Appeal No. UKEAT/0623/11/DM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 30 March 2012

Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
MR D EVANS CBE
DR B V FITZGERALD MBE LLD FRSA

MR P D COX	APPELLANT

NORTHERN DEVON HEALTHCARE NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR P D COX
(The Appellant in Person)	
For the Respondent
	MR GRAHAM WATSON
(of Counsel)
Instructed by:
Messrs Bevan Brittan LLP
Kings Orchard
1 Queen Street
Bristol
BS2 0HQ	

SUMMARY
UNFAIR DISMISSAL
Compensation
Contributory fault

Employment Tribunal (to whom the matter was remitted following an earlier decision for which the reasoning has been so scanty that it could not be known whether there had been an error of law) determined that the Claimant’s compensation should be reduced by reason of contributory conduct without identifying with any detail what that conduct was, and whether it was blameworthy, taking apparent account of a number of matters which could not be blameworthy, and misunderstanding the approach to take to a loss of trust and confidence between one employee and another in the context of a sizeable employer.  It was in error to do so.  A cross‑appeal was also allowed because the ET had failed to consider when the period of loss for which it was making provision might end without unfairness on the part of the employer.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

1.	This appeal from the decision of an Employment Tribunal at Exeter is the second appeal in the same litigation to have come to this Tribunal.  It is a matter of regret that matters which happened as long ago as 2007 and 2008 should in consequence of the Judgment we are about to give remain unresolved in 2012.  The appeal is in form one against a decision sent to the parties on 6 June 2011 on the remitted hearing following the earlier appeal to this Tribunal.  The procedural history is this.

2.	A claim by the Claimant that he had been unfairly and constructively dismissed and for damages in respect of detriment caused to him because he had made public interest disclosures, was before the same Tribunal, identically constituted, in 2009.  In a Judgment of 30 June 2009 that Tribunal concluded that the Claimant had been unfairly dismissed and had been discriminated against because he had made public interest disclosures, but it came to the conclusion that there had been such a total and mutual loss of trust and confidence between the Claimant and Respondent that there would be no remedy in respect of the dismissal.

3.	The dismissal claim itself, separate from the disclosure allegations, had been withdrawn by the Claimant because of the stance he understood the Respondent to have taken.  That, in the circumstances which I shall describe, was because the Respondent employer considered that although he had been purportedly dismissed from employment, the Claimant had been reinstated.  The findings of the Employment Tribunal in its hearing in June 2009 were, however, to the effect that though it considered that an offer of reinstatement had been made, there had not been unconditional acceptance of that offer so that the parties were not ad idem on the issue.

4.	The underlying facts in order to put those decisions in context are set out very clearly in the Judgment of this Tribunal, presided over by Wilkie J, Judgment in which was delivered on 1 March 2011.  There is, thus, no need to repeat the facts in the same detail, merely to summarise them.  Reference may be had to the decision of the Wilkie Appeal Tribunal, reference UKEAT/0341/10.

5.	To aid understanding of this decision for those who may read this the Claimant had been employed as a maintenance assistant by the Respondent hospital authority.  He became concerned that there had been a number of instances in which the health and safety of patients and others in the hospital had been compromised.  Accordingly he made disclosures to that effect using the internal whistleblowing procedure to do so.  Those disclosures were made in April 2006.  Although the employer’s procedures provided for a timely response there was no response in form to the disclosures for over two years.  But, there was a response, in effect, when a director of Estates, to whom ultimately the Claimant, as an employee in the Estates Management Department, was responsible, called a general meeting on 1 November 2007.  At that meeting it was indicated to the staff that someone in the department had made allegations which, it was suggested, had no real force.  Shortly after that, and perhaps inevitably, the manager of the Estate Management Department sought, by asking each of those who worked for him, to discover who it was who was the whistleblower and had made what were said to be malicious and unfounded complaints.

6.	The Claimant, whose complaints the Tribunal in its first hearing appeared to consider well founded as complaints, felt that he would be obliged to identify him self, if he were honest, as the whistleblower and, not wishing to accept that he should be put in that position, indicated to his employer that he would withdraw from work pending the resolution of a complaint about what had happened.  The whistleblowing policy should have provided for the anonymity of the complainant.  

