Mr A Griffiths v NHS Property Services Ltd: 1306368/2020
EMPLOYMENT TRIBUNALS
Case No 1306368/2020
Between
Mr A GriffithsClaimantNHS Property Services LtdRespondent
Before
Employment Judge PlattIn person for claimantMr Zovidavi (instructed by Counsel) for respondentDate 30 March 2022
JUDGMENT
The Claimant’s claim of constructive unfair dismissal is dismissed.
REASONS
[1]The Claimant was an Electrical Technician in the DLO team at the Respondent. He resigned giving one month’s notice on 4 May 2020. His last day of employment was 1 June 2020. The Claimant claimed constructive unfair dismissal pursuant to section 95(1)(c) of the Employment Rights Act 1996 because of what he says were a series of breaches to the implied term of trust and confidence culminating in a “last straw” causing him to resign. The Respondent’s position was that the Claimant was not entitled to treat himself as constructively dismissed. Claims and issues[2]The Claimant’s claim was brought pursuant to section 95(1)(c) of the Employment Rights Act 1996. The Claimant claimed that there had been a series of events which cumulatively amounted to a fundamental breach of the implied term of trust and confidence.[3]The Claimant asserted that events which occurred during the last week of April 2020 (when he was absent from work for reasons related to COVID-19) amounted to the “final straw” which caused him to resign on 4 May 2020. The Claimant submitted a detailed ET1 Form and some time was taken at the outset of the Hearing to identify precisely which circumstances the Claimant was relying on to found his claim of constructive dismissal. The Claimant clarified his position as follows (the “Alleged Breaches”):[1]That from 8 April 2020 it was business as usual at the Respondent and the Claimant and his colleagues were expected to carry out jobs of all priorities (P1-P5). If it was not against COVID rules staff in his zone were expected to do it. Staff in other zones were treated differently. He complained about this to Mrs Patel and HR on 8, 9 and 14 April 2020 but his concerns were not dealt with satisfactorily.[2]That the Claimant should have completed the 18th Edition of City and Guilds training by 1 January 2019 and didn’t complete it until September 2019. As a result, he stated that he would not know if he was breaking laws when carrying out his work.[3]That the Claimant had no yearly assessment/appraisal between April 2019 and April 2020.[4]That the Claimant’s concerns around the mixing of staff within his zone were ignored and when he raised this on 8, 9 and 14 April 2020 his concerns not addressed.[5]Training he was given in April 2020 regarding COVID-19 was inadequate.[6]That the Respondent used the opportunity of lockdown to catch up on mandatory emergency light testing. The Claimant did not feel this was appropriate.[7]That staff in other zones were not required to work in the same way as the Claimant and his colleagues in his zone. Other staff were only required to do priority work at level P1 and P2.[8]That the Claimant’s requests to purchase additional annual leave in April 2019 and April 2020 were refused.[9]That the Claimant took exception to how his line manager Mr Jackson treated him during the last week of April 2020 when he was absent for reasons related to COVID-19. He felt pressurised to return to work and felt harassed by him. 4. The matters for the Tribunal to decide were: a) What was the most recent act (or omission) on the part of the Respondent which the Claimant says caused, or triggered, his resignation? b) Did the Claimant affirm the contract since that act? c) If not, was that act (or omission) by itself a repudiatory breach of contract? d) If not, was it part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a fundamental breach of contract? e) Did the Claimant resign in response (or partly in response) to that breach? Procedure 5. At the outset of the Hearing the Tribunal spent some time clarifying the Claimant’s claim. The Alleged Breaches set out above were identified and both parties agreed that these were the matters on which the Tribunal would need to find facts. 6. The Tribunal clarified the start date of the Claimant’s employment. The Claimant’s ET1 Form stated that his start date was 8 February 2016. The Respondent’s position was that his start date was 5 October 2016 and that he was previously engaged via an agency. The Claimant accepted that his employment commenced on 5 October 2016 and this was not a matter the Tribunal needed to determine. 7. The Tribunal was provided with a Bundle of documents comprising 323 pages. The Tribunal asked the parties to confirm the key documents which it needed to consider (in addition to the Pleadings) and the following were identified: pages 106 – 168, pages 213 – 224, pages 229 - 261, pages 262 – 276, page 310, page 203 – 204 and pages 277 – 279. Two further documents were referred to during the Hearing in relation to City and Guilds 18th Edition training. 8. The Tribunal heard witness evidence from the Claimant and two witnesses for the Respondent, Mr Jackson and Mrs Patel. Both parties delivered oral submissions for the Tribunal to consider. Findings of fact 9. The Claimant was employed an Electrical Technician in the DLO team at the Respondent. His employment commenced on 5 October 2016. He was based at the Aston Pride Health centre until mid-March 2020. He resigned giving one month’s notice on 4 May 2020. His last day of employment was 1 June 2020. His letter of resignation did not set out the reasons why he had decided to resign. He did not complete an exit interview. He did not raise a grievance during or after his employment.
