claimant did not perceive this as being directed at him particularly and did not give details of any specific incidents where Mr Cartwright’s behaviour had been directed at him.  Had he done so, the Tribunal would probably have had little hesitation in finding that there had been a breach of the implied term of trust and confidence.  However on the evidence presented to it, and bearing in mind that the onus of proof is on the claimant to establish the breach, the Tribunal has been unable to find such a breach.”

The Tribunal accepted that the claimant had found it extremely difficult to work beside Darren Cartwright and disapproved of the way he spoke to others.  It also found that the claimant was, as a matter of fact, suffering from stress and depression which contributed to his inability to cope with Darren Cartwright’s behaviour.  At paragraph 34, the Tribunal continued:

“However the Tribunal does not find that it has been proved that the employer’s conduct, through the actions of Darren Cartwright, when viewed objectively was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and this particular employee.”

13.	So far as the disability discrimination claim was concerned, the Tribunal rejected it on the basis that although Darren Cartwright knew there was a problem from which the claimant was suffering in 2004 he believed that this had been resolved.  Nobody knew of the claimant’s “mental illness”.  The Tribunal found that there was insufficient information before the respondents to alert them to the fact that the claimant had a problem that required further investigation.  Accordingly, no obligation to make reasonable adjustments arose.  

Relevant Law
14.	As identified by the Tribunal, the issue was whether the respondents had, without reasonable and proper cause, conducted themselves in a manner which, viewed objectively, was calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee (Malik v Bank of Credit and Commerce International SA [1998] AC 20).  One of the issues addressed in Malik was that of whether to establish a breach of that implied term of trust and confidence it must be shown that the employer’s conduct was directed towards the employee founding on it.  At paragraph 14, Lord Nicholls of Birkenhead said:
“I do not accept the liquidator’s submission that the conduct of which complaint is made must be targeted in some way at the employee or a group of employees.  No doubt that will often be the position, perhaps usually so.  But there is no reason in principle why this must always be so.  The trust and confidence required in the employment relationship can be undermined by an employer, or indeed an employee, in many different ways.  I can see no justification for the law giving the employee a remedy if the unjustified trust destroying conduct occurs in some ways but refusing a remedy if it occurs in others.  The conduct must, of course, impinge on the relationship in the sense that, looked at objectively it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.  That requires one to look at all the circumstances.”

At paragraph 60, in response to the liquidator’s argument that the dishonest behaviour of the bank was directed at the defrauding of third parties and therefore could not amount to a breach of the implied obligation owed to the employees, he said:

“The conclusion is not warranted by the premise.  The implied obligation extends to any conduct by the employer likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.  It may well be, as the Court of Appeal observes, that the decided cases involve instances of conduct which might be described ‘as conduct involving rather more direct treatment of employees’:  1966. ICR 406, 412.  So be it.  But Morritt L.J. held that the obligation (p.441B-C):  
“….may be broken not only by an act directed at a particular employee but also by conduct which, when viewed objectively, is likely seriously to damage the relationship of employer and employee.
That is the correct approach.  The motives of the employer cannot be determinative, or even relevant, in judging the employees’ claims for damages for breach of the implied obligation.  If conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”

15.	Put shortly, it is, thus clear that whereas breaches of the implied term of trust and confidence will most commonly occur because of conduct by an employer directed at the claimant employee, if other conduct, not so directed, can when viewed objectively be shown to be calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee, the employer will be in breach.  So, an employer could breach the implied term of trust and confidence owed towards employee A by means of conduct directed at employee B.  Whether, viewed objectively, his conduct has that effect will be a matter of an assessment of the whole facts and circumstances of the individual case.  

16.	Turning to the claimant’s disability discrimination claim, as we understand it, it was a claim that the respondents had failed in their duty to make reasonable adjustments.  The reasonable adjustments sought are recorded by the Tribunal at paragraph 16 to have been:

“Adjustments should have been made either to Darren Cartwright’s style of management or to the claimant’s exposure to that style.”

No such duty could arise unless the claimant established that, at the relevant time, he was “disabled” within the meaning of the Disability Discrimination Act 1995;  the respondents conceded that the claimant was in fact disabled at the relevant time.  That, however, is not an end of the matter.  For the duty to make reasonable adjustments to arise, the provisions of s.4A must apply:

“4A

(1)  Where – 
(a)  a provision, criterion or practice applied by or on behalf of an employer, or 

(b)  any physical feature of premises occupied by the employer,
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.
…

(3)	Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –
(a)  in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment;  or
(b)  in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).”