7.	That letter, written shortly after 1 November 2007 when the general meeting occurred, was taken to be a refusal to work by the complainant and a withdrawal from work so that he was dismissed on 19 November 2007.

8.	When he raised a grievance and appeal against the decision to dismiss him for that reason, the hospital management determined that the decision was wrong and should be rescinded.  There was considerable evidence before the original Tribunal as to the terms in which that occurred.  The letters and notes of meetings which occurred in April and March 2008 are capable, arguably, of indicating that there had been no concluded agreement, at least as to parts, of the on-going relationship of employment between the Claimant and the Respondent, but, putting it shortly, made it clear that a decision had been reached by the employer and that Mr Cox, for his part, agreed with that (but not with other aspects of the on-going relationship between him and his employer) to the effect that he would be reinstated in his former post.

9.	However, there was a real problem.  The Tribunal identified it in its first decision as being that these facts gave rise to a total and mutual loss of confidence between the Claimant and the Respondent.  What the Tribunal appears to have had in mind, given the terms of its second decision, was that the fact that the Claimant had made allegations about shortcomings in the way in which the Estates Management had been run, was capable of being seen by others who worked in the Estate Management Department as him criticising them, which would make his continued working in that department untenable on a practical and human level.

10.	The Tribunal, as it appears to us, thought that the breakdown of trust and confidence, as they described it, between the Claimant and the management of the Estate Management Department was the same thing as a total and mutual loss of trust and confidence between the Claimant and his employer.

11.	The Tribunal was invited after its first decision to review the conclusion it had made.  The Claimant had withdrawn his claim of unfair dismissal because he understood it to be accepted that he had not been dismissed on 19 November, but had been reinstated.  Hence, it was beside the point for the Tribunal to discuss whether there had been a meeting of minds as to reinstatement or not as a result of which it had come to the conclusion it did about the events of 19 November.  Thus it was that on 30 November 2009 the same Tribunal in its review decision, as we shall call it, revisited whether the Claimant had to be treated evidentially as having been reinstated by the employer.

12.	It did so because an earlier decision by Judge Toomer on 2 November 2008 had found as a fact that the Claimant had been reinstated.  That finding, therefore, stood.  Thus, the Tribunal allowed the application for review.  The significance of reinstatement was that the case, which came before this Tribunal on appeal against the first decision, was that the date of dismissal was 15 May 2008 when the Claimant accepted the repudiatory breach of the Respondent employer which consisted of telling him that he could not work in the job for which his contract provided but had instead to work in the IT Department for which his contract did not provide.  This was, therefore, a repudiatory breach which he could accept, and did accept, by resigning.

13.	The Wilkie Appeal Tribunal said in its conclusions as follows:

“50. We uphold the cross‑appeal to a limited extent.  It seems to us that the Employment Tribunal was wrong in attributing the reason for the resignation to be the fundamental breach of contract which it found.  It seems to us to be clear that the reason for the resignation was focused on the refusal to reinstate him into a job in the Estates Department.  The fundamental breach found by the Tribunal was a different breach to that.
51. However, we uphold the appeal to the following extent.  First, in our judgment, the Tribunal was wrong in law not to characterise the unilateral change in his work away from working in the Estates Department without agreement as a fundamental breach of contract.  The breach of contract which they found, by requiring him to work in the IT Department, was, rightly, characterised as a fundamental breach of the term that they could not change his work without agreement.  By parity of reason the announcement that he would not be permitted to return to the Estate Department work must also have been a fundamental breach.”

That announcement was made in early May 2008.

“52. We find both the cross‑appeal and the appeal succeed to this further extent, that each side has correctly criticised the Tribunal for failing, explicitly, to address the question whether the constructive dismissal, which it found, was a fair or an unfair constructive dismissal.  We think that the reasoning in relation to that is so scanty that it is not possible for us to decide whether or not it found that it was fair or unfair and if so why.  That is an issue which will have to be sent back to the Employment Tribunal to determine.
53. Similarly, in our judgment, the appeal succeeds in that the reasoning of the Tribunal, in support of its conclusion that it should limit that amount of the remedy to the notice period, is so scanty that it is not possible for us to say whether that is a conclusion which was sustainable on the evidence.”

