THE
HONOURABLE LADY SMITH
Introduction
1.
Dr Connaughton is a general practitioner. Patricia Gillen was employed
as his receptionist until she resigned in January 2010. She claimed,
successfully, that she was unfairly constructively dismissed and was awarded
compensation of £7,988. This is Dr Connaughton’s appeal from the judgment
of the Employment Tribunal at Glasgow (Employment Judge Ms Susan O’Brien
QC sitting with members), in her favour, registered on 6 June 2011.
2.
We will, for convenience, continue to refer to parties as Claimant and
Respondent.
3.
The Respondent was represented by Ms J Paton, solicitor,
before the Tribunal and represented himself before us. The Claimant was
represented by her sister, Mrs R McNulty, before the Tribunal and by
Mr Grant-Hutchison, Advocate, before us.
Background
4.
The findings in fact are contained in paragraphs 1 to 50, 53-58, 61
and 62 of the Tribunal’s judgment. (Whilst paragraphs 51, 52, 59 and 60, bear
to be findings in fact, they are not. Paragraphs 51 and 52 are findings in
law, paragraph 59 is a reference to the response for the Claimant to an
Order for Additional Information, and paragraph 60 contains a finding of
mixed fact and law.) The background that can be elicited from the findings in
fact is as follows.
5.
The Respondent is a general practitioner. He is a sole practitioner.
He employed the Claimant as a receptionist between April 1992 and
26 January 2010, when she resigned.
6.
By October 2009, relationships between the Respondent’s staff
(which, apart from the Claimant, included a practice manager, another receptionist
and a secretary) had deteriorated. On 26 October, the Respondent issued
new practice rules to his staff. Three of them concerned the processing of the
mail (which the Tribunal considered could be interpreted as indirect criticism
of the Claimant, mail processing having been her responsibility) and other
rules concerned conduct at work and were directed towards requiring employees
to restrict their conversation at work to work matters. On 2 November
2009, the Respondent wrote to his four employees inviting them to put any
grievances they had in writing and warning all of them that he may have to
consider disciplinary proceedings. The secretary (Ann Maxwell), the
Practice Manager (Angela McMenemy), and the Claimant, all submitted
grievances to the Respondent.
7.
By letter dated 19 November 2009 to the Claimant, the Respondent
intimated that he was considering taking disciplinary action against her in
relation to three allegations of misconduct which concerned her behaviour
towards other members of staff, her having openly expressed dissatisfaction
with her working conditions in front of patients and regarding a comment she
had made about the Respondent, to a patient.
8.
The disciplinary hearing took place on 2 December 2009. The Respondent was accompanied by a locum doctor (Dr Jolanta Sudomir).
The Claimant was accompanied by Ricky McArthy, (a trade union
representative who was acting in a personal capacity). The Claimant was
advised of the outcome by letter of 10 December 2009. It was that the Respondent
issued the Claimant with a written warning to remain on her record for a period
of one year. It was not a final written warning. The Claimant did not, at
that stage, resign.
9.
The Claimant appealed. The appeal hearing took place on 13 January 2010. The appeal was heard by the Respondent who was, again,
accompanied by Dr Sudomir. The Claimant was represented by
Stuart McLennan. At the start of the hearing, Mr McLennan questioned
the appropriateness of the Respondent hearing the appeal since he had dealt
with other cases in which parties had, for instance, jointly agreed to an
independent assessor or sought assistance from the NHS or ACAS. The Tribunal made no findings in fact regarding what resources, if any, would have been
available to the Respondent who was, as above noted, a sole practitioner, as
regards enlisting the assistance of another person to hear the appeal or,
indeed, to assist at the earlier investigatory or disciplinary stages.
10.
The appeal proceeded and Mr McLennan made detailed submissions in
support of the Claimant, pointing to what, as she saw it, were the weaknesses
in the evidence against her. The Respondent provided a detailed response to
the appeal by letter dated 21 January 2010 in which he upheld his
original findings and explained that he did not accept that the imposition of a
written warning was, in all the circumstances, inappropriate.
11.
Regarding the Claimant’s grievance, it was set out in a letter from her
dated 6 November 2009. On 9 November 2009, the Respondent
spoke to her about it. He responded to her grievance by letter dated 11 December 2009 which provided detailed answers to each part of it. He upheld
her grievance in two respects and apologised for those matters. Otherwise her
grievance was not upheld. She did not appeal the outcome of her grievance.
12.
Meanwhile, on 7 January 2010, another GP practice in the area,
the Main Street practice, had advertised a vacancy for a part-time
receptionist. The practice manager of the Main Street practice had been a friend
of the Claimant’s for many years. The Claimant applied for that post by letter
dated 11 January 2010 i.e. about one month after she was advised of
the outcome of her disciplinary hearing and grievance, and prior to her appeal
hearing, she applied for another job. She was invited to attend an interview
there which she did, on 20 January. The Claimant was offered the job and
accepted it. The Tribunal’s findings in fact in relation to the job offer and
acceptance are as follows:
“53…the claimant was not offered the job verbally. The claimant
was offered the job by letter signed by Ms Ann Moore, dated Monday
25 January, R/41, which reached the claimant on Tuesday 26 January.
…
59. The Tribunal’s information order of 21 July 2010
required the claimant to specify the date when she was offered the new job.
Her representative from the CAB replied on her behalf that she was offered the
job on 25 January 2010.
…
106. The only important factual difficulty for the Tribunal to
resolve was when the claimant knew she was getting the new job…they did not
think the claimant was lying when she said she had not been offered the new job
on 25 January, as was submitted. The Tribunal resolves this issue by
finding that the claimant knew informally through her friend that she was going
to be offered the job on or about 25 January, but did not actually receive
the offer until 26 or 27 January.”
13.
The additional information order to which the Tribunal then refer
included the following:
“4. Please confirm the date on which you were offered the job
that you commenced on 3 February 2010 and the date that you accepted
that offer of employment.”
14.
The answer to that question which was provided by the Citizens Advice
Bureau (“CAB”) on the claimant’s behalf was:
“4. 25/01/10.”
15.
Two other documents had been lodged with the Tribunal by the Claimant
and on her behalf. On the morning of 6 December 2010, the Respondent’s
solicitor received, from the Claimant’s sister, a fax of what purported to be a
handwritten letter from the Claimant accepting the offer of a job from the Main
Street Medical Practice. It bore to be dated 27 January 2010 and was in the following terms:
“Dear Mrs Moore
Further to your letter dated 25.1.2010 offering me the position
of medical receptionist with Main Street Practice which I received today I
write to advise you I will except (sic) the offer. I must however
honour my contract of employment with Dr K J Connaughton which requires me
to give four weeks notice. I will be available to take up the post on or after
the 1 March 10.
