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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Conry v Worcestershire Hospital Acute NHS Trust [2017] UKEAT 0093_17_0911 (9 November 2017) URL: http://www.bailii.org/uk/cases/UKEAT/2017/0093_17_0911.html Cite as: [2017] UKEAT 0093_17_0911, [2017] UKEAT 93_17_911 |
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| At the Tribunal | |
| On 26 October 2017 | |
Before
THE HONOURABLE MRS JUSTICE SIMLER DBE
PRESIDENT
| APPELLANT | |
| RESPONDENT |
Transcript of Proceedings
JUDGMENT
| For the Appellant | MR SHAEN CATHERWOOD (Of Counsel) Instructed by: Elliots, Bond & Banbury Solicitors Shaftesbury House 49-51 Uxbridge Road London W5 5SA |
| For the Respondent | MS JESSICA SMEATON (Of Counsel) Instructed by: Capsticks Solicitors LLP 35 Newhall Street Birmingham B3 3PU |
CONSTRUCTIVE DISMISSAL
HARASSMENT
Having made relevant findings about the events of a mishandled office reorganisation and its consequences for the disabled Appellant, the Employment Tribunal failed in error of law to consider and address these findings when dealing with the Appellant's claims for constructive dismissal and unlawful harassment. The case was remitted to the Employment Tribunal accordingly.
THE HONOURABLE MRS JUSTICE SIMLER DBE
The facts and the Employment Tribunal's judgment
"43. On the following Monday, 13th April 2015 I had a clinic at Warndon, Worcester in the morning. When I finished my appointments I went to turn off the computer before I left to go to Kidderminster Hospital. I noticed an email had been sent from Mary Steadman at 10.31 am that day. I was aware that Mary Steadman was on holiday that day. I did not register the contents, but when I arrived at Kidderminster at about 12.30 pm I was shocked by what I saw. I could not believe what had been done. Gemma Case was sitting at the desk which had easy access to phone and printer. My papers had been moved to the right hand side of the office on a shelf above a table, where it was made clear that I was now expected to sit.
44. The place where my work was placed was an old table which I had obtained from the Oncology Department and had previously been used as supplementary work space. It was contrary to the type of desk recommended by Occupational Health. The table was flanked on either side with filing cabinets. On top of the right hand side one was the vaccine fridge which was buzzing loudly. My contact telephone numbers had been moved from their easy access to a wall behind a computer monitor, which required me to stand up to see them. My files were placed on a shelf above my head and they fell on top of me when I reached up to get them. A large old printer had been placed on my table which did not work and which restricted my workspace. There was a phone on my table but it had a new extension and was not connected to the office phone or the answer-machine. I now had to cross the room to answer any phone which rang or to get to the one printer which was working, putting me at risk of tripping over trailing telephone wires. The whole space presented hazards for me.
45. I could not believe what I was seeing. The changes appeared to be designed to make the office an obstacle course for me. It appeared that the only beneficiary was Gemma Case who was established at the desk that was more suitable for my needs, in spite of only being in the office one day a week. This struck me as discriminatory for my disabilities.
46. I was very upset. I felt that I had been badly let down. I had gone through an unsettling process with Occupational Health; and now changes had been implemented without warning me or consulting me in any way. They made the office more unsafe for me than it had been before. None of them assisted me. I was staggered that I had not been consulted by Mrs Steadman in advance of these changes being made. She had not only not bothered to consult me in advance of such changes but had not even bothered to inform me of what had been done after so many months of inertia. I still do not understand why she did not phone me. She had regularly contacted me on my work mobile or my personal mobile to speak to me about work matters in the past. Indeed she rang me later on that day (13th April)".
"You will recall that the meeting with Occupational Health was arranged by you last September. That meeting was over six months ago, but nothing has been done to assist me or the office in the interim. That did not concern me. As you know, most of my work is carried out away from the office.
It was, therefore, both a great surprise and a huge disappointment when I came into the office on Monday to see that I now had to sit at a special desk (table) in a special place, which was considered to be more convenient for me. It was not. I am afraid to say that the opposite was the case. This could have been avoided but I was not informed, let alone consulted, in advance.