It went on to provide that the whole issue of remedy and the various factors to which the Appeal Tribunal had referred should be remitted to the Tribunal for further consideration, since the reasons which had been provided gave no sensible basis for concluding whether or not the Tribunal’s conclusions were right. 

14.	It is unnecessary for present purposes to refer further to the conclusions section of the Wilkie Appeal Tribunal.

15.	On remission, therefore, the Tribunal was directed to consider whether or not the constructive dismissal was fair or unfair.  It determined it was unfair and there is no appeal against that decision.  Secondly, it concluded that there was no reduction under Polkey; there is no appeal against that decision.  It did, however, consider that the Claimant should have his damages reduced by 80 per cent because of his contributory conduct.  Next, it determined as to remedy that the 20 per cent which remained to be awarded in respect of dismissal was £10,297.96, thereby indicating that the starting point, which it would have otherwise have awarded on a 100 per cent basis, was just over £51,000.00.

16.	The Claimant appeals against the percentage of deduction.  The Respondent appeals to us in respect of the period of loss which the Tribunal appears to have accepted and its failure, as is submitted, to deal with arguments put to the Tribunal that that period of loss should be circumscribed by some consideration of when it might be that the Claimant’s employment by the Respondent might otherwise in the due course of events have terminated.

17.	The Tribunal’s conclusions as to contribution against that background need to be set out in full.  They are given in paragraph 15:

“15. It now falls to us to determine the extent to which the Claimant’s conduct contributed to such dismissal.
15.1 Only a small proportion of the Claimant’s grievances and complaints can be seen as protected disclosures and in our findings of fact in our previous judgment we have not found that the protected disclosures played any material part in the circumstances which brought the Claimant’s employment to an end.
15.2 We have compensated the Claimant for the detriment he suffered as a result of his protected disclosures and there has been no appeal to the EAT in respect of that aspect of our judgment.
15.3 Since 19 November 2007, the Claimant has acted in such a way as was incompatible with the continuance of his employment being intent on causing maximum damage and disruption to the Respondent.  We accept that in response to those matters the Respondent has in turn sought to discredit the Claimant.
15.4 These matters are illustrative of the total and mutual loss of trust and confidence, which we identified as existing from November 2007.
15.5 Although the Claimant had been restored to the payroll with effect from 18 November 2007 in March 2008 when his grievance about his dismissal was determined there was at that time no unconditional offer of reinstatement made.  The letter from Maureen Bagnell of 13 March 2008 (110) made a conditional offer of reinstatement - the conditions were not accepted by the Claimant who elected to remain on paid leave.  The parties were as we have previously found never ad item (sic) as to the terms of reinstatement or re‑engagement.
15.6 The Claimant had absented himself from the Estates department on the grounds of fear of abuse from other members of that department.  By that time two managers within that department were on extended sick leave on account of the problems they experienced in seeking to manage the Claimant and it was not a realistic possibility for the Claimant’s employment to continue in that department.
15.7 At a meeting with Jac Kelly (we interpose to say she was the Chief Executive at the time) on 6 May 2008, the Claimant made it clear that he was unwilling to accept that he was bound by the terms of his contract of employment a statement which we have found to be a fundamental breach of contract by the Claimant.
15.8 What we note is that the Claimant’s letter of resignation was on the face of it based on the Respondent’s refusal to reinstate him to the Estate department we are not satisfied that this reflects the real reason for resignation.  Had the Claimant been eager to return to the Estates department for bona fide reasons he would no doubt have accepted the offer of reinstatement conditional upon mediation made in the Respondent’s letter of 13 March.  We are satisfied that the Respondent’s concern that he wish to return to Estates arose from ulterior motives was reasonably held having regard to the Claimant’s decision that he would not accept that he was bound by term of his contract.
16. In all these circumstances and having regard to the submissions made by the parties’ representatives we are unanimous in our finding that the Claimant, by his conduct, contributed to his dismissal to the extent of 80%.  His attitude, actions and approach to the Respondent as his employer since 17 November 2007 served to make the continuance or renewal of his contract of employment untenable.  As we have stated previously we are satisfied that the Respondent had made extensive and bona fide efforts to accommodate the Claimant in their workforce in a place where trust and confidence might be restored and further conflict avoided.”

