Appeal No. UKEAT/0513/10/ZT
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
12 July 2011
Judgment handed down on 22 July 2011
Before
THE
HONOURABLE MR JUSTICE SILBER
MS V BRANNEY
MR D SMITH
MRS
A FEREDAY APPELLANT
SOUTH
STAFFORDSHIRE NHS PRIMARY CARE
TRUST RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL – Constructive dismissal
The Claimant considered that she was treated in a way which was
in fundamental breach of her contract of employment. She invoked the grievance
procedure, which resulted in a decision adverse to her on 13 February 2009 but
she only resigned by a letter dated 24 March 2009. The Employment Tribunal
held that the Respondent had repudiated the contract of employment but that the
Claimant had affirmed the contract by her delay.
The Claimant appealed.
Held:-
The appeal was dismissed because the Employment Tribunal was
entitled to hold that the Claimant had affirmed the contract. W E Cox
Toner (International) Ltd v Crook [1981] IRLR 447 applied.
THE HONOURABLE MR JUSTICE SILBER
Introduction
1.
Mrs Ann Fereday (“the Claimant”) appeals against a decision of the
Employment Tribunal sitting in Birmingham and dated 1 July 2010 by which it
dismissed her claim for unfair dismissal against South Staffordshire NHS
Primary Care Trust (“the Respondent”) on the basis that the Claimant’s
resignation could not be construed as constructive dismissal. The ground of
appeal is that the Tribunal misdirected itself on the law of affirmation or
alternatively reached a perverse decision on affirmation. In the original
grounds of appeal it had been argued that the Employment Tribunal wrongfully
took into account matters from autumn 2008 as relevant to affirmation when
there was “a last straw” in February 2009.
2.
When this case was considered on the sift stage the Employment Tribunal
judge was asked to answer various questions relating to whether the “last
straw” case was made below. In the light of the responses from the
Employment Tribunal, the second ground has been abandoned.
The facts found by the Employment Tribunal
3.
The Claimant commenced her employment with the NHS on 1 July 1975 and by
2006 she was employed by South Western Staffordshire PCT as Head of Shared
Financial Services and this job entailed supporting three other NHS Trusts and
included GP Registration Services and Financial Services.
4.
On 1 October 2006 all four of these NHS Trust merged to form the Respondent
and the Claimant’s employment continued as Head of Financial Services. During
the merger process the Claimant’s position was originally put at risk of
redundancy along with other staff but this was later withdrawn.
5.
Before the merger, the Shared Financial Services function had been based
at Mellor House in Stafford but the landlord had given notice to vacate these
premises and had started disruptive building improvements. The Respondent
needed to find new premises as was well known among the staff. Between May and
August 2007 the Claimant was involved in efforts to find suitable alternative
premises and those efforts included investigating which members of staff came
from which locations in order to minimise the disruption to staff after the
move. A project group was formed which visited sites in Stafford and Rugeley
each of which was equally convenient to the Claimant who lived in Wolverhampton. The Claimant had no objection to the proposed move. The Claimant’s line
manager was Mr Chris Riley, the Head of Finance, who in turn reported to Mrs
Helen Simpson, the Financial Director. On 5 October 2007 Mrs Simpson informed
all relevant staff that she would present the necessary accommodation proposals
at the main Board Meeting of the Respondent on 31 October 2007. Mr Riley had
drafted a paper which was a confidential proposal but did not involve the Claimant
nor any other more junior members of his team.
6.
As Mrs Simpson was on leave Mr Riley addressed the Board Meeting and the
expenditure of the proposed move was agreed in principle but Mr Stuart Poyner
the Respondent’s Chief Executive decided to wait for Mrs Simpson’s return and
to discuss the matter with Mrs Julie Tanner, the Head of Workforce Learning and
Development, before making a decision. Mr Riley e-mailed the Claimant
immediately after the meeting and he spoke with her about the decision on the
following morning before telling other members of staff in her team.
7.