Yours sincerely
P Gillen.”
16.
An hour and a half later the Claimant faxed a letter to the Respondent’s
solicitor which also purported to be a copy of the Claimant’s letter accepting
her new job, again dated 27 January 2010. It was in different terms. It
stated:
“Dear Mrs Moore
Further to your letter dated 25.1.10 offering me the position of
medical receptionist with Main Street Medical Practice which I received today I
write to advise you I will except (sic) the offer. I must however
honour my contract of employment with Dr K J Connaughton.
Yours faithfully
P Gillen.”
17.
Plainly, the letters were not identical nor were they consistent with
the finding that the Claimant had received the written job offer on
26 January, not 27 January. The Tribunal concluded that the letters
were not genuine, that they had been manufactured ex post facto and that
they constituted an attempt to mislead the Tribunal. They dealt with the issue
at paragraph 104:
“104. Ms Paton rightly raised a similar issue about the
veracity of the claimant’s letter of acceptance relating to her new job. Two
versions were produced, very late, in response to Tribunal orders. They are
both in the handwriting of the claimant. They are not identical. See
pages 235 and 237. The claimant said she had not kept a photocopy of the
letter she had actually sent the new employers but she did still have a draft
of that letter. She had re-written it slightly to reflect what she could
remember about changes she had made to the one actually sent. Her sister had
sent the Tribunal the first draft and she had almost simultaneously sent in her
version. The Tribunal did not accept this at all. It was argued that this
goes to her credibility, as a letter dated 25 January (a Monday) might be
received on either 26 or 27 January. There is a suggestion that one
version of the letter introduces a reference to 27 January in order to
fortify the case that the claimant resigned before she knew about having a new
job. The Tribunal agreed, found that both these letters had been manufactured ex
post facto, and that this was indeed an attempt to mislead it. They
considered the implications of this carefully (see para 106). They also
considered the submission that Mrs McMenemy’s presentation of the case
involved a lot of leading questions, which might have affected the quality of
the claimant’s evidence. They agreed with Miss Paton that at times the
claimant was inclined to sound paranoid in her interpretation of events.
However the Tribunal unanimously concluded that otherwise they considered that
the claimant was credible and reliable. Mrs McNaulty (sic) was found to
be credible and reliable in connection with the very limited amount of relevant
factual evidence she gave.”
18.
The Respondent had a practice disciplinary procedure. It set out a
specific format for the holding of a disciplinary hearing. There was an issue
between parties as to whether or not that disciplinary procedure formed part of
the Claimant’s terms and conditions of service. The issue arose from the fact
that the procedure was not contained in that part of her employment contract
documentation which expressly bore to set out the terms and conditions agreed
between the parties. In the course of his evidence, the Respondent stated that
he did not follow that procedure (which set out a specific format for the
holding of a disciplinary hearing). Rather, as he told the Claimant, he
followed his solicitor’s advice regarding what procedure he should adopt.
19.
On 25 January, the Claimant asked the Respondent what measures he
would put in place to ensure that similar events would not be repeated. It was
agreed, before us, that the evidence given by the Respondent with regard to
that matter was as stated at paragraph 17 of the form ET 3 namely
that the Claimant asked him whether things would return to normal and he
advised her that he thought they would, that it would take time, that the Claimant
asked how she could be sure, that he explained she could not be sure and that
only time would tell. The Tribunal characterised that as the Respondent
dismissing the Claimant’s enquiry (see paragraph 49). They made no findings in
fact about the Claimant’s reaction to his response or about what she took, if
anything, from his response.
20.
On 26 January the Claimant submitted a letter of resignation to the
Respondent which was in the following terms:
“Dear Dr Connaughton
I write to formally tender my resignation, with effect from
26.1.10. I will of course honour the four week notice period as per my contract.
Yours sincerely
P Gillen.”
21.
The Claimant in fact left the Respondent’s practice on
29 January 2010 as a row broke out at reception. She began her new
job on 4 February 2010. She was, however, paid by the Respondent
until 22 February 2010. The Tribunal made no findings in fact as to
the Claimant’s reasons for resigning.
The Tribunal’s Judgment
22.
The Tribunal found that the Respondent was in material breach of
contract and that that was the effective cause of the Claimant’s resignation.
In the course of their discussion of the case they refer to the Respondent
being in breach of contract by not following the practice disciplinary
procedure, by issuing the rules which were indirectly critical of the Claimant’s
work, by the way he handled her grievance and by the way he responded to her
enquiry on 25 January 2010. The first of these was a breach of an express
term of the contract and the remainder were breaches of the implied term of
trust and confidence. In particular, they found:
“50. …the respondent materially breached the express terms of
the contract of employment by failing to follow the disciplinary rules. This
was a fundamental breach of express terms of the contract of employment.”
23.
The Tribunal did not accept Ms Paton’s submission that the
disciplinary procedure was not incorporated as a term of the Claimant’s
contract. They found that the failure to follow it was a breach of the implied
term of trust and confidence and that it was:
“…so fundamental that it stands alone” (para 109).
24.
They also found that the disciplinary process followed by the Respondent
was unfair because he acted as investigator, made the disciplinary decision and
heard the appeal. The reason for so concluding was that:
“51. …it would have been practicable for the respondent to ask
someone independent to carry out at least one of those roles and in particular
to hear the appeal.”
25.
As above noted, the Tribunal did not, however, make any findings in fact
as to whether or not any other person could have assisted the Respondent with
the disciplinary and/or appeal process. The Tribunal went on and concluded
that the manner in which the Respondent conducted the disciplinary proceedings
was a fundamental breach of the implied duty of trust and confidence.
26.
The Tribunal found, further, that the Respondent was in breach of the
implied term of trust and confidence by issuing the new practice rules to which
we have referred above because they could be interpreted as an indirect
criticism of the Claimant’s work, by treating her grievance differently from
the way he treated grievances by other staff members, by failing to take any
proactive steps to investigate issues concerning the Claimant which, according
to them “were defined as harassment in the relevant practice policy document”
or to apply that policy and by failing to take seriously her question about
what measures he would put in place to prevent repetition of problems on
25 January.
27.
Although, as above noted, the Tribunal found a breach of trust in
confidence in the Respondent’s handling of the Claimant’s grievance, they also,
at paragraph 98, upheld Ms Paton’s submission that, since the Claimant
did not appeal the outcome of her grievance, she was to be taken as having
affirmed the Respondent’s handling of it (W E Cox Toner (International)
Ltd v Crook [1981] ICR 823) and stated:
“98. …that defeats the claim that the treatment of the
claimant’s grievance amounted to breach of contract entitling the claimant to
repudiate.”
28.
However, at paragraph 110, regarding the handling of the Claimant’s
grievance, the Tribunal stated that the Respondent was biased. That was
because he did not progress the other employees’ grievances. They also found
that there was inconsistent treatment in that the other members of staff were
not disciplined.
