Mr A Keegan v Sheffield Teaching Hospitals Trust: 1807171/2017
EMPLOYMENT TRIBUNALS
Case No 1807171/2017, 1800990/2017
Between
Mr A KeeganClaimantSheffield Teaching Hospitals TrustRespondent
Before
Employment Judge RostantMr A Webster (instructed by Counsel) for respondentDate 18 June 2018
REASONS
[1]By a claim presented on 11th December 2017, the claimant brought complaints of unfair dismissal. The respondent defended the claim. The claimant had been dismissed from his employment on 7 March 2017 and presented a complaint to the Tribunal of unfair dismissal (claim number 1800990/2017). At that same time, he appealed his dismissal. The claimant's appeal was successful and he was reinstated and the claimant withdrew claim 1800990/2017 and that was dismissed. On 1st November 2017 the claimant resigned his employment and the second claim form raises, as grounds of resignation, a large number of matters which are set out below.[2]This claim first came before me at a preliminary hearing on 1st February 2017 when the claimant was in person and the respondent was represented by Mr Sweeney of counsel. At that preliminary hearing I allowed an application to amend to include four matters of complaint which the claimant asserted arose following the first claim form but which were not properly identified in the second claim form and which the claimant wished to rely on as breaches of contract. They appear as points 10, 11, 12 and 13 in the list below.[3]Also at that preliminary hearing some preliminary issues were identified and were set down to be determined at a further open preliminary hearing.[4]That further open preliminary hearing came before Employment Judge Davies on 28th February and at that hearing the claimant confirmed that his complaints as encompassed by claim number 1807171/2017 (this claim) did not include a complaint of automatic unfair dismissal for making protected disclosures, whatever might have seemed the case from the claim form itself. However, the claimant did make it clear that he was complaining of constructive unfair dismissal. Employment Judge Davies identified the issues raised by the claim of unfair dismissal. They were as follows:(1) Did the respondent breach the implied term of mutual trust and confidence by committing the acts complained of in box 8.2 of the ET1 claim form, and by those acts set out at paragraph 10 of my Case Management Order of 1st February, and by the further act, permitted to be included by Judge Davies, of disclosing the claimant's medical and other personal information to colleagues in the disciplinary pack circulated as part of the disciplinary proceedings against the claimant and others which resulted in the claimant's dismissal in March 2017. If those things did happen, the question was whether they amounted to a repudiatory breach of the claimant's contract of employment.(2) If so, did the claimant resign in response and without waiving any breaches?(3) If so, what was the reason for that fundamental breach of the implied term of trust and confidence? Although paragraphs 4.5 and 4.6 deal with the hypothetical situation of the respondent advancing a potentially fair reason for it breaching the term of mutual trust and confidence, in the event that the respondent did not advance a fair reason it was clear that if I concluded that there had been a constructive dismissal I was bound to conclude that it was unfair.[5]At the outset of the hearing on 12th June 2018 the parties agreed that the 13 matters said to comprise the conduct on the part of the respondent breaching the term of mutual trust and confidence were as follows:6.1 Bringing a disciplinary case against the claimant in December 2015.6.2 Refusing the claimant an orthopaedic chair.6.3 Never fully investigating the claimant's grievance.6.4 Mr Goodison, the claimant's line manager, lying to the disciplinary hearing in relation to the question of the orthopaedic chair.6.5 Dismissing the claimant when he did not attend the disciplinary meeting.6.6 Failing to comply with the ACAS Code of Conduct in that the disciplinary procedure was delayed and minutes of meetings were not supplied.6.7 Disclosing the claimant’s personal details, by way of his address and the notes of a back to work meeting discussing his health, to other colleagues involved in disciplinary proceedings.6.8 Delaying the claimant's appeal against dismissal.6.9 Not disciplining any member of the management of Hotel Services.6.10 Failing, contrary to the instructions of the appeal panel, to investigate the claimant's grievance, and failing to investigate his complaints of bullying against Mr Burgin, raised during the disciplinary process.6.11 Requiring the claimant to return to work after reinstatement, working under Mr Goodison.6.12 Requiring the claimant to return to work after reinstatement under Mr O’Regan.6.13 Requiring the claimant to return to work in a Trust where the Human Resources Department personnel had not changed.[6]In accordance with orders made by Employment Judge Davies, the parties prepared and exchanged witness statements. For the claimant I heard evidence from the claimant himself and for the respondent I heard evidence from Miss Janette Marvin, Human Resources Business Partner, and Mr Christopher Morley, now Chief Nurse, Rotherham NHS Foundation Trust but in the relevant time Deputy Chief Nurse for the respondent Trust. I also had an agreed file of documents in three volumes running to 1,186 pages.
The Law
[7]This is claim brought pursuant to section 94 of the Employment Rights Act 1996 which gives to employees the right to complain of unfair dismissal. The burden rests upon the claimant to show that he was dismissed, and section 95(1)(c) upon which the claimant relies provides that a dismissal occurs where the employee terminates the contract under which he is employed in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. Should I conclude that such a dismissal had taken place, the burden