18.	The legal framework within which contributory fault is to be considered is specified in section 123(6) of the Employment Rights Act 1996.  That reads:

“Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

19.	It is well established and not in contention before us that the conduct must be assessed as blameworthy.

20.	The Tribunal’s decision at paragraph 15 and 16 is accepted by Mr Watson in his realistic, frank and responsible submissions to us as falling short of the standards of craftsmanship one might have expected of an Employment Tribunal.  It is well established that Tribunal judgments are not to be expected to be the most elaborate examples of careful legal draughtsmanship that may be seen.  But, he accepts that the reasoning set out is, to an extent, unclear and inconsistent with the earlier reasoning of the Tribunal when its first decision and review decision are taken into account, and that its approach to what it describes as “an unconditional offer of reinstatement” does not appear to have taken on board the clear conclusion it came to itself in its review hearing and the decision of this Tribunal, chaired by Wilkie J, that the Claimant was to be taken to have been reinstated before he was constructively dismissed in May 2008.

21.	The test in section 123(6) is a causation question.  What has to be caused is the dismissal.  Where a dismissal is constructive the focus must, therefore, be upon why it was that the employer committed what must have been a fundamental and repudiatory breach of contract.  That the employer was in repudiatory breach must almost inevitably mean that the employer is, to that extent, at fault and responsible for the dismissal which occurred.  But, it is open to a Tribunal in an appropriate case to conclude, dependent entirely upon the facts, that the employer’s breach of contract, repudiatory though it might be, was itself caused to some extent by the blameworthy conduct of the complainant.

22.	Here it is simply not clear to us precisely what the Tribunal had in mind.  Just as the Wilkie Appeal Tribunal criticised this Employment Tribunal for the scanty nature of its decision, so in turn do we.

23.	Paragraph 15.3 gives no particulars of what it was that the Claimant did which was “incompatible with the continuance of his employment” and why the Tribunal should come to the conclusion, in this decision and for the first time, as to his intention in doing it when he did it.  Without those particulars we would not be able to know whether there was here an error of law or not.  

24.	Further, when the Claimant acted as he is said to have done, is a matter of significance.  He may legitimately have considered after 19 November 2007 that he was no longer employed by the trust until in late March, and with effect certainly from 4 April 2008, he was reinstated.  Actions which are “incompatible” with “the continuance” of employment will need to be examined, as it seems to us, bearing in mind that they may have been taken at a time when the Claimant understood, as indeed did his employer, that he had been dismissed and was no longer in employment and, thus may be characterised in a very different way, not least in reaching any conclusion as to whether those actions constituted conduct which was in any sense blameworthy.

25.	At paragraph 15.4 the Tribunal focused, as it has done throughout both of its decisions, upon what it has identified as a total and mutual loss of trust and confidence.  We consider that this finding is misplaced.  Where, at any rate, an employer is a sizeable undertaking, the relationships within a department of that employer between one employee and another employee, even if the second is in a senior position to the first, may be such that trust and confidence is lacking as between the two of them.  That is not the same as the employer which employs both losing trust and confidence in either.

26.	The Claimant was careful, as to some extent was the Respondent, in the documentation we have seen in noting that the Claimant’s complaints so far as confidence were concerned related to the confidence he had in the then existing management of the Estates Management Department.  That is far removed from any loss of confidence in the employer as a whole.  Indeed to accept reinstatement, and ultimately to take the action of resigning from employment, is inconsistent with the idea that the Claimant’s own trust and confidence did not exist in his employer as a whole at the time of reinstatement, just as it is inconsistent with the view that this employer lacked the necessary trust and confidence in him for the employment to continue.  After all, the employer had decided to reinstate him, and must have had trust sufficient for that.