I was then told that it had been done for my benefit; and that it had taken Gemma some time and effort, and that I should thank her. I was stunned. I would indeed like to know what guidelines she and her husband were following, and what instructions they had been given.
I hope that you will appreciate that sending me an email at 10.31am as I was leaving Warndon clinic on Monday was unlikely to be read and digested by me before I arrived at the Kidderminster office. I do not consider this adequate warning in advance."
"2. Why nothing was done to assist me following the meeting last September for over 6 months?
3. When you made the decision to rearrange this office?
4. What was the reason for the sudden action without informing or consulting me?
5. Why was I not consulted before the changes were made, which were designed to assist me, so that I could ensure that they did do so rather than the opposite? The repositioning of the phone is just one example of how badly this rearrangement was carried out.
6. Why was I not informed about them in advance?
7. Why did you not ring me to warn me, however late in the day, rather than send an email, which I was unlikely to see before I was confronted by the unhelpful rearrangement of the office?
I feel that it is important for me to state how distressing your whole approach has been. When I have received your written response I will need to consider the position and, if necessary, seek advice, as to what action it would be appropriate for me to take."
"I did not just resign, I resigned by reason of constructive dismissal, the main reason for which was your bullying behaviour towards me. Frankly I was devastated that I was compelled to take this step because I enjoyed doing the job, which I regarded as important. It has upset me greatly and caused me considerable stress and distress.
Please do not write to me again. I suggest that any further communication should go through HR or the Trust's legal department.
I do not propose to respond in detail to your letter, save for the matters with which I feel compelled to deal. My complete response will be contained in the chronology which I am preparing in support of my claim for constructive dismissal. I am waiting for a copy of my Occupational Health file to complete it."
The rest of the letter responded to certain matters raised in Mrs Steadman's letter but did not refer back to the events of the office reorganisation.
"30.51 The claimant now had a table without drawers, and a telephone with it's own external line, but no number on it. Her table and computer had been moved closer to the door, but not to where recommended by Rose Davis. The claimant's files had been put on a shelf above the desk, which required her to stand and reach for them. There was no recommendation for this arrangement in the assessment. The claimant had a large printer on her desk but it was marked as not working. She did not have the recommended office chair.
30.52 Mrs Steadman sent the claimant an email to advise her that the office layout had changed. The claimant was at a clinic, and read the message as she left to return to the office.
30.53 By the time she arrived at the office, Mrs Steadman had left, leaving Gemma Case, and a colleague, Jackie Hewlitt, in the office. Mrs Steadman recognised that the recommended changes had only partially been implemented, in particular, the claimant's work space had not been moved to the closest point because the book case containing the cardio rehab material had not been moved.
30.54 The claimant arrived at the office and saw the changes. She was upset. She sat down at her new desk. She was unhappy that she did not have fixed drawers (although it had been a recommendation that she did not have fixed drawers) and appears to have ignored or not heard Gemma's explanation that drawers would be obtained for her, and a working printer would be ordered to replace the broken one on the desk.
30.62 The claimant had written to Mary Steadman on 15 April 2015, indicating that she thought the matter was closed. She believed she was entitled to a full note of what was proposed to be discussed so that she could consider having a union representative present. The claimant agreed to meet subject to knowing who would be there, and what it would be about. Mrs Steadman gave evidence that she simply wanted at that stage to talk through what had happened and to understand what had happened from the claimant's perspective.
30.72 On the 6th May the claimant replied p.298 stating Mrs Steadman had not defined the status of the meeting or its purpose and the claimant required that it be put in writing.
30.74 She then made further demands before she could attend any meeting she required written responses to the following:-
(1) Full details of what Mrs Steadman asserted was the incident on 13th April;
(2) Why nothing had been done to assist her;
(3) When Mrs Steadman had made decision to rearrange the office;
(4) What was the reason for sudden action without informing or consulting the claimant;
(5) Why she was not consulted before the changes were made;
(6) Why she was not informed in advance;
(7) Why not ring to warn rather than sending an email;
She then made the following comment;
'You appreciate it would not be appropriate for you to conduct such a meeting in the light of the matters raised in this letter'
30.78 The claimant was in the vicinity of the OH department on the 11th May and chose to drop in. She met with C Allen, the office manager (and a nurse).