29.
The Tribunal found that the exchange between the Claimant and Respondent
on 25 January was the “last straw”:
“110. …in respect that it was an explicit acknowledgement that
the respondent had no plan to deal with any of the claimant’s concerns which
fell within the ‘bullying’ category as defined in the policy.”
The reference to “bullying” appears to be a reference back to
matters raised by the Claimant in her grievance.
30.
At paragraph 112, the Tribunal dealt with what they recognised was
the most contentious issue between parties namely whether the Claimant had
resigned because she obtained another job as opposed to resigning in response
to any breach of contract:
“112. …Ms Paton repeatedly emphasised the precise timing of
the job offer and the job acceptance, but the Tribunal considered that this
missed the point. The significant fact was that this employee, who had worked
in the same place for decades, and in the same job for 17 years, applied
for a new job on 11 January. Moreover, she applied for that new job soon
after she had split up from her partner and become a single parent, and she
applied notwithstanding the fact that the new job offered worse pay and
conditions. It also meant taking on the risk of a probationary period before
the contract was firmed up. The claimant’s application was made before the
outcome of the disciplinary proceedings was known, and the Tribunal considered
that she might not have proceeded if the outcome had been different, and if she
had been reassured that the ongoing staff problems would be addressed.
Ms Paton suggested to the claimant that she would not have resigned if she
had not been offered the new job, and the claimant rejected this. The Tribunal
considered the evidence carefully, and thought that the claimant would have
done so, partly because she was so indignant about her treatment, but also on
the basis that her health was suffering. It notes, for example, the passages
in the disciplinary proceedings at R/165,167, in addition to a wealth of evidence
that she was concerned about her own raised blood pressure. She ascribed this
to the events at work, rightly or wrongly.”
31.
We note that the Tribunal, however, made no findings in fact regarding
the Claimant’s personal circumstances, no findings in fact regarding any
circumstances surrounding or implications of her becoming a single parent, no
findings in fact regarding the state of her health, no findings in fact about
her understanding of the cause of any ill-health from which she was suffering,
no findings in fact regarding the terms on which she was offered the job at
Main Street, no findings in fact as to what in fact were her reasons for
resigning (as opposed to what they thought might have been her reasons) and,
assuming that they accepted her denial of the Respondent’s case that she
resigned because of the Main Street practice job (although they do not actually
state that they did), no explanation of how and why on the facts found by them
they felt able to do.
32.
In paragraph 114, the Tribunal stated that the timing of the Claimant’s
acceptance of her new job was not important. They stressed that the
disciplinary process “was a fundamental breach of contract” and that there was
a breach of the implied term of trust and confidence for the reasons to which
we refer above.
33.
The Tribunal were critical of the Respondent; he mishandled the Claimant’s
grievance and they were unimpressed by what they referred to as his “high
handed” approach to the disciplinary process. With regard to that they state
that he could have asked Dr Sudomir to play a part, could have asked one
of the other doctors in practice in the same building to help out, could have
called on the resources of the Health Board and could have sought help from ACAS, all without having heard evidence on those matters or, as we have already observed, making
any findings in fact in those respects. They also found that the Respondent
was “not impartial” (paragraph 101) and refer to a criticism that had been
levelled at the Claimant in respect of “her refusal to pull out files for a
locum doctor”; they criticised the Respondent for having failed to take account
of what they refer to as “evidence favourable to the claimant” in that regard.
However, again, there are no findings in fact about that matter.
34.
Other aspects of the Tribunal’s judgment to which we would draw
attention are as follows. At paragraph 96, they express their sentiments
regarding the Respondent:
“The Tribunal started off with some sympathy for a busy doctor,
as the incidents recounted by the Claimant were largely trivial.”
and, later in
the same paragraph, added:
“…as the proceedings went on, that sympathy waned.”
giving as the
reason for that that:
“He showed no understanding of the sensitivities of his
workforce as a whole, and it came as no surprise when Anne Maxwell gave
evidence that his Rules had made everything worse. His rules…are
extraordinary: the Tribunal thought them better suited to a primary school than
an adult work environment.”
35.
In paragraph 97, the Tribunal articulate trenchant criticisms of
the Respondent’s handling of the Claimant’s grievance, describing his approach
as “deplorable” and stating that the fact that the relevant part of the Claimant’s
grievance was dismissed “disturbed them”.
36.
At the end of paragraph 104 of their judgment, the Tribunal stated
they were:
“…unimpressed to learn that the doctor had placed the Tribunal
bundle of documents in the surgery and instructed Ms Maxwell and
Mrs McMenemy to become familiar with it before the hearing.”
37.
We note, however, that they made no findings in fact to that effect.
CAB Witness
38.
Ms Paton had applied for a witness order in respect of a person
from the CAB. The purpose was to enable her to establish that the Claimant had
said that the date she received the offer of her new job was 25 January
2010, bearing in mind that the response to the additional information order
provided by the CAB on her behalf had been that the job offer (and, we note,
acceptance thereof) occurred on 25 January 2010. Ms Paton’s
application was refused. At paragraph 94, the Tribunal said:
“The witnesses’ position in this case had been equivalent to
that of a solicitor advising post litem motam – indeed, the claimant
went to Citizens’ Advice in order to obtain legal advice in connection with
these Tribunal proceedings. This situation can be distinguished from the
position in the New Victoria Hospital case, where the evidence of what
the personnel people said (in writing) was part of the actus reus, before the relevant dismissal took place. In that case, the Employment Appeal Tribunal
determined that the documents did not amount to ‘communications with an actual
view to the litigation in hand and the mode of conduct of it’, which is a
necessary precondition before a party can made the assertion of privilege)
quoting Sir John Donaldson in M & W Grazebrook Ltd v Wallens
1973 IRLR 139 at para 8). The documents were accordingly not protected
from discovery, and admitted in evidence. It follows that the observations of
the EAT on privilege were obiter. In the view of the present Tribunal the
legal landscape has changed since 1993 in any event. Article 6(1) now requires equality of arms as one of the facets of a fair trial. It is plainly
unfair to prevent one side from obtaining the advice given in the course of
litigation, while allowing the other side access to its equivalent, simply
because in one case the advisor is a solicitor (or counsel) and in the other
the advisor is not. There can be no equality of arms in such a situation, and the
problem is magnified where the disadvantaged party will usually be the claimant
who is facing a legally represented employer, as he is. In addition to that
application of the Human Rights Act 1998, both two interpretations of existing
authority, and also to its regulation of the conduct of the present
proceedings, the Tribunal has applied to the over-riding objectives stated in
Employment Tribunals (Constitution and Rules of Procedure)
Regulations 2004, Rule 3. That is the objective to deal with cases
justly, which includes “ensuring that the parties are on an equal footing”. It
should be added that much later it became clear to the Tribunal that the
evidence of Ms MacDonald would have been of doubtful relevance to its
decision, although that was not obvious at the time of the submission.”