On Mrs Simpson’s return she met with Mr Poyner and on 19 November 2007
told Mr Riley that a decision had been made to relocate the Claimant’s
department to Rugeley. The aim was to move to different but nearby premises
with the GP Registration services moving to Edrich House when it became
available after three or four months and the financial service staff would be
moved to Anglesey House with the first tranche going there on 14 December
2007. This would meet the need to move from the existing premises as soon as
possible.
8.
On 20 November 2007 Mrs Simpson told the staff of the decision which was
confirmed in a letter from Mr Poyner to all relevant members of staff that day
but was already in the internal post. Mr Riley did not have the chance to
discuss it with the Claimant beforehand because he had only learned the final
decision the previous afternoon. Mr Riley continued to discuss the move with
the Claimant and did so on 21 and 23 November 2007 explaining that he
provisionally selected ten staff including the Claimant to move on 14 December
2007 but the Claimant expressed concern about that decision and one of her
suggested changes to the list was accommodated. The Claimant contends that Mr
Riley told her in a demeaning manner on at least eleven occasions “Helen
says it’s got to work” but Mr Riley denies demeaning or peremptory
languages and says he was pointing out that as senior managers, their job was
to implement the Board’s decision and to find solutions to any challenges which
it raised.
9.
Mrs Simpson then asked Mrs Gill Kilberry to assist in the relocation
process because Mr Riley was due to take a week’s leave and Mrs Simpson was
busy on other matters. The Claimant expressed concern with Mrs Kilberry about
the effect the transfer could have on the various functions and felt unable to
comment on what items needed to be transferred.
10.
The Claimant had been asked by Mr Riley to prepare a project plan which
she prepared in outline, and which included a list of possible issues and
solutions. When Mrs Riley returned from leave she produced a proposed
desk/seating plan in which the Claimant was placed with the other senior
managers who reported to Mr Riley. On 3 and 6 December 2007 Mr Riley met with
the Claimant and again on 13 December 2007 which was the day before the move to
discuss outstanding issues.
11.
On the same day the Claimant started a period of sickness absence from
which she never recovered and she said it was due mainly to work related stress
which she claimed was of a result of the matters to which we have referred.
Her case was that her role was undermined as a manager in a number of ways.
12.
Mr Riley and Mrs Simpson met with a member of the Claimant’s team, a Mrs
Hughes, at that lady’s request to discuss a personal and confidential matter
involving the Claimant. During the meeting Mrs Hughes offered to increase her
part-time hours if needed. The grievance of the Claimant was that she should
have been informed of the reason for and the contents of this meeting while Mr
Riley felt he should comply with the request of Mrs Hughes that the meeting
should remain confidential.
13.
Another claim was that in late November 2007 the Respondent had decided
to act on an issue concerning sensitive data on its computer after some
specific local concern at a time when the NHS nationally required all NHS staff
to be vigilant in protecting confidential information. In consequence the Respondent
reviewed its systems and decided to remove unnecessary access to certain
computer programmes including one called Business Objects which included
details of senior salaries. The Claimant’s access was removed without telling
her and when she queried this and why it was removed from her in isolation,
other members of her team then had their access also blocked. The Claimant
sent an email to Mr Riley who explained initially it was a governance issue but
did not respond to subsequent emails on the subject although he did discuss it
with the Claimant. In early November 2007 there were email complaints from two
creditors concerning late payment of invoices and the Claimant then felt she
was criticised for this and her subsequent report by way of explanation was
ignored. The Employment Tribunal found that Mrs Simpson ultimately received
the complaints and delegated them to Mr Riley to deal with and they did not
accept that there was any specific or untoward criticism of the Claimant.
14.
Another matter was that the Claimant always attended monthly management
review meetings but she was left off the circulation attendance list for
December 2007. When the Claimant made enquiries and later pursued her
grievance, she was given conflicting answers: first that fewer managers were to
be involved and when this proved incorrect because she was the only one
removed, and secondly, she was told it was an administrative error by a new
PA. The Claimant considered she had been deliberately excluded and without
consultation and in consequence her position had been undermined.