We would refer to the interpretation of s.4A (3) provided by this Tribunal in the case of Secretary of State for the Department for Work and Pensions v Alam UKEAT/0242/09/LA at paragraphs 14-20, in particular at paragraph 17, where the questions that for the purposes of s.4A (3) require to be addressed are identified as being:
“1.	Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A (1)?  If the answer to that question is:  ‘No’ then there is a second question, namely,

2	Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A (1)?”

Discussion 
17.	We have no difficulty in agreeing with Mr Hardman that if the Tribunal had approached matters on the basis that they could not find in favour of the claimant unless Darren Cartwright’s conduct had been targeted at him they would have fallen into error.  However, having carefully considered the Tribunal’s judgment, we are satisfied that they did not so err.  They had regard to the relevant law.  They correctly indicated that their main task was whether the behaviour of Darren Cartwright, to the extent that they found it to be established, amounted to a repudiatory breach when viewed as a whole or whether the incident on 7 November was sufficient on its own to constitute such a breach.  They considered the nature and quality of Mr Cartwright’s conduct.  We are satisfied that, reading their judgment as a whole, they have entertained the possibility of it amounting to a repudiatory breach of the claimant’s contract of employment.  They were correct to do so.  They required to look at Darren Cartwright’s conduct and determine whether, viewed objectively, it was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the claimant and we are satisfied from their discussion and their expression of their conclusion at paragraph 34, that that is what they did.  Further, we consider that their conclusion was one which, on the facts as found by them, they were entitled to reach.  We bear in mind, in particular, that the Tribunal’s assessment was not that Mr Cartwright’s conduct damaged the claimant (unlike the claims of the employees in the case of Malik) but, as explained by the Tribunal in paragraph 33:

“…The claimant was frank that his main concern was how Mr Cartwright behaved to others.”

We should add that we have had regard to the Tribunal’s comments in the first half of paragraph 34 that they accepted that the claimant found working beside Darren Cartwright “extremely difficult” and that he “disapproved” of the way he spoke to others.  However, in so far as the claimant getting to the stage that he could not cope with Darren Cartwright’s behaviour anymore was concerned, the Tribunal found that that was contributed to by the fact that the claimant was suffering from stress and depression and there is no suggestion of any causal link between Darren Cartwright’s behaviour and the claimant suffering from those conditions.

18.	Turning to the claimant’s claim for disability discrimination, we reject Mr Hardman’s submission that the Tribunal’s finding at paragraph 37 that:

“Although Darren Cartwright knew there was a problem in 2004 he believed that this had been resolved.”

was perverse.  Mr Hardman submitted that that comment was contrary to the findings in fact and not based on any evidence heard by the Tribunal.  As to the former, he referred us to the findings in fact at paragraph 2(l):

“The claimant got time off to see Mr Wilson once every 4-6 weeks.  This was agreed with Darren who knew he was getting counselling.  The claimant told him he was suffering because of his hours of work and lack of family time.”

The Mr Wilson referred to is a behavioural psychologist.  No application was made to this Tribunal for a note of Darren Cartwright’s evidence.  However, in the course of submission Mr Hardman referred to the claimant having said in evidence that he told Darren Cartwright that he was seeing a behavioural psychotherapist for pressure at work, problems with sleeping, hours at work and lack of family time.  He referred to Darren Cartwright having given evidence to the effect that he was not aware of the claimant having medical treatment;  he knew the claimant saw somebody after a friend had committed suicide and it was not a “quick fix”.  Rather it took more than just a few months but he believed the claimant had got past that.  The reference to a friend’s suicide was, as found by the Tribunal that a friend of his had committed suicide in 2004 following which he had been referred to Mr Wilson.  That summary of the evidence given was not disputed on behalf of the respondents.

19.	We are not persuaded that the Tribunal’s conclusion was perverse.  Even assuming that the facts were as per Mr Hardman’s summary of the evidence, that would not have been inconsistent with a conclusion that Darren Cartwright knew there was a problem in 2004 but believed it had been resolved.  Further, neither the summary of evidence referred to nor the findings in fact at paragraph 2(l) are inconsistent with that conclusion.  The overwhelming problem for the claimant is that there was, on the face of it, no evidence on the basis of which it could be said that the respondents either knew or ought to have known that the claimant was suffering from depression at the relevant time.  That being so the conditions of section 4A of the Disability Discrimination Act 1995 could not be satisfied.  In those circumstances, the Tribunal cannot be faulted for reaching the view that the respondents could not be criticised for failing to address the issue of whether or not there were reasonable adjustments required prior to receipt of the claimant’s sick notes after he stopped working in November 2008.  There could be no question, on the evidence given, of a need to consider whether reasonable adjustments were required and to make any such adjustments, prior to that date.  Since the claimant did not return to work, no question of breach could arise.

Disposal
20.	In these circumstances we will pronounce an order dismissing the appeal.