39.
The reason for the Tribunal’s references to equality of arms are
unclear. They did not give consideration to the fact that Ms Paton was
not seeking to lead evidence of any advice that had been given to the Claimant
but was simply seeking to lead evidence that a particular statement (set out in
a document which had been provided to the Tribunal) had been made by the Claimant.
The Tribunal, further, gave no consideration to the question of whether, even
if privilege applied, it had, given that disclosure, been waived.
Case Management Discussions
40.
On 16 November 2010, there had been a Case Management Discussion
(‘CMD’) before Employment Judge Claire McManus. At paragraph 6 of
that note, Employment Judge McManus recorded that the Claimant’s position
in relation to the reason for her resignation included the handling of her
grievance and that the disciplinary action taken against her was flawed. That
was the first occasion on which the Claimant stated that the Respondent’s
handling of the disciplinary process was causative of her resignation.
Employment Judge McManus also noted that the Claimant stated that the
date of her constructive dismissal was 25 January 2010 when the
conversation between her and the Respondent to which we have referred above,
took place. Further, the effective date of the termination of employment was
said to be 22 February 2010.
41.
On the fifth day of the hearing before Employment Judge O’Brien, 17 March 2011, a CMD was convened. At that stage, the evidence was not completed.
The note of that CMD is in the following terms:
“1. At the end of the fifth day of the unfair dismissal hearing,
the Employment Judge convened a case management discussion. The members
remained to listen, but did not participate. The judge indicated that she was
very concerned about the time the hearing was taking. The claimant had given
evidence at length, along with two very short witnesses, Mrs McNulty and
Mrs Michelle Robertson. Then the respondent had given evidence,
necessarily at some length, and his evidence had just concluded. Ms Paton
had said she wished to call four further witnesses (a fifth not now being
permitted), and yet there was only one day left.
2. Moreover, the judge said she had been struck by the unusual
fact that in a claim for constructive dismissal, the deliberate breach of an
actual term of the contract of employment had willingly been admitted by the
respondent. A Tribunal was usually looking at a factual dispute over the
breach or breaches of the implied term of trust and confidence, and of course
that too was part of the case here. She suggested that this unexpected
admission might be important. Ms Paton demurred, and said that there was
no admission of breach. Further, the judge said she was surprised to see such
a fierce fight over a claim of relatively no value, even taken at its highest.
The claimant’s schedule of loss R/34 was partly made up of a loss of sick pay
rights, which might have been lost in theory but which appeared not to have
given rise to any actual loss in practice, as the claimant had not needed to
claim sick pay in the first year of her employment. However one looked at this
claim, it was likely to be worth less than £10,000. The cost of the dispute
had probably already outstripped the sum at stake. Yet it appears there was no
end in sight.
3. The judge expressed her concern that there should now be a
serious effort by parties to achieve a settlement. In addition, she urged
Mrs McNulty to reconsider the opaque claim for lost holiday pay in light
of the fact that the claimant had been paid to the end of her notice, although
she had not worked through that time. Indeed, she had been working and earning
in her new job for the last fortnight of it. Proof of the details would take
sometime, yet it was unlikely that the holiday pay owing would come to as much
as had already been paid by the respondent for the notice time.
4. Finally, the judge pointed out that the witnesses who the
respondent proposed to lead were unlikely to add much to his position. There
was a discussion about what each would speak to. (They were Mrs McMenemy,
Ms Barrie, Mrs Subaster and Ms Maxwell). She urged
Miss Paton to consider carefully how necessary they all were. She also
said that it was not inevitable that the hearing would have to reconvene for
submissions and she said that written submissions would now be helpful to
reduce the amount of time needed in the future.”
Affidavits and Notes from Employment Judge and Members
42.
Following the presentation of this appeal, given that part of it alleged
bias, the Respondent was directed to lodge affidavits and the Employment Judge
and members provided their comments.
43.
In his affidavit, the Respondent referred to what was said at the CMD on
17 March 2011. He added that the Employment Judge had also questioned
whether his other witnesses could add anything since other matters going on in
the practice did not matter. Ms Paton, in her affidavit, stated that she
indicated there had been no admission of breach of contract. She stated that
the Employment Judge had questioned her regarding the usefulness of the
witnesses that were still to be called and when she explained that they could
speak, amongst other things, to what happened on 21 October, that the
judge had stated that the Tribunal ‘did not care what happened on
21 October’. Ms Paton’s recollection of that statement was supported
by a note made at the time, a copy of which was included in the appeal bundle
(the relevant passage is at p.145).
44.
By note dated 21 August 2011, the Employment Judge stated:
·
At the CMD on 17 March, she did say that the case had become
a simple one standing the Respondent’s “unforced admission of a deliberate and
material breach of contract”;
·
Ms Paton did deny that that had taken place “but she was
wrong then and she is wrong in this Affidavit to say that there had been no
such admission”;
·
That she said she would hear submissions in due course;
·
That she said that establishing breach of contract did not mean
that the Claimant had succeeded as the Tribunal still had to decide on the
reason for her resignation;
·
That she did say that more evidence about what happened on
21 October 2009 would not be useful as there had already been far too much
evidence along the lines of “she said x” and “no she said y”. Since the Claimant
had not pursued an internal appeal, it seemed likely that the Respondent had
already won that point;
·
That she certainly did try to discourage Ms Paton from
leading all the witnesses on the Respondent’s list;
·
That she had set out to cut down the Claimant’s expectations
about the value of the claim and very deliberately and explicitly encouraged
parties to discuss settlement – she called the CMD specifically to see if the
case could be settled.
45.
The lay member Mr Piggott advised, by email dated 2 November
2011, that he recalled that the Respondent had conceded that a breach of
contract had occurred although that was not accepted, at the time, by
Ms Paton. He did not recall the Employment Judge saying that the Tribunal
‘did not care what happened on 21 October’ but he did recall her saying
that other things happening in the practice ‘were of no importance’. The other
lay member, Ms McCorquodale, did not recall the Employment Judge stating
that they ‘did not care what happened on 21 October’ but did recall her
questioning its relevance to the case.
The Appeal
Respondent’s Submissions
46.
Dr Connaughton presented a clear, well structured and well
researched set of submissions.
47.
First, the Tribunal failed to consider reducing the Claimant’s award by
25% in accordance with the ACAS code, paragraph 31. We note that
Ms Paton did not present any case to the Tribunal that there should be
such a reduction. Dr Connaughton did not suggest that she had done so.