15.
Additionally the Claimant considered that her requests for recruitment
approval of temporary staff were ignored because when they were submitted to
Mrs Simpson, no response was received and the Employment Tribunal found that
there was no evidence as to the reason for it. The Employment Tribunal
concluded that in the light of the hectic office environment and imminent move
this did not amount to deliberate exclusion or undermining the Claimant of her
position.
16.
A further grievance was that on 27 November 2007 Mrs Simpson advised
those of the Claimant’s staff remaining at Stafford that Mr Riley would
continue to visit and could deal with any of their concerns but the Claimant
felt that she had been excluded by that comment. The Employment Tribunal found
it was part of Mr Riley’s normal role as Head of Service to be available and it
was not a deliberate attempt to exclude the Claimant from her managerial
position.
17.
While the Claimant was absent, Mr Riley tried to contact her by
telephone in early 2008 without success and he made enquires of Mr John Tourt,
the HR Manager, about referring the Claimant to the Occupational Health
Department (“OH”). Mr Riley himself went absent on long term sick leave from 6
March 2008 to 9 September 2008.
18.
The Claimant submitted a letter of complaint addressed to Mr Riley dated
24 March 2008 but which was not specifically expressed to be a formal grievance
but it was clearly a serious letter of complaint. It included allegations of
first lack of consultation over the proposed move, second that the Claimant’s
position was no longer required and that she was redundant, third she was
dropped from the management review meetings, fourth she was only provided late
with information about her role and position after the move, fifth she had been
ostracised by the management team and sixth the Respondent had “destroyed
the relationship of mutual trust and confidence that should exist”.
19.
The Claimant did not know that Mr Riley was absent and so no action was
taken until Mrs Simpson subsequently dealt with it by formally sending an
acknowledgement on 8 May 2008 but in the meantime she had written to the Claimant
on 9 April 2008 suggesting a meeting to discuss her health situation. The Claimant
said she wished to meet with OH first and they reported on 30 April 2008 to the
effect that Mrs Simpson was a causative factor in the Claimant’s stress and
anxiety and that she should not attend. Therefore Mrs Simpson asked Mrs Wendy
Kerr to attend instead. Mr Tourt then wrote to the Claimant on 23 May 2008
inviting her to a meeting on 29 May to discuss both the OH report and her
complaint. The Claimant had taken holiday without informing the Respondent and
did not respond in time. Mr Tourt wrote again on 5 June 2008 suggesting a
meeting on 11 June. This meeting took place as arranged and the Claimant
produced a written summary of matters which concerned her and which expanded on
her previous letter of 24 March 2008 to which we have previously referred.
20.
Mr Tourt agreed to respond by 27 June 2008 but because of the complexity
and range of allegations involving senior managers he was unable to do so until
1 August 2008.
21.
In his letter of 1 August 2008 which ran to four pages Mr Tourt
confirmed that the Claimant’s role was not redundant but he did not uphold her
complaints and suggested a meeting to discuss the Claimant’s ongoing ill health
and sickness absence.
22.
The Claimant was dissatisfied with the response and on 14 August 2008
she wrote and asked for her complaint to be dealt with as a formal appeal under
the respondent’s Grievance and Disputes Procedure. She also asked the Respondent
to exercise its discretion to continue to pay her full pay as sick pay, rather
than applying the contractual provisions of six months’ full pay followed by
six months’ half pay. Mr Tourt declined to increase the sick pay and felt the Claimant’s
request that the Respondent should do so by referring to the Grievance
Procedure’s comment to “maintaining the status quo” referred to working
and management arrangements during a grievance and did not require continued
full pay. The Claimant repeated her request for increased sick pay under the
contract in her letters dated 7 and 24 September 2008 and 25 October 2008.
23.