Findings of fact
[10]At the relevant time the Claimant worked within a zone with six other colleagues. The jobs that he and his colleagues were required to undertake were given priorities from P1 – P5, P1 requiring the shortest response time (within two hours) and P5 requiring a less immediate response (within two weeks).[11]On 18 March 2020 the Aston Pride Health Centre was converted to a COVID-19 testing site. The Claimant and his zone were relocated to St Chads Court. Initially at the start of the pandemic the staff in the Claimant’s zone were required to undertake P1 and P2 jobs and to use home as their base, i.e. they would go straight from home to their first job in the morning and then return home once the job was finished and wait to be called to another job. The Claimant and his colleagues were all classed as Key Workers because they were responsible for maintaining a number of NHS facilities which were still being used during the pandemic.[12]From 8 April 2020 the Claimant’s working arrangements changed and the Claimant’s zone were required to carry out jobs of all priorities (P1 - P5) and other maintenance work if it was safe to do so. This change was introduced when a new manager Owen McDaid took over the management of the team from Mrs Patel. The Claimant was unhappy about these changes.[13]On 8 April 2020 the Claimant called Mrs Patel to complain that he was being asked to carry out what he regarded as non-essential tasks. On the same day COVID-19 training was given to a large number of staff. This was delivered electronically using the platform Webex. The Claimant’s evidence, which the Tribunal accepted, was that he viewed this training on his mobile phone whilst in his vehicle at the side of the road. He struggled to access it (and therefore missed around 25 minutes of the training) and to engage with it. He was unhappy with the format of the training and found it unclear.[14]The Claimant’s evidence was that he raised concerns about the work he was being asked to carry out on 8, 9 and 14 April 2020. The Tribunal accepts that he did raise concerns and as a result on 14 April 2020 Jenny Black from HR emailed the Claimant with some advice and attached a number of resources regarding COVID-19 for the Claimant to look at because he was unable to access the intranet.[15]On 15 April 2020 face to face COVID-19 training was delivered by Mr Jackson (the Claimant’s Line Manager) at St Chad’s Court and the Claimant attended that training. It was agreed that training about how to use PPE was given. There was a dispute between the parties as to whether the detailed COVID-19 presentation shown at pages 116 – 172 of the Bundle had been made available in hard copy to the Claimant at the training session. Mr Jackson’s evidence was that he gave a copy of this presentation to his team and intended that they would keep it in their vehicles. The Claimant’s evidence was that he had only seen the presentation during the course of this litigation and had not seen it at the time. He stated that he was not given a copy of it but was given a copy of 4/5 pages of flowcharts. The Claimant did not raise any concerns or complaints following this training. The Tribunal finds that the Claimant did receive a hard copy of the training materials. In any event, he received an electronic copy (which he could reasonably have been expected to access) and attended in-person training.[16]On 27 April 2020 the Claimant telephoned Mr Jackson to tell him that he was self-isolating due to COVID-19. His lodger was showing symptoms. The Claimant was not showing symptoms. The Respondent had a process for staff in relation to COVID-19 testing which allowed them priority access at a testing site. This process was shown at page 204 of the Bundle. Mr Jackson’s evidence was that he advised the Claimant of the process and that his lodger should arrange to get tested. If her test result was negative, then the Claimant could return to work. The Claimant accepted that he had fallen out with his lodger and there were difficulties communicating. The Claimant had tried to order a home test so she would not need to leave the house. That proved impossible. The Claimant took his lodger to Edgbaston cricket ground for a drive-through test but was turned away because he did not have the relevant email confirmation.