That being the case, the Tribunal cannot be criticised for not having reduced
the award and we propose to say no more regarding this ground of appeal.
48.
Secondly, Dr Connaughton submitted that the Tribunal had erred in
refusing to grant a witness order for the representative from the Citizens
Advice Bureau. He referred to New Victoria Hospital v Ryan
[1993] ICR 201 per Tucker J at p 203H, to Harvey – Industrial Relations
and Employment Law Div P1 at para 507, and to The Stair Memorial
Encyclopaedia: Evidence at para 205. He said that there was no evidence
that the Claimant thought that the CAB were giving her legal advice. It was
not clear what capacity they had acted in. It was wrong to refuse the order
for the witness particularly when, at paragraph 95 of the Tribunal’s
judgment, they had relied on information provided by the CAB. Further, the
Employment Judge had not recorded that, when giving the Tribunal’s decision on
this matter, she said she:
“had to consider the many unrepresented litigants.”
49.
Mr Grant-Hutchison did not take issue with that being an accurate
indication of what was said by the Employment Judge. We would observe that the
task of an Employment Judge is to consider and adjudicate upon the case before
her, not to consider the interests of any general body of unrepresented
litigants. Further, in this case, the comment appears to have been taken as
being indicative of a bias towards the Claimant, which we can, in the whole
circumstances understand. It was a comment which ought not to have been made.
50.
The third ground of appeal related to the Tribunal’s finding that the Respondent
had failed to follow the practice disciplinary procedure. He submitted that
the Tribunal had failed to note the significance of the fact that, when the Claimant
wrote to him asking to appeal, she herself relied on the disciplinary procedure
thereby, his argument seemed to go, affirming any breach by him. He referred,
in that regard, to the case of W E Cox Toner (International) Ltd.
51.
The fourth ground of appeal related to the Tribunal’s finding that the
conversation between parties on 25 January 2010 was the “last
straw”. The contract had, however, by then, been affirmed. That was,
accordingly, a solitary event. There had been an extended period between the
alleged breach of the disciplinary procedure (which was said to have occurred
on 16 December 2009) until the date of her letter of resignation (26 January 2010). The Claimant had waited too long to be able to rely on any
flaws in the disciplinary process. He referred, in that regard to Western
Excavating (ECC) Ltd v Sharp [1977] EWCA Civ 165.
52.
Dr Connaughton then turned to the first of his two main grounds of
appeal. He submitted that the Tribunal’s decision was a perverse one. He
referred to the Tribunal’s conclusion that the two letters submitted by fax on
6 December 2009 were both fabricated, having been manufactured ex
post facto in an attempt to mislead the Tribunal. The Claimant had, at no
time, accepted that either letter was false. The Tribunal had rejected her
version of events. The Tribunal gave no or no proper consideration to the
implications of that presentation of falsified documents or her continued
insistence that they were genuine. They had also, when finding her “otherwise
credible and reliable” failed to take account of their own finding that she had
had an informal conversation in which it was indicated to her that she was
being offered the job at Main Street yet she had given evidence that, prior to
receiving the written job offer, she had had no communication with anyone
whatsoever about getting that post. Again, Mr Grant-Hutchison did not
demur from Dr Connaughton’s submission that that had been her evidence.
Dr Connaughton observed that the Claimant’s position regarding the job
offer and her acceptance of it could have been corroborated by witness evidence
from her new employers. She had not called any such witness. That, in the
circumstances, amounted to a significant failure on her part and called her
credibility into question. He relied, in that regard, on Devon Grocers
Ltd v Finnan UKEATS/0061/MT at paragraph 40.
53.
Dr Connaughton then turned to the Tribunal’s conclusion that his
failure to follow the practice disciplinary process amounted to a breach of
contract. However, the Claimant had taken no grievance in respect of that
matter, it was not mentioned as a grievance at the disciplinary hearing, it was
not mentioned as a grievance in the course of the appeal hearing, it was not
mentioned in her resignation letter, it was not mentioned in the form ET1 and
nor was it mentioned in her response to the order for information issued on
21 July 2010 and responded to on 2 August 2010. Whilst the CAB
had, by letter dated 3 September 2010, referred to “a flawed disciplinary
process” no detail of the alleged flaws was given nor was it stated that the
handling of the process caused the Claimant to resign. The allegation that the
disciplinary process was flawed was repeated at the case management discussion
on 16 November 2010 but, again, that was lacking in specification.
It was not until 21 November 2010 that specifics were provided of the
ways in which it was said that the Respondent had not complied with the
practice disciplinary rules. That was in an e-mail from Mrs McNulty.
Accordingly, it was not until 10 months after the Claimant had resigned
and some two weeks after she had presented false documents that the Claimant
set out how and why she asserted that the Respondent had failed to follow the
practice disciplinary process. In these circumstances it was,
Dr Connaughton submitted, perverse of the Tribunal to accept that any
failure on his part to follow the practice disciplinary rules caused the Claimant’s
resignation.
54.
Still on the subject of perversity, Dr Connaughton submitted that
the Tribunal’s conclusion that the conversation between parties on
25 January was the last straw was also perverse. Although that
conversation had taken place the day before the Claimant’s resignation, there
was no mention of it in her letter of resignation, no mention of it in the form
ET1 (in that form, the date of the Claimant’s alleged unfair constructive
dismissal was given as 29 January), and in the response to the additional
information order dated 2 August 2010, the request to specify the
date on which the Claimant considered she was constructively dismissed was
answered:
“31/01/2010”
55.
That was subsequently corrected, by the CAB in their letters of
25 August and 3 September 2010 to the date 21 January 2010 and,
finally, at the CMD on 16 November 2010, 25 January 2010 was given as
the date of constructive dismissal. The Claimant made no mention of the
conversation between her and the Respondent on 25 January playing any part
in the reason for her resignation prior to November 2010. Further, the
answers to the additional information order, dated 2 August 2010
stated that the Claimant’s job offer and acceptance both occurred on
25 January 2010.
56.
In all these circumstances, Dr Connaughton submitted it could only
be concluded that the Tribunal were perverse in their conclusion that failure
to follow the practice disciplinary process and the conversation between
parties on 25 January 2010 caused the Claimant’s resignation. In the
circumstances, any reasonable Tribunal would have seriously doubted the Claimant’s
case as to the cause of her resignation and could not have concluded as this
Tribunal did. In particular, the Tribunal had failed to appreciate the
significance of the falsified documents. Falsification was not, he submitted a
minor matter. Thresholds for belief required, in such circumstances to be
raised. Attempts to influence the outcome of a case were a very serious matter
indeed. He referred to Sheriff McColl’s sentencing statement in the case
of Procurator Fiscal v Jason Robinson, a case in which a manager
had falsified a document for the purposes of a claim before the Employment
Tribunal was prosecuted and was sent to prison for perverting the course of
justice, the sheriff commenting that it was a serious matter - to falsification
of documents for a case before the Employment Tribunal undermined the whole
system.