Mr Tourt explained his view on the sick pay in a letter to the Claimant
dated 27 August 2008 which also invited her to attend a formal grievance appeal
on 30 September 2008 in accordance with Stage 4 of the procedure. It was
explained that Stage 4 was one of five stages and it was to a panel of Mr
Poyner the Chief Executive and Mrs Tanner the Head of Workforce, Learning and
Development. The view of the Respondent was that it was appropriate to have
this seniority of members involved because the seniority of the Claimant and
the others involved.
24.
On 7 September 2008 the Claimant responded explaining a number of
complaints and arguing that her job was redundant. Mr Tourt wrote back on 22
September confirming the Respondent’s position on sick pay and explaining the
format for the forthcoming grievance appeal meeting on 30 September 2008. In
the letter he also requested relevant documents so that the documents of both
parties could be exchanged. On 24 September 2008 the Claimant replied saying
that she did not have sufficient time to prepare matters given that she had not
received the management case or a list of witnesses. She also objected to Mrs
Simpson being present and the hearing was adjourned to accommodate the request
of the Claimant for more time.
25.
Meanwhile the Claimant had received her August 2008 payslip following
the implementation of a new system and which for the first time she had a new
job title of Accounts Payable Manager. The Employment Tribunal were satisfied
this was a genuine administrative error and that other employees including the
Chief Executive had similar accidental changes to their job titles and indeed
there was no effective change implemented at that time.
26.
On 24 October 2008 Mr Tourt wrote again suggesting that the Stage 4
hearing should take place on 7 November 2008 which was agreed to by the Claimant
who was accompanied by a friend. At the hearing she read from a prepared
statement giving details of the treatment of which she complained. Mr Poyner
felt that some of these allegations were new and that he had to adjourn the
meeting to enable the management side to respond fully to those allegations.
27.
The rearranged meeting was due to take place on 28 November 2008 and the
Claimant agreed to submit her written statement of case in advance. Mr Tourt
asked the Claimant what her expectations were and she declined to say before
the result of her grievance but she felt that trust and confidence had been
eroded and it was unlikely that she could return to work saying that she was “looking
for a suitable compensation package”.
28.
During the adjourned hearing the Claimant alleged that Mrs Simpson had
acted aggressively and inappropriately but the Employment Tribunal accepted the
evidence of Mr Poyner that when the Claimant and Mrs Simpson questioned each
other they were on occasions “sharp” and “robust” but there was
no oppressive or offensive behaviour on the part of Mrs Simpson. Following the
hearing when the Claimant was challenging the detail of the minutes, her recall
was such that she was asked if she had taped the hearing. The Claimant took
this to be an offensive allegation as if she had done so covertly and
dishonestly but the Tribunal found that it was a genuine inquiry made by an
administrator to assist in the preparation of accurate minutes.
29.
After the hearing on 28 November 2008 Mr Poyner wrote to the Claimant on
2 December and confirmed the findings which he and Mrs Tanner had reached.
They had upheld some aspects of the complaint namely that the Claimant had not
sufficiently been involved in certain stages of the transfer process and that
she had been treated as a member of staff rather than a manager. In addition
the panel felt the issue of the Claimant’s sick leave and the process of
handling the grievance could have been dealt with in a more timely manner.
Apart from these matters the Claimant’s grievance (including her complaint that
she had been deliberately ostracised by the management and undermined) were not
upheld. The Claimant wished to appeal against those findings and Mrs Tanner
originally suggested that there was no right of appeal but had mistakenly read
the procedure as limiting appeals at this level to trade union-related cases.
30.
After more detailed consideration the Claimant was allowed to appeal
under Stage 5 which consisted of an appeal document dated 7 January 2009 and
which specified nine grounds. Mr Poyner and Mrs Tanner prepared a written
response to the appeal document.
31.
The appeal took place on 5 February 2009 before a panel of the Respondent’s
Chairman Mr A Fox MBE and two non-executive directors namely Mr David Ibbs and
Mr Andre Burns. Mr Fox sent a detailed letter dated 13 February to the Claimant
and it found that the substantive grievances had been given detailed
consideration and had been correctly addressed. Mr Fox also made
recommendations to address what were perceived to be administrative
shortcomings and found that “some of your perceptions in relation to
workplace bullying, ostracising and the perception of your job being redundant
could have been avoided by earlier intervention”.