27.	Thus, we do not see what possible force paragraph 15.4 had in the way in which it is expressed.  If the Tribunal was meaning to say, as it might have done, that the Claimant had behaved in some manner which was blameworthy so as to make a resumption of relationships between him and those with whom he had formerly worked in the Estates Management Department untenable, and that that was the reason for the employer’s direction that he should work elsewhere, then there would be a basis for finding that the Claimant’s actions might have contributed to the dismissal because they would have contributed to the breach of contract which the employer committed.  We have been shown by Mr Watson in the course of his submissions material which is capable of founding such a claim, but it has to be carefully considered and carefully placed within context, not least because the evaluation of the reduction, if any reduction be fair and reasonable, has to be carefully thought through.  

28.	Thus, a Tribunal here would need to set out what it was that the Claimant did and when, and (so far as relevant) why; it would need to consider, if the facts demonstrated a loss of confidence in the management of the department in which he worked, whether he was justified or not in having that loss of confidence; it would have to ask whether he was to be returned to serve the same management as that which he had earlier criticised; it would need to ask the extent to which, in the light of what he had done, it was reasonable or otherwise for the employer to issue the direction it did which constituted the breach of contract.  All those matters are matters which, as far as we can see, this Tribunal did not address explicitly; its decision is scanty; it cannot, therefore, stand.

29.	At paragraph 15.5 and additionally the Tribunal revisited the question of reinstatement and regarded itself as having previously found that the parties were not ad idem as to the terms of that.  This appears inconsistent with its own conclusion that there had indeed been reinstatement, which it had made on the review hearing.

30.	In paragraph 15.6 the Tribunal sets out a fact as it saw it but there is no reason intrinsic to this that reflects blame on the Claimant.

31.	The statement at paragraph 15.7 might be so, but again, it seems to have no causative relevance, so far as we can tell, to the decision to direct that the Claimant go to another department and work there.

32.	The facts at paragraph 15.8 query the reason for resignation, but that must be taken to have been accepted for there to be a finding not in dispute before us that there had been a constructive dismissal since the resignation must be, at least in part, in response to the repudiatory conduct alleged.

33.	The reasoning here is as to whether the Respondent’s view as to the Claimant’s motives was or was not reasonably held.  It is difficult, though perhaps not impossible, to relate that to the cause of the employer’s action and it may be that the Tribunal was saying here that the Claimant was acting in a blameworthy manner in failing to accept an offer of reinstatement conditional upon mediation.  However, care must be taken to distinguish between reinstatement which must be taken as having happened and a refusal of mediation; as to which Mr Cox points out to us that though mediation was mentioned it was never offered.  Mr Watson’s response is that, it having been suggested, Mr Cox might have asked for mediation in order to pursue it.  This, it seems to us, is a matter of fact which is open to a Tribunal to consider further in the light of all the facts.

34.	Finally, as to paragraph 16, in which the Tribunal drew these strands together, there is no obvious reasoning which underlies the figure of 80% as opposed to any other percentage.  The expression “attitude, actions and approach to the Respondent […] served to make the continuance of renewal of his contract of employment untenable” is too brief a statement to give us any assistance as to what precisely is meant and whether it may conceal an error of law.  It also appears, perhaps, to reflect a view that continuance in the same department with the same managers was to return to a situation in which neither the managers or Mr Cox had any confidence: but what the Tribunal would have to do would be to determine whether Mr Cox, for his part, was right not to have confidence in his immediate managers, if that was so, or whether his managers were right not to have confidence in him, if that was so.

35.	Accordingly, for very much the same broad reasons as given by the Wilkie Appeal Tribunal we have no hesitation in accepting that this Judgment cannot stand and the ultimate decision must be remitted to the Tribunal.

The cross‑appeal
36.	In paragraph 17 the Tribunal dealt, in very summary form, with what it said about remedy:

“The schedule of loss prepared by the Claimant’s representatives, and included in the bundle before us, was not challenged by the Respondent and accordingly we adopt it awarding the Claimant 20% of the sum claimed, namely the sum of £10,297.96, against which credit may be taken for the sum of £1,107.69 being the amount of our previous award on the assumption that this had been paid.”