57.
Dr Connaughton then turned to his most substantial ground of appeal
which was one of bias. He referred to Porter v Magill [2002] 2AC 357. The Tribunal’s perversity, to which he had already referred, created an
impression of bias. Further, in the judgment, at paragraph 95, when
rejecting a submission that the Respondent’s failure to follow the disciplinary
rules was excusable given that he was following solicitor’s advice, they stated:
“The evidence (unsurprisingly) did not go so far as to say that
the solicitor concerned advised the respondent to cast his own rules to the
wind, but in any event it is no defence in law.”
58.
Dr Connaughton considered that the use of the word “unsurprisingly”,
being unexplained, gave, in the context, an impression of bias. He also
referred to the Tribunal stating that they accepted that Mrs McNulty was a
credible and reliable witness yet she, like the Claimant, had given evidence
that the falsified letters were genuine.
59.
Regarding the comments at the end of paragraph 104,
Dr Connaughton said that not only had the Tribunal made no findings in
fact about the matter referred to; there was no evidence about it. Mr Grant-Hutchison
did not suggest otherwise.
60.
Dr Connaughton referred to the judgment at paragraph 10 where,
having referred to certain difficulties amongst the staff the Tribunal stated:
“10. …the issues were trivial and would normally have been dealt
with by a competent Practice manager.”
He questioned the use of the word “competent” and submitted that
that amounted to an unjustified implied criticism of the Practice Manager.
61.
Dr Connaughton referred to paragraph 103 of the Tribunal’s
judgment where they state that they were not persuaded that he was a reliable
witness. However, the only illustration given was in relation to discrepancies
between his notes from the grievance meetings with Mrs McMenemy and
Ms Maxwell and their evidence in relation to those meetings. At
paragraphs 26 and 28, in their findings in fact, they had accepted that
the full version of what was said at those meetings were in e-mails that had
been sent to the Respondent’s solicitor. No account had been taken of that.
The paragraph contained sweeping generalisations and cast unjustified
aspersions. It finished by stating:
“The Tribunal considered that he was fortunate not to have been
subjected to professional cross examination.”
The Tribunal’s approach there was all indicative of bias.
62.
However, most significant, in Dr Connaughton’s submission was that
at the CMD on the 5th day of the hearing, it was plain that the
Employment Judge had come to a fixed view and was not open to argument. He
referred to the note of that CMD. He departed thinking he had obviously lost
the case. The Employment Judge was not, it seemed, going to listen to the
argument that the disciplinary rules were not part of the Claimant’s contract
and, further, that in following his solicitor’s advice (which had been to
follow the ACAS guidelines), he had not subjected the Claimant to unfairness.
Further, at that point, their evidence was not completed. His solicitor had
intended to call four further witnesses but she and he had felt pressured by
the Employment Judge not to do so. Only two further witnesses were called.
Dr Connaughton also referred to the Employment Judge having stated “we do
not care what happened on 21 October 2009” (see above). That was the
date on which an incident occurred between staff from which the grievances,
including the Claimant’s grievance, had arisen. That did not appear to be
consistent with the Tribunal’s approach in paragraph 96 which referred to
the trivial having become “pressing”. Further, in paragraph 4 of the
Employment Judge’s note of 21 August 2011, there was pre-judgement in
respect of this matter which, although, in that case, was in the Respondent’s
favour, indicated that as at the date of the case management discussion, the
Employment Judge had a closed mind.
63.
Separately, Dr Connaughton submitted that there had been an abuse
of process by the Claimant. He referred again to the falsified letters.
Founding on the cases of Shetland Sea Farms Ltd v Skuld and others
[2004] SLT 30, Arrow Nominees Inc and anr v Blackledge & ors
CHAN12000/0065/3, and Tods Murray v Arakin [2010] CSOH 90,
unfairness was demonstrated. The Claimant was guilty of an abuse of process
and the Tribunal should have realised that.
Submissions for the Claimant
64.
Mr Grant-Hutchison sought to submit that the falsified letters were
not crucial to the Tribunal’s decision. Further, it would have been a simple
matter to ascertain the truth regarding the date when the Claimant knew she was
going to be offered the job and her acceptance of it by referring to her new
employer. We were not entirely clear as to the purpose of that submission
since, given that the onus lay on the Claimant (this being a case of
constructive dismissal), it illustrated a failure on the part of the Claimant
to call what might have been supportive evidence rather than any failure on the
part of the Respondent.
65.
Mr Grant-Hutchison referred to Thomas v Thomas [1947]
SC (HL) 45 and Fuller v The London Borough of Brent [2011] IRLR 414. We should be cautious before interfering with decisions by a Tribunal in
the first instance on matters of credibility. If this Tribunal’s judgment was
read “in the round” it would be seen that they had understood the law and
applied it to the facts.
66.
Regarding perversity, Mr Grant-Hutchison referred to Yeboah v
Crofton [2002] IRLR 634. It was important not to give the Tribunal
judgment an over close reading. He then indicated that it was accepted that
the falsified letters were of some significance but, he asked, of what legal
significance were they? They were not, as a matter of law, of crucial importance.
Therefore there was no perversity. He then indicated that he accepted that the
letters were of importance and the use of fabricated evidence was to be
condemned. For perversity, however, they would need to have made some material
difference.
67.
Mr Grant-Hutchison then submitted that the Tribunal had found that
there were a series of material breaches of contract; the employee relied on
those material breaches. He referred, in particular, to flaws in the
disciplinary procedure and flaws in the appeal procedure. Regarding the
Tribunal’s criticisms of the handling of the Claimant’s grievance, he accepted
that there was a certain difficulty in respect that the Tribunal also accepted
that she had affirmed any breaches in respect of the handling of her grievance.
68.
Mr Grant-Hutchison referred to the Respondent’s evidence regarding
what was said on 25 January (as per paragraph 17 of the ET 3)
and submitted that that amounted to an admission that nothing further was going
to be done. The letters were not, accordingly, of crucial importance. The Claimant
would have resigned in any event.
69.
Turning to perversity, Mr Grant-Hutchison submitted that as a
generality, it was open to a court or Tribunal to find part of a witness’s
evidence credible/reliable but reject part. It was dangerous to speculate
about what other corroborative evidence might have been led. Credibility was
not to be tested in a vacuum. The Tribunal had found that the Respondent was
not a reliable witness. Regarding the Respondent’s submission that the
Tribunal failed to explain how, having concluded that the letters which the Claimant
insisted were genuine were falsified, they could find that the remainder of her
evidence was credible and reliable, submitted that the Tribunal recognised
there was a problem and dealt with it at paragraph 104. Regarding the
10 month delay before the Claimant sought to rely on any flaws in the
disciplinary process, Mr Grant-Hutchison referred to paragraph 95 of
the Tribunal’s judgment. There, the Tribunal accepted that there was some
substance to Ms Paton’s criticism but disposed of it in a way they were
entitled to do.