32.
The Employment Tribunal found that Mr Poyner had also made enquiries
about possible alternative employment for the Claimant and on 24 February 2009
he offered the Claimant the role of Dental Commissioner which was a senior
position which matched her skills and abilities.
33.
When the Claimant did not reply, Mr Poyner sent a reminder letter to her
on 12 March 2009. Apparently there was some correspondence between the Claimant’s
solicitor and Mr Poyner at that time which the Employment Tribunal had not
seen. On 24 March 2009 the Claimant sent a letter of resignation with effect
from 29 March 2009 in which she confirmed that she had felt unable to return to
the Respondent because of the way in which she had been treated and that she
held the Respondent in fundamental breach of contract. By a letter dated 26
March 2009 Mr Poyner accepted the Claimant's resignation.
The findings of the Employment Tribunal on the claim for
constructive dismissal
34.
It is not in dispute on this appeal that the Employment Tribunal was
entitled to find that the Respondent was in fundamental breach of the implied
term of any contract of employment that the employer would not without
reasonable and proper cause conduct itself in a manner calculated or likely to
destroy or seriously damage the relationship of confidence and trust between
employer and employee.
35.
The Claimant had put forward a number of allegations but the only ones
which were upheld were that:-
(a) after November 2007
and during December 2007 the Claimant was removed from the agenda circulation
list for attendance at the normal monthly review meetings which she usually
attended but when the Claimant made enquiries she received two conflicting
answers and when she challenged the first she was given another. The
Employment Tribunal noted the Claimant felt that she was being removed from her
normal management involvement in suspicious circumstances and without
consultation; and that
(b) the Claimant’s access to the
Business Object programme was removed without prior notification and the Claimant
was provided with inaccurate explanation. Further it was also removed from the
Claimant’s staff without prior consultation and the Claimant was given
conflicting replies when she tried to investigate whether it had just applied
to her.
36.
The Employment Tribunal reminded itself in paragraph 35 that the basic
test for constructive dismissal is not merely that the employer must commit a
fundamental breach of contract but that “the employee must resign in
response to the breach; and the employee must accept the repudiation and resign
without undue delay or otherwise affirming the contract” [35]. The
Employment Tribunal therefore went on to consider whether the Claimant had
resigned in response to the breach and done so “without undue delay or
otherwise affirming the contract”.
37.
The conclusion of the Employment Tribunal on this critical issue was
that:-
“55. However, we find in any event that the claimant had
affirmed the contract. We apply the W E Cox Toner (International) Ltd v
Crook decision of the EAT in two respects. First, the events in question
occurred in late 2007. In her letter of 24 March 2008 the claimant alleged that
there had been a fundamental breach of contract arising from the events in late
2007. She had waited for over three months, although she was unwell, but did
not resign at that stage. Applying Cox she would seem entitled to
exhaust enquiries about her position, in her case by pursuing her grievance,
but must act promptly when that course of action is concluded. In Cox a
subsequent wait of four weeks before resigning was held to have affirmed the
contract. In the claimant’s case there was nearly six weeks between the
grievance decision on 13 February 2009 and her subsequent resignation.
Secondly, throughout this time she was actively arguing that the contractual
provisions relating to the discretionary extension of sick pay should be
applied in her favour, and also complained about a change in her job title in
August 2008. She thus affirmed the contract and was not entitled to rely on
these alleged breaches when she resigned.
56. In conclusion we find that the only fundamental breaches of
contract committed by the respondent were those listed as allegations A (ix),
(xi) and (xii), but we find in any event that the claimant affirmed her
contract of employment following the commission those breaches.”
The grounds of appeal
38.
As we have explained the only ground of appeal is that the Tribunal
misdirected itself on the law of affirmation as Mr Jim Tindal, counsel for the Appellant,
sensibly accepts that if he fails on that ground, he will be unable to succeed
on his other ground which is that the Employment Tribunal reached a perverse
decision on affirmation, which is a ground which he therefore did not pursue.