[17]The following day the Claimant attended Dudley Road hospital and he and his lodger were tested for COVID-19. His lodger’s test result was negative. The Claimant’s result was inconclusive. The Claimant explained that he had dropped the swab onto the floor of his car.[18]The Claimant’s position is that he received numerous phone calls from Mr Jackson during the week commencing 27 April 2020. He felt he was being crossexamined, being treated unfairly and being badgered by Mr Jackson. The Claimant thought it was because he had raised concerns on 14 April 2020, although he did not present evidence which supported that view. The Claimant’s evidence was that five phone calls took place on 27 April 2020, and one phone call took place on each subsequent day that week. The phone calls were all related to COVID-19 testing, difficulties the Claimant and his lodger were having in relation to testing and the implications for the Claimant attending work.[19]When the Claimant returned to work on 4 May 2020 he resigned. The Claimant’s evidence was that Mr Jackson had harassed him and pressured him to take his lodger for a COVID-19 test. His evidence was that his lodger had been very upset by this. Mr Jackson’s evidence was that he was motivated by concern for the lodger and his secondary concern was facilitating the Claimant’s return to work. Mr Jackson explained that there had been a number of conversations with the Claimant because he had found it difficult to discuss matters with the Claimant. Mr Jackson felt the Claimant was not listening to him. The Tribunal accepts the Claimant’s evidence about the number of phone calls which took place but is unable to find that their content was harassing, unfair or inappropriate. The Claimant did not present sufficient evidence to show that Mr Jackson behaved in a manner which was harassing in relation to the circumstances during the last week of April 2020 and did not provide any specific details as to why he found the phone calls harassing.[20]The Claimant handed in his resignation by giving Mr Jackson a letter on 4 May 2020. He gave one-months’ notice as set out in his contract of employment. The letter did not set out the reasons for the Claimant’s resignation. The Claimant accepted in his evidence that he did not mention feeling unsafe either in his resignation letter or after he had resigned. The Claimant’s evidence was that he gave one-months’ notice under his contract because he felt that was the right thing to do. His evidence was that because he did not have to see or speak to the more senior managers, including Mr McDaid and Mrs Patel, and could deal with Mr Jackson on the phone, this made it more palatable to work out his notice period.[21]Although the Claimant’s evidence was that he had a number of concerns about safety he continued to work during his notice period in the same way as he had before. He did not work under protest and did not raise any complaints or grievances. His employment terminated on 1 June 2020. The Claimant was offered the opportunity to have an exit interview and provided with a questionnaire but declined to complete it. Mr Jackson completed a Leaver’s Form which summarised the reasons for the Claimant’s resignation as he understood them. These related to the refusal of his request to purchase extra holidays and being asked questions about COVID-19 testing whilst he was off. Mr Jackson did not note any concerns about safety.[22]The Tribunal makes the findings of fact below in relation to each of the Alleged Breaches raised by the Claimant. Alleged Breach 1: From 8 April 2020 the Claimant was working his normal contractual hours of 8am – 4pm doing jobs across priority levels P1 – P5. He raised concerns about this approach on 8, 9 and 14 April 2020 over the telephone. The Claimant was told on 14 April 2020 that unless he or members of his household had symptoms of COVID-19 then he should perform his duty of work. He was told to follow the guidelines and take the necessary precautions. In relation to his view that jobs were unnecessary, he was informed that if it was part of his job role then it was a reasonable management instruction for him to perform the tasks. Alleged Breach 2: The Claimant was booked onto a course to complete the 18th