30.79 She made complaints about her manager, saying she has major issues with her, and expressed her upset explaining about the office move. She insisted on complete confidentiality, although in evidence she accepted that such confidentiality could not extend to practitioners exchanging information without the OH.
30.142 Later the same day the claimant resigned 'by reason of the behaviour I have had to endure'. She indicated she would make a claim for constructive unfair dismissal, and make a formal complaint to the General Medical Council about Dr Basheer.
30.143 Mrs Steadman responded to the claimant's letter of resignation, inviting her to reconsider, and at least to meet with her to discuss matters. The claimant refused the offer accusing her of defamation, attempting to rewrite events retrospectively and potentially presiding over a kangaroo court."
(a) The Tribunal found she was "upset" (paragraph 30.54) and "was very bothered once [the furniture] had been moved" (paragraph 51);
(b) She acted angrily, using the words (of herself) "fucking cripple" (paragraph 30.55);
(c) She expressed "huge disappointment" in her letter of 15 April 2015;
(d) She made clear her concerns about the circumstances of the reorganisation in her letter of 6 May 2015; and again on 11 May when she spoke to the office manager and the nurse (paragraphs 30.78 and 35.79);
(e) In her witness statement she stated that she was "shocked" by the changes and that she "could not believe what had been done".
(d) Failing to advise the claimant adequately in advance of the rearrangement of her office (amounting to harassment)
"46. Before the claimant arrived she was aware, that changes had been made. In October 2014 Occupational Health recommended changes and the claimant had seen that report. This did upset the claimant however we do not consider it was done with the intention to create an intimidating environment, but in an attempt to meet the requirements of the Occupational Report. We can see that it would have been good management practice to advise and consult all the staff before making the move, but we do not consider this amounts to harassment because of the claimant's disability.
Reasonable adjustments
49. Occupational Health undertook a workplace assessment and made recommendations on 29 October 2014. The recommendations involved giving the claimant a dedicated telephone on her desk, and moving her desk to the nearest point to the office door. There then followed a lengthy delay of nearly 6 months whilst a dedicated phone line and computer line were fitted in the office. Mrs Steadman chased the financing of it. The layout recommended involved moving a bookcase and materials belonging to the cardiology rehabilitation unit, to ensure that the claimant was close to the door, and to remove trip hazards. The move did not happen until 11/12 April 2015 some 23 weeks after the recommendations. Then all that happened was a tidy up, and the movement of a table without drawers by a few feet. The book case remained in situ and we heard nothing to suggest any attempt had been made to agree its removal or repositioning. The claimant did then have a dedicated phone and would have had a printer once it had arrived.
Requiring the claimant to continue to work in an environment which was known to be unsuitable, because of the lack of a proper office chair, and the situation of her desk, which was further into a small room, requiring her to navigate cables, desks and chairs to get out, and without a fixed line phone she could use, had been recognised in 2 reports as inappropriate. Having seen the reports the respondent delayed by nearly 6 months before beginning to implement the changes. At the time of the claimant's resignation, not all of the changes had been implemented. The adjustments were accepted as reasonable by the respondent, but attempts to make them were lacklustre.
50. We consider that the respondent failed to make reasonable adjustments in a timely fashion. That said we did note the claimant's comment that she wasn't bothered by the furniture positioning, before it was moved.
51. It is clear she was very bothered once it had been moved.
52. We find that it would have been reasonable for the respondent to comply with the requirements of the report in a timely fashion and to ensure that there were no delays.
53. The lack of urgency on the part of the management is deprecated. We were really concerned at the number of times witnesses indicated that they had to accept these delays because 'that is the way it is in the NHS' without recognising their own and collective responsibility to make things happen when the recommendations are reasonable.