70.
Regarding the Respondent’s submission that the Tribunal’s findings and
conclusions as to the timing of the Claimant’s knowledge about the job offer
were inconsistent, Mr Grant-Hutchison sought to refute that submission.
He referred to paragraph 106 of the Tribunal’s judgment. It was not a
matter of semantics. The Tribunal were entitled to find as they did.
71.
Turning to the Respondent’s case of bias, Mr Grant-Hutchison
referred to the case of Horsfall v Calderdale and Huddersfield NHS
Foundation Trust [2011] UKEAT/0292/11. He referred to the
Employment Judge’s note of 21 August 2011 at paragraph 3 where
she said she would hear submissions in due course. That showed she had not
prejudged matters. Regarding the matter of witnesses as discussed at the CMD,
he said that the Employment Judges do, at a CMD discuss what witnesses are to
be called. Further, it was, he said, not unusual for a CMD to take place in
the course of a full hearing. The Employment Judge had to have regard to the
overriding objective. It was appropriate for her to give an indication of how
matters may be perceived. Ultimately, it had been for the Respondent to decide
what witnesses to call irrespective of what the Employment Judge said. There
was no appearance of bias.
72.
Under reference to the Employment Judge’s observations in
paragraph 4 of her note of 21 August 2011, Mr Grant-Hutchison
said he could see why it might appear to a lay representative that an
Employment Judge discharging their duties of proportionality too forcefully was
biased. However, it was different if it was a legal representative. A legal
representative knows that the decision on which witnesses to call is his or
hers.
73.
Mr Grant-Hutchison submitted that criticism was not to be inferred
from the use of the word “competent” in paragraph 10. He submitted that
there was nothing sinister about the use of the word “unsurprisingly”.
Regarding paragraph 103, whilst it was dangerous for the Tribunal to have
commented on the absence of evidence, the Respondent was legally represented
and if there was any evidence “out there”, his lawyer could have got it.
74.
So far as the witness from the CAB was concerned, Mr Grant-Hutchison
submitted that the Tribunal had complicated matters unnecessarily. Post
litem motam privilege was not dependent on the nature of the advisor. He
seemed, however, to accept that it was evident that the Tribunal had not given
any consideration to the issue of whether, if there was privilege, it had, in
the circumstances, been waived.
75.
Regarding the “last straw” Mr Grant-Hutchison submitted that the Respondent’s
breach continued until the date of the appeal hearing, at least.
76.
Finally, in response to a question from Mr Keenan, Mr Grant-Hutchison
accepted that, according to the job acceptance letters tendered by and on
behalf of the Claimant, when tendering her resignation, she appeared to
consider that there was a subsisting contract of employment – hence her
reference to working her period of notice.
Submissions by the Respondent in Response
77.
Dr Connaughton emphasised that the falsified letters were at the
heart of the case. The timing of the Claimant’s knowledge of the new job offer
was highly relevant. He added that the Tribunal’s references at
paragraph 112 to the Claimant being indignant and to her suffering
ill-health, which they appeared to find as having been causative of her
dismissal, were not breaches of contract. He pointed to the Employment Judge
in her note of 21 August 2011 having stated that Ms Paton was
“wrong then” in her submission that the Respondent’s failure to follow the
practice disciplinary process was not a material breach of contract. That
showed that she had a closed mind. Finally, so far as the e-mails sent to his
solicitor were concerned (which contained fuller details of his meetings with
Mrs McMenemy and Ms Maxwell) they were privileged. Further, no
attempt had been made by anyone to recover them.
Discussion and Decision
78.
We begin by considering the Respondent’s main ground of appeal relating
to what happened at the CMD on 17 March 2011, a ground which causes us considerable concern and which we consider to be well founded. We are
satisfied that the appeal has to succeed on that ground alone. That CMD was
fixed at the behest of the Employment Judge, prior to the conclusion of
evidence and for the express purpose of putting pressure on parties to settle
the case. That was inappropriate and was, in the circumstances, bound to lead
the fair minded and informed observer to conclude that there was a real
possibility that the Tribunal was biased in the sense that the outcome of the
case had been prejudged; the impression given was that the Tribunal had ceased
to be impartial and the Claimant was going to win: Porter v Magill.
79.
The Employment Judge’s approach was that the Respondent had made a fatal
concession in the course of his evidence. What she did and said indicated that
she had a closed mind about that. Although Ms Paton sought to point out
that it was not accepted that the practice disciplinary procedure was
contractual, the Employment Judge had formed the view (prior to hearing all the
evidence and the submissions) that Ms Paton was wrong about that. That is
apparent from the statement in her note for this Tribunal that “she was wrong
about that then”. She put pressure on Ms Paton to restrict the calling of
further witnesses and the tenor of her comment as recorded by agents at the
time “We don’t care what happened on 21 October” is, at the very least,
indicative of impatience and prejudgment as to whether or not, in the end of
the day, the facts of what happened that day would be important.
80.
There is no indication in the note of the CMD of the Employment Judge
having regard to the fact that even if the Respondent was in breach of contract
in relation to the disciplinary procedure used, the onus was still on the Claimant
to show that it was a fundamental breach entitling her to resign when she did
and that it was in fact the effective cause of her resignation. She indicates
in her note to this Tribunal that she did say that the Tribunal would still
have to decide whether the admitted breach was the reason for the Claimant’s
resignation (and we note from agents’ manuscript note that that is borne out).
However, the plain message as borne out by her stated reason for having the
CMD, by the note of it and as understood by the Respondent was that the Claimant
was very likely to succeed and that he ought, therefore, to curtail matters by
settling her claim. We are not at all surprised that, in all the
circumstances, the Respondent left the CMD feeling that he had already lost the
case. We can readily understand how and why a reasonable litigant would, in
the circumstances, have felt that.
81.
It is against the background of the events of that CMD that the
subsequent judgment of the Tribunal falls to be read. We also have a number of
observations to make regarding it.
82.
It is, we note, a judgment which contains some remarks that are
indicative of the Tribunal being influenced by sentiment rather than deciding
the case on the facts found. For example, they state that they lost sympathy
for the Respondent – whether or not an employer inspires a Tribunal’s sympathy
is not relevant; an unsympathetic employer may, nonetheless, act properly and
fairly. We would also refer to the Tribunal stating that the Respondent was
fortunate not to have been subjected to professional cross examination – the
only possible implication is that ‘he got off lightly’ and matters would have
turned out even worse for him if he had been cross examined in that manner. It
was, however, not appropriate for the Tribunal to speculate about what his
answers might have been had he been cross examined by someone else. The
unavoidable impression given by the Tribunal’s remark is that they were
inclined to make assumptions, against his interests, about how his evidence
might have sounded if that had happened.