39.
He contends that the Employment Tribunal’s approach to affirmation was
entirely flawed as first it misapplied the decision in Crook as
it equated delay with affirmation when it should have been considering whether
there had been an unequivocal act of affirmation; second it failed to take into
account all the relevant circumstances when deciding whether the Claimant had
affirmed between the end of the Claimant’s grievance procedure on 13 February
and the sending of her letter of resignation on 24 March 2009; and third the
Employment Tribunal took into account irrelevant circumstances in wrongly
relying on the fact that the Claimant had requested an extension in sick pay
and complained about an apparent change in her job title in August 2008 when
her grievance was still pending.
40.
Miss Adrienne Morgan, counsel for the Respondent, contends that the
Employment Tribunal were entitled to reach the decision which they did for the
reasons which were given by them.
41.
Before dealing with these issues it is appropriate to mention that there
are very many reported cases on the issue of whether an employee has been held
to have affirmed a contract so as to be precluded from claiming that he or she
has been constructively dismissed. Both counsel in the case before us sensibly
accepted that they were fact-sensitive decisions and that they do not assist in
determining this appeal save where they establish a principle. It was for that
reason that they did not take us through the very many cases which were
referred to in their written skeleton arguments.
42.
The first ground of appeal is that the Employment Tribunal misapplied
the decision in Crook as it equated delay with affirmation when
it should have been considering whether there had been an unequivocal act of
affirmation, as it was only such an act, which could preclude the Claimant from
succeeding in her claim for constructive dismissal. Mr Tindal complains that
the Employment Tribunal stated in paragraph 35 that in the case of the employer
committing a fundamental breach of contract, “the employee must resign in
response to the breach; and the employee must accept the repudiation and resign
without undue delay or otherwise affirming the contract”. His complaint is
that in this paragraph and in paragraph 55 there is no reference to the
requirement that there should be an unequivocal act of affirmation, and that
the Employment Tribunal consequently saw “undue delay” as one way of
affirming the contract.
43.
We are unable to accept this criticism because affirmation can arise in
many different ways as was explained by Browne-Wilkinson J (as he then was) in
the Crook case, in which he referred to affirmation as being the
test and prolonged delay can be evidence of affirmation when he stated in
respect of an innocent party whose contract has been repudiated, at page 446,
that he:-
“13… can choose one of two courses: he can affirm the contract
and insist on its further performance or he can accept the repudiation, in
which case the contract is an end. The innocent party must at some stage elect
between these two possible courses: if he affirms the contract once his right
to accept the repudiation is at an end. But he is not bound to elect within a
reasonable or any other time. Mere delay by itself (unaccompanied by any
express or implied affirmation of contract) does not constitute affirmation of
the contract; but if it is prolonged it may be evidence of an implied
affirmation (Allen v Rubles (1969)1 WLR 1193). Affirmation of the
contract can be implied. Thus, if the innocent party calls on the guilty party
for further performance of the contract, he will normally be taken to have
affirmed the contract since his conduct is only consistent with the continued
existence of the contractual obligation. Moreover, if the innocent party
himself does acts which are only consistent with the continued existence of the
contract, such acts will normally show affirmation of the contract.”
44.
This approach in our view shows clearly that although affirmation is
needed, it can be implied by prolonged delay and/or if the innocent party calls
on the guilty party for further performance of the contract. That is precisely
what happened here. The Employment Tribunal was quite entitled to take the
prolonged delay of nearly six weeks between the grievance decision on 13
February 2009 and the Claimant’s resignation sent on 24 March 2009 in the light
of the earlier history as an implied affirmation, bearing in mind that the Claimant
was expecting or requiring the Respondents (who were employers) to perform
their part of the contract of employment by paying her sick pay. That decision
does not constitute any arguable error of law.
45.