54. At the date of the claimant's resignation the chair which had been recommended, and accepted as a reasonable adjustment by the respondent in November 2014, still had not been provided. The recommendation was specific and reasonable, and affordable. It should not have been left to the claimant to take responsibility for obtaining and trialling chairs when there was a specific measured recommendation which simply had to be implemented. However, the claimant in her evidence made it clear that she was not that worried about the chair. This was however a failure to make a reasonable adjustment. She was placed at a disadvantage, as it had been recognised that she should have a specific chair with wheels, and she did not get it.
55. The respondent did in fact provide a dedicated telephone line to the claimant's desk, but not in a timely fashion. This suffered the same 23 week delay without any reasonable explanation. In the circumstances we find this to have been a failure to make a reasonable adjustment. In this case we noted however that the claimant was adamant she did not want a dedicated line, and did not welcome its arrival. She said in evidence that she had a mobile phone which she was happy to make calls on. It cannot be said therefore that this caused her a detriment".
Constructive dismissal
"56. We have found in favour of the claimant on 2 allegations of a failure to make reasonable adjustments. In each of these failures we have found that the claimant did not express any real concern about the particular adjustments. These cannot therefore be, and have not been pleaded by the claimant, as the reasons for her resignation.
57. We note that despite a catalogue of complaints of the way in which the claimant alleges she was treated, at no time during her employment did she lodge a grievance or make any sort of formal complaint.
58. We learned from the claimant's own evidence that she considered there to be some form of conspiracy involving almost every work colleague whom she has named in this case, including staff in OH, her own manager, and a junior administrator, HR and matron. We found this not to be credible".
59. It was put to Mrs Steadman that she was a close friend of Rose Davies, when in fact there had been little or no contact between them since training together, about 20 years previously.
60. The claimant also alleged that Mrs Steadman was a close friend of Gemma's because she had been invited to her wedding. This level of suspicion did not assist the claimant's own credibility.
61. When we unpicked the alleged links between the conspirators, we found it highly improbable that there was any form of collusion. Dr Basheer, in OH, for instance had never met the claimant before.
62. Mrs Steadman was making conscious decisions to avoid the claimant being suspended for an investigation into misconduct, against the express wishes of Matron Cupper.
63. Gemma Case was a junior administrator working mainly from home, with no power to impact directly on the claimant's position at work.
64. Rose Davis worked in Occupational Health and had no obvious motive to do anything more than her job.
65. There was no evidence that HR wanted rid of the claimant indeed they advised that the £800 chair should be bought for her.
66. Matron Cupper wanted the claimant suspended (which may not have been unreasonable at that time to enable an investigation to be completed) but added that she recognised that the claimant had contributed 30 years as a nurse and wanted to keep her.
67. Even Mr Conry in his statement said that the claimant was suspicious of Mrs Steadman's real motives as early as July 2014. This suspicion appears to have clouded the claimant's interpretation of the events which followed.
68. Mr Conry's statement reflected what we have found to be the true position. After leaving Dr Basheer the claimant was desperate not to return to work, indicating that they were 'going to suspend her'. We do not find that to be the case, but do judge that to be the reason why she resigned, as almost immediately a letter of resignation followed.
69. We do not find that the claimant was bullied by anyone in the respondent organisation. We do find however examples of her own assertive behaviour being perceived as aggressive and intimidatory, words often used to describe bullying conduct.
70. We did note that there is no mention of the respondent's alleged discriminatory behaviour because she is a disabled person in the letter of resignation.
71. We do not find that there was any fundamental breach of the condition of confidence and trust by the respondent such as to justify the claimant's resignation. We have considered whether this was a series of breaches, with the meeting with Dr Basheer being the 'last straw'. However, with the exception of the failures to make reasonable adjustments, about which the claimant was specific in saying they didn't bother her, we found no potential breaches of the terms of the claimant's contract. The breaches of the statutory duty to make reasonable adjustments we do not find to be breaches of contract. One the facts we found no breach of either an express or implied term such as to enable the claimant to resign and claim unfair constructive dismissal.
there were a number of concerns the Claimant had with the reorganisation. In particular she was not consulted prior to the change (paragraph 46); her desk was changed to a table that was not suitable (witness statement paragraph 44); the new desk was not by the door as required, and the obstructing bookcase was still in place (paragraph 49); she no longer had easy access to the incoming general enquiries phone, which was moved to the other side of the office and meant she would have to get up to answer it (witness statement paragraph 44); her files were placed on a shelf above her head so that she had to stand to reach them and they fell on top of her when she tried to get them (paragraph 30.51 and paragraph 44 witness statement); a large printer was on her desk, which did not work and restricted her workspace (paragraph 30.51 and paragraph 44 witness statement); there were trip hazards including wires that she had to navigate, and other obstructions (paragraph 49 and paragraph 44 of her witness statement).