The £1,107.69 relates to the public interest disclosures matters that we have earlier mentioned.

37.	What Mr Watson complains about here is that the Tribunal said nothing about the base figure from which the £10,297.96 was derived.  We are disadvantaged in considering this submission because the schedule of loss to which the Tribunal referred was not put before us on this appeal.  Neither party had it with them.  However, the statement that the schedule of loss put before the Tribunal was not challenged by the Respondent is, we are confident, not an accurate one.  That is because Mr Watson tells us that there was a challenge, in this sense: that he argued that the Tribunal had to consider when it was, in the ordinary course of events, that the employment relationship between Mr Cox and the Respondent might end.  This might end by Mr Cox himself withdrawing from employment or it might end by the employer taking action though that action would have to be shown to be justified (see Johnson v Rollerworld UKEAT/0237/10/JOJ).

38.	But the Tribunal simply did not recognise, so it appears, that that argument was made.  Mr Cox, for his part, accepts that something along those lines was said to the Tribunal.  A submission on what seems to us an obvious point appears, therefore, to have been made but not resolved.  We, therefore, again cannot tell whether here there was any error of approach or law in the Tribunal adopting the base line figure which it did.  It seems to us, therefore, that on this ground the cross‑appeal too has to be allowed.

Conclusions
39.	In conclusion, therefore, we are satisfied that both the appeal and the cross‑appeal must be allowed.  This has the consequence, sad though it is, that the case will have, once again, be remitted to the Employment Tribunal.  Both parties are as one in suggesting to us that the Tribunal should be a new Tribunal.  Mr Cox says, and we accept, that this Tribunal has had a number of goes, as he puts it, at determining the issues and has failed.  He suggests that the Tribunal has had preconceived ideas, not least about trust and confidence and about reinstatement, which have affected its decision making.

40.	Mr Watson, too, accepts a fresh Tribunal is necessary.  There is a further pragmatic reason for so concluding which is that Judge Simpson has retired and indeed may have conducted the hearing under appeal having come out of retirement to do so.  We do not think that we should disturb his retirement further by inviting him to make a further effort.  A totally fresh Tribunal seems to us to be necessary.

The scope of the remission
41.	The Tribunal must begin by accepting first that the Claimant was reinstated with effect from 4 April 2008 to be taken as having been in the employment since 17 November 2009.  It must be understood, however, that between 17 November and 4 April it is unlikely that the Tribunal will hold that either party regarded Mr Cox as then being subject to the contract of employment.  Secondly, it must accept that the reason for the dismissal was that Mr Cox was entitled to and did accept the conduct of the Respondent toward him as repudiatory when the Respondent told him that he must thereafter work in the IT Department and no longer in the Estate Management Department.

42.	The Tribunal must accept the conclusion of fact that the public interest disclosures were not the cause of that dismissal.  They are entitled to, and must, consider within the meaning of section 123(6) of the Employment Rights Act whether the cause of the dismissal, that is the repudiatory instruction given to Mr Cox, was to any extent itself caused or contributed to by any action of the complainant which was a blameworthy action.  It is open to the Tribunal, and it will consider starting with the schedule of loss which was put before the Tribunal in the last occasion, to decide whether there should be any, and if so what, limit to the compensation claimed before any deduction for contribution is made, in respect of the possibility that the employment relationship might have terminated for good reason - we emphasise that - at some later stage.

43.	It will be open to the Tribunal to decide that there should be some or no contributory fault.  The Polkey issue has already been determined.  It is not the same as identifying a date at which the loss will stop.

44.	Unless either party would wish us to define the scope of the remission any more clearly and closely than that, we hope that will be a sufficient basis for the Tribunal to proceed.  It will be open to that Tribunal to hear evidence as put before it in relation to those issues.

45.	The parties are to be encouraged in this case, if at all possible, to reconcile their differences.  After all, what is at stake is now a matter of pounds and pence.