Edition of City and Guilds training on 19 August 2019. He completed the threeday training course. The Tribunal finds that there was no legal requirement that the Claimant complete this training by 1 January 2019. Mr Jackson’s evidence was that he checked with the Respondent’s Responsible Person as to what the training requirements were. He started to look into this on 20 February 2019. The Tribunal accepts Mr Jackson’s evidence. He took reasonable steps to ensure the training was completed in an appropriate timescale. The Claimant’s evidence was that there was a mandatory deadline of 1 January 2019 and that it was in breach of the law that this had not taken place. The Claimant was mistaken in that belief. The Claimant did not state to the Respondent at the time that he thought legal requirements were being breached. Alleged Breach 3: The Claimant did not have a yearly assessment between April 2019 – 2020. The Respondent’s position was that there was no formal appraisal process for anyone in the Claimant’s zone. The Claimant never complained about this during his employment. The Claimant did not challenge this evidence. The Tribunal accepts that no-one in the Claimant’s zone had an appraisal during April 2019 – April 2020. Alleged Breach 4: The Claimant raised concerns on 8, 9 and 14 April 2020 including in relation to mixing. The Claimant’s view was that the Respondent did not take sufficient steps to reduce mixing because mixing should not have been taking place at all. However, there were seven people in the Claimant’s zone (including the Claimant) and he was a Key Worker. The Respondent’s evidence was that generally speaking staff worked in three pairs. The Tribunal finds that these concerns were adequately addressed by the training that took place on 8 and 15 April 2020, carrying out risk assessments and the provision of PPE. The Claimant did not raise any concerns after the training on 15 April 2020. Alleged Breach 5: The Claimant’s view was that the training he was given was inadequate. The Tribunal finds that he did listen to a Webex training session whilst he was in his vehicle using his mobile phone on 8 April 2020. He missed about 25 minutes of the training because he had problems accessing it. However, he was also sent materials on 14 April 2020 as attachments to an email from Jenny Black in HR and attended a training session in-person on 15 April 2020 when he was given materials by Mr Jackson. This training was given in-person in small socially distanced groups. The Claimant’s evidence was that he never clicked on the attachments to the email nor the link to guidance contained in the email. He had sufficient opportunity to do so and to ask questions about anything he was unsure about, including during the in-person training. The Tribunal finds that he did not do so. The Claimant’s evidence was that the first time he had seen the detailed presentation was during this litigation. Mr Jackson’s evidence was that he had handed out hard-copy documents to each person in the training on 15 April 2020. The Tribunal preferred Mr Jackson’s evidence on this point. Alleged Breach 6: The Tribunal accepted the Respondent’s evidence that mandatory emergency light testing needed to continue to ensure buildings remained safe and to avoid a back-log of work building up. The Claimant did not agree that he should be required to undertake work that was not deemed urgent before the pandemic and to catch up on work. He also objected to paperwork being changed at a time when in his view people should not have been mixing unnecessarily and travelling around. He felt the Respondent was asking his team to do work “just for the sake of it”. The Tribunal accepts the Respondent’s evidence that the Claimant was required to do work which was appropriate under his contract of employment. He was a Key Worker and reasonable steps were taken to ensure that he could undertake his work safely. Alleged Breach 7: The Claimant’s position was that his zone was required to do work that other zones were not required to do. He accepted in his evidence that his view was based on anecdotal evidence and that he did not know in any detail what was or was not required of others in different zones. The Respondent’s position is that the Claimant was given reasonable management instructions and was able to safely complete his work. The Tribunal accepts the Respondent’s position. Alleged Breach 8: The Respondent accepted that the Claimant’s applications to purchase additional annual leave in 2019 and 2020 were both rejected. The Claimant felt this was unfair but did accept in evidence that the Respondent had reasonable grounds for rejecting his applications and he did not have a contractual right to have his requests granted. The Tribunal accepts the Respondent’s evidence that there was a high level of demand in April 2019 and this was the reason why the request was refused. In 2020 the Respondent’s evidence was that four out of nine engineers had applied to purchase additional leave at the same time. All four requests were rejected. Mrs Patel wrote to the Claimant on 2 January 2020 to explain the reasons why. Mrs Patel also discussed the matter with the Claimant. She suggested that the Claimant could apply after 1 April 2020 when work from Mitie was being in-sourced and the team would have more resource. The Claimant did not make a further application prior to the termination of his employment. Alleged Breach 9: The Claimant was dissatisfied with how Mr Jackson treated him during the last week of April 2020 when his lodger was displaying symptoms of COVID-19. There was confusion on the Claimant’s part about what he needed to do and some difficulty obtaining a test for his lodger. At the time the process was relatively new and there was much anxiety about COVID-19. The Claimant did not present evidence which demonstrated that Mr Jackson acted in a way that was harassing or otherwise unreasonable or inappropriate. The Claimant did not raise any concerns about this to Mr Jackson or HR. The Tribunal accepts that Mr Jackson was attempting to assist the Claimant’s lodger to obtain a COVID-19 test. Mr Jackson also offered help to the Claimant in case he needed anything. Mr Jackson was also trying to understand the Claimant’s situation and its impact on his ability to attend work.
Law
[23]Section 95(1)(c) of the Employment Rights Act 1996 sets out that an employee will be dismissed by an employer if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.[24]The law in relation to constructive dismissal and the fundamental questions which must be considered have been settled since the case of Western Excavating Ltd v Sharp [1978] 1 All ER 713. They are as follows:a. Did the Respondent breach a fundamental term of the contract?b. Did the Claimant resign in response to the breach?c. Did the Claimant delay too long before resigning, thereby affirming the contract?[25]The Claimant relies on fundamental breach of the implied term of trust and confidence. The trust and confidence term was set out in Mahmud v Bank of Credit and Commerce International SA [1997] IRLR 462 as follows: “The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.[26]More recent case law has clarified that it is not necessary for the employer to act in a way which is both calculated and likely to destroy the relationship of trust and confidence, instead either requirement need only be satisfied – see Baldwin v Brighton & Hove City Council [2007] IRLR 232.[27]Where there is a series of acts, the question for the Tribunal will be “does the cumulative series of acts taken together amount to a breach of the implied term?” (Lewis v Motorworld Garages Ltd [1985] IRLR 465, per Glidewell LJ).[28]In cases where a series of acts is relied upon the Tribunal must consider the “last straw” which caused the Claimant to resign. The last straw must not be an innocuous act – it must be something which goes towards the breach of the implied term (see London Borough of Waltham Forest v Omilaju [2005] ICR 481).[29]Tying together the case law identified above the Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 clarified the approach to be taken by the Tribunal as follows: In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions: (1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? (2)Has he or she affirmed the contract since that act? (3) If not, was that act (or omission) by itself a repudiatory breach of contract? (4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation….) (5) Did the employee resign in response (or partly in response) to that breach?