83.
Some of the Tribunal’s remarks are indicative of their being influenced
by matters which were not, ultimately, relevant such as those which were
critical of the workplace ‘Rules’; the Respondent was not on trial for being a
strict employer and even if they did bear an implied criticism of the Claimant’s
work, there was no finding in fact that such criticism was unjustified.
84.
Further, insofar as that or the operation of the rules featured in the Claimant’s
grievance, the Tribunal accepted that she had affirmed the Respondent’s
handling of it. There are threads running throughout the Tribunal’s reasoning
of their being critical of and disturbed by the Respondent’s handling of the Claimant’s
grievance. That approach is, however, inconsistent with their acceptance that
the Claimant, by not appealing the outcome of her grievance, was to be taken to
have affirmed the Respondent’s handling of it. The Tribunal’s task was not to
consider whether, irrespective of that, they thought he had made a bad job of
it; this was not an investigation into how good or bad an employer was the Respondent.
85.
This being a claim for constructive dismissal, the onus was on the Claimant
to establish that the effective cause of her resignation was a material breach
of contract by the Respondent. The first difficulty for the Claimant is that
the Tribunal did not, as we have explained above, make any findings in fact as
to why the Claimant resigned. Whilst they concluded that the Respondent was in
material breach of contract in various respects, they did not find that those
breaches or any of them were the Claimant’s reasons for resigning. We accept,
further, that the Tribunal failed to address the fact that, on the face of
matters, even if the Respondent was in breach of contract regarding the
disciplinary procedure, the Claimant’s failure to resign in the month or so
that elapsed before her doing so was indicative of her having, at that stage,
affirmed the contract (Western Excavating v Sharp [1977] EWCA Civ 2). The Tribunal’s conclusion that the Claimant would have resigned even if
she had not been offered a new job was, as we have explained, reached on the
basis of matters in relation to which they made no findings in fact and,
furthermore, does not, of itself, establish why she resigned.
86.
We can see that it may be that the Tribunal became distracted by the
issues surrounding the authenticity of the letters and identification of the
date when the Claimant knew she was getting the Main Street job. They may thus
have taken their ‘eye off the ball’ on the issue of what, if anything, had she
proved as regards the reason for her resignation. That may be the explanation
for some of the problems which we have identified but it does not mean that the
Tribunal were entitled to conclude that the Claimant had established her case.
87.
Further, we accept the Respondent’s submission that the fabrication of
the letters was a serious matter and plainly called into the question the Claimant’s
credibility and reliability regarding the circumstances surrounding and reasons
for her resigning when she did. As above noted, it seems that it must be
assumed that the Tribunal accepted the Claimant’s denial of the Respondent’s
case that the reason for her resignation was the Main Street job but that was a
surprising conclusion in the circumstances and called for a clear explanation.
The Tribunal did not, we consider, provide one. We have in mind, in
particular, the need to explain clearly why the following circumstances did not
lead them to conclude that she could not be believed when she denied that she resigned
because of the Main Street job offer, namely (a) the fabrication of the letters
by the Claimant; (b) the denial of that fabrication by the Claimant and her
sister; (c) the Tribunal’s own acceptance that notwithstanding her denial of
having had any communication with anyone about the job before she received a
written offer (which was dated the same day as she resigned), the Claimant had
been given an informal indication about the job offer prior to actually
receiving it; (d) she had not resigned following on the outcome of the
disciplinary hearing; (e) she applied for the new job prior to her appeal
hearing i.e. at a time when, on the face of matters, she had affirmed any
breach of contract involved in the handling of the disciplinary hearing; (f) she
affirmed the Respondent’s handling of her grievance; (g) she made no mention of
any reasons for resigning in her letter of resignation; (h) she made no mention
of the breaches of contract referred to and relied on by the Tribunal in her
form ET1; and (i) in the course of her claim, varying dates had been advanced
as the date of her constructive dismissal. Nor did the Tribunal consider
whether the fact that the Claimant gave notice in her letter of resignation was
indicative of this being a case not of constructive dismissal but of a
straightforward resignation.
88.
Turning to the matter of the CAB witness, we are satisfied that the
Tribunal fell into error. Indeed, Mr Grant-Hutchison appeared to accept
that. Whilst we agree with him that the issue was not, as the Tribunal thought
it was, whether or not the CAB fell into the relevant category of advisor for
the information to attract privilege – the real question was whether or not post
litem motam privilege applied - the purpose for which Ms Paton wished
to call the witness and the question of waiver also arose. The CAB had already
disclosed, on behalf of the Claimant, a particular piece of information in
response to an Order for Additional Information. The plain inference was that
that information came from the Claimant and given that disclosure, it was, we
consider, legitimate for the Respondent to seek to adduce evidence to the
effect that she had indeed made that statement at that time. Given that
limited purpose, it seems doubtful that even post litem motam privilege
arose. Without the witness, the statement in the response form could not
become evidence in circumstances where the matter of the Claimant’s credibility
on the matter was very much a bone of contention between parties. It is also
difficult to see why the Claimant ought not, in the circumstances, to have been
regarded as having waived any right she had to withhold any evidence to the
effect that she had made that statement.
89.
We are, accordingly, persuaded that the Respondent’s case of perversity
is also made out. Put shortly, the Tribunal did not make sufficient findings
in fact to entitle them to conclude that the Claimant resigned because of a
material breach of contract by the Respondent and their conclusions were
influenced by irrelevant matters, as explained above. The acceptability of
their conclusions is also, inevitably, affected by the earlier apparent bias
shown at the CMD.
90.
Regarding the Respondent’s submissions on abuse of process, whilst we
accept that, in principle, a court action may be dismissed in such
circumstances at common law, we are not satisfied that it would have been
competent for the Tribunal to dismiss the Claimant’s claim purely on that basis
albeit that, as we have explained, we readily accept that falsification of what
were significant documents (we do not accept that they were not, as Mr Grant-Hutchison
suggested, material), is a serious matter and required to be given very careful
consideration by the Tribunal when reaching its conclusions on the Claimant’s
(and her sister’s) credibility and reliability as a whole.
Disposal
91.
We will pronounce an order upholding the appeal. We have also concluded
that we must dismiss the claim. Whilst the appeal has to be upheld on the bias
and prejudgment arguments alone, we conclude that, on the evidence referred to
and facts found, no Tribunal could have been satisfied as to the Claimant’s
reason for resigning let alone that any fundamental breach of contract by the
Respondent was the effective cause of her doing so.