Ground one: constructive dismissal
(i) there must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach;
(ii) the breach must be sufficiently serious to justify the employee resigning, or it must be the last in a series of incidents which justify resignation;
(iii) the employee must leave in response to the breach and not for some other unconnected reason;
(iv) the employee must not delay too long in terminating the contract in response to the employer's breach otherwise he may be deemed to have waived the breach or agreed to vary the contract.
"14. The following basis propositions of law can be derived from the authorities:
1. The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27.
2. It is an implied term of any contract of employment that the employer shall 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: see, for example, Malik v Bank of Credit and Commerce International SA [1997] IRLR 462, 464 (Lord Nicholls) and 468 (Lord Steyn). I shall refer to this as 'the implied term of trust and confidence'.
3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347, 350. The very essence of the breach of the implied term is that it is 'calculated or likely to destroy or seriously damage the relationship' (emphasis added).
4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at p.464, the conduct relied on as constituting the breach must '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' (emphasis added).
5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para.[480] in Harvey on Industrial Relations and Employment Law:
'[480] Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the 'last straw' which causes the employee to terminate a deteriorating relationship.'
15. The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v Motorworld Garages Ltd [1985] IRLR 465. Neill LJ said (p.468) that 'the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term' of trust and confidence. Glidewell LJ said at p.469:
'(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (See Woods v W M Car Services (Peterborough) Ltd [1982] IRLR 413.) This is the "last straw" situation'.
16. Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim 'de minimis non curat lex') is of general application
20. I see no need to characterise the final straw as 'unreasonable' or 'blameworthy' conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.
21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.
22. Moreover, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee's trust and confidence has been undermined is objective (see the fourth proposition in paragraph 14 above)."
(i) the reasonable adjustment failures; and
(ii) the conspiracy claim.
"68. Mrs Conry's statement reflected what we have found to be the true position. After leaving Dr Basheer the claimant was desperate not to return to work, indicating that they were 'going to suspend her'. We do not find that to be the case, but do judge that to be the reason why she resigned, as almost immediately a letter of resignation followed."
She submits that conclusion is not directly challenged and was a conclusion open to the Employment Tribunal on the evidence and its findings. In other words, the reason found by the Employment Tribunal for the Claimant's resignation was a non-repudiatory one, so that the appeal must fail in any event.
Ground two: harassment
"(1) A person (A) harasses another (B) if -
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of -
(i) violating B's dignity, or
(ii) creating and intimidating, hostile, degrading, humiliating or offensive environment for B.
(4) In deciding whether conduct has the effect referred to in subsection (1)(b) each of the following must be taken into account
(a) the perception of B;
(b) the other circumstances of the case
(c) whether it is reasonable for the conduct to have that effect."
Burns/Barke procedure and disposal
Postscript
(a) the Tribunal's findings as to the real reason for resignation cannot stand (paragraph 32);
(b) the events of 13 April 2015 can be relied on as part of a series of acts or incidents that cumulatively amount to a repudiation of the contract by the Respondent (paragraph 25);
(c) The Claimant's increasing anxiety about potential suspension, even if unjustified, can be seen as having its roots in the events of the office reorganisation (paragraph 31);
(d) The meeting with Dr Basheer cannot be regarded as an entirely innocuous act (paragraph 29).
It will be for the Tribunal to consider each of these fact-sensitive issues unfettered by its previous findings of fact and in light of any fresh evidence that it considers it necessary to admit. I have little doubt that it will wish to hear further evidence from the Claimant, but that is a matter for the Employment Tribunal.