We appreciate that in the present case, unlike some of the reported
cases such as the Crook case, the Claimant as an employee was not
working during the period in question and she was entitled under her contact of
employment not to work but she was expecting her employers to perform their
contractual obligations by paying her sick pay. In essence, the Claimant was
doing everything that a sick employee of the Respondent would have had to do,
which was to claim sickness pay. So the Claimant’s conduct amounted to
affirmation bearing in mind the famous words of Lord Denning MR in Western
Excavating (ECC) Ltd v Sharp [1978] IRLR 27 when he said in a judgment
with which Lawton and Eveleigh LJ agreed that when an employer is guilty of
repudiating a contract of employment, the employee:-
“15… must make up his mind soon after the conduct of which he
complains: for, if he continues for any length of time without leaving, he will
lose his right to treat himself as discharged. He will be regarded as having
elected to affirm the contract.”
46.
In reaching the conclusion that is precisely what the Claimant did here,
we have not overlooked the fact that the Employment Tribunal did not
specifically use the words “unequivocal act” in its reasoning, but that
is not fatal for three reasons. First, the applicable principle relates to the
need for affirmation (express and implied) and not for an “unequivocal act”
as was pointed out in the Crook case. Second, the thrust of the
reasoning of the Employment Tribunal was correct when its judgment was
considered in a manner consistent with the approach was explained by Mummery LJ
in Fuller v London Borough of Brent [2011] IRLR 414 when he said
that:-
[31] “…The
ET judgment must be read carefully to see if it has in fact correctly applied
the law which it said was applicable. The reading of an ET decision must not,
however, be so fussy that it produces pernickety critiques. Over-analysis of
the reasoning process; being hypercritical of the way in which the decision is
written; focusing too much on particular passages or turns of phrase to the
neglect of the decision read in the round: those are all appellate weaknesses
to avoid.”
47.
The second ground of appeal is that the Employment Tribunal failed to
take into account all the relevant circumstances between the grievance decision
on 13 February 2009 and 24 March 2009 when the Claimant sent in her letter of
resignation, namely the exchange of without prejudice communication and the
acceptance that the Appellant may have been medically unfit to attend a
meeting. This submission fails to appreciate that the Employment Tribunal had,
at paragraph 30 explained the developments in that period when Mr Poyner of the
Respondents made enquiries about possible alternative work for the Claimant.
On 24 February 2009 he offered her the role of Dental Commissioner and he then
sent a reminder to her on 12 March 2009 after the Appellant did not respond.
48.
These matters were set out clearly in the decision of the Employment
Tribunal at paragraph 30 and there was no need to repeat them when they set out
their conclusions. In any event what is important is that nothing was done by
the Claimant during that period to show that she was not bound by the existing
contract but she behaved and continued to behave as if her contract with the Respondent
existed. Indeed she did not do anything at all except accepting her sickness
pay, as she was entitled to do under her terms of employment.
49.
The third ground of complaint is that the Employment Tribunal took into
account irrelevant circumstances in wrongly relying on the fact that the Claimant
had requested an extension in sick pay and complained about an apparent change
in her job title in August 2008 when her grievances were still pending. It is
true that this was one of the matters referred to by the Employment Tribunal in
paragraph 55 when explaining why it had concluded that the Claimant had
affirmed the contract as appears in the passage set out in paragraph 37 above.
50.
It is, however, important to bear in mind that this was not the sole
reason why the Employment Tribunal considered that the Claimant had affirmed
the contract but was secondary to the delay of nearly six weeks between the
grievance decision on 30 February 2009 and the Claimant’s subsequent
resignation. In our view it was quite appropriate for the Employment Tribunal
to refer to this because it shows very clearly that the Claimant was unhappy
about her contractual provisions and her change in job title. Although after
the grievance decision she failed to protest further, she acted in accordance
with the contract by requiring and accepting her sick pay.
51.
In all those circumstances we have come to the conclusion that the
Employment Tribunal’s decision cannot be criticised and notwithstanding the
able arguments of Mr Tindal, who has put forward all points on behalf of the Claimant
with skill, this appeal must be dismissed.