Conclusions
[30]In this case the Claimant asserts that the Respondent breached the implied term of trust and confidence by the cumulative effect of its conduct as referred to in the Alleged Breaches. He relies on Alleged Breach 9 as the “last straw”.[31]Following the approach in Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 the Tribunal has asked itself the questions referred to in that decision.[32]The Claimant asserts that Alleged Breach 9 (events during the last week of April 2020 which he found to be harassing) was the “last straw” which caused him to resign on 4 May 2020. The Claimant continued to work normally under his contract of employment throughout his one-month notice period.[33]Section 95(1)(c) of the Employment Rights Act 1996 permits the Claimant to resign with or without notice. The Claimant gave one-months’ notice. The reasons for the Claimant’s resignation were not made clear at the time. The Claimant’s evidence was that he found it possible to continue working because he did not have to see Mr Jackson or Mrs Patel. He did not appear to be concerned about the various other matters referred to in the Alleged Breaches most of which relate to issues about safety because of COVID-19. He did not raise specific concerns, he did not work under protest, he conducted himself as he had done before and performed his usual tasks. By deciding to carry on working throughout his notice period performing the same tasks in the same way without objection, the Tribunal finds that the Claimant affirmed the contract.[34]However, even if the Claimant had not affirmed his contract, the Tribunal finds that the conduct of Mr Jackson during the last week of April 2020 did not amount to a repudiatory breach of contract. Mr Jackson was seeking to assist the Claimant to obtain a COVID-19 test for his lodger and to find out the reasons why the Claimant was unable to attend work. The Tribunal concludes that these were reasonable steps for Mr Jackson to have taken. The Claimant did not present evidence which demonstrated, on the balance of probabilities, that Mr Jackson had harassed him or otherwise treated him inappropriately. Applying an objective test the Tribunal concludes that Mr Jackson’s conduct did not amount to harassing behaviour and was not a repudiatory breach of contract.[35]The Tribunal, following the approach set out in Kaur, has considered whether Mr Jackson’s conduct during the last week of April 2020 was nevertheless part of a course of conduct comprising several acts or omissions which viewed cumulatively breached the Malik implied term.[36]Having considered the Alleged Breaches cumulatively and applying an objective test, the Tribunal finds that they do not amount to conduct calculated or likely to destroy or seriously damage the relationship of confidence and trust in the employment relationship. The Tribunal’s reasons for this are as follows: Alleged Breach 1: The Respondent gave the Claimant reasonable management instructions under his contract of employment. He was a Key Worker. The Respondent provided adequate training, PPE, conducted risk assessments and provided a safe working environment. Alleged Breach 2: There was no breach of any legal requirement in relation to the 18th edition City and Guilds Training. The Respondent made arrangements for the Claimant to complete the training in a reasonable timeframe. Alleged Breach 3: Neither the Claimant nor his colleagues in his zone had a yearly assessment during 2019 – 2020. The Claimant had no contractual right to an assessment and did not complain about not having an assessment. The Claimant was not treated any differently to his colleagues. Alleged Breach 4: In the Tribunal’s view the Respondent took adequate steps to protect the Claimant’s safety in relation to mixing. Alleged Breach 5: The Respondent provided training to the Claimant in relation to COVID-19. This training was adequate and the Claimant was provided with the materials required. Alleged Breach 6: The Respondent gave the Claimant reasonable management instructions in relation to emergency light testing and took adequate steps to protect his safety while undertaking his work. Alleged Breach 7: The Respondent gave the Claimant and those in his zone reasonable management instructions to complete work and took adequate steps to protect their safety. Alleged Breach 8: The Respondent rejected the Claimant’s applications to purchase additional holidays in 2019 and 2020 for legitimate business reasons. All other applications from the Claimant’s zone were also rejected. Alleged Breach 9: The Claimant did not demonstrate that Mr Jackson harassed or behaved inappropriately towards him during the last week of April 2020 in relation to COVID-19 testing.[37]It is not clear what the Claimant’s reason for resigning was but given the Tribunal’s findings it is unnecessary to determine the reason for the Claimant’s resignation. The Claimant was not entitled to resign in response to the Alleged Breaches because cumulatively, and viewed objectively, they do not amount to conduct calculated or likely to destroy or seriously damage trust and confidence in the employment relationship. Therefore, the Claimant’s claim of constructive dismissal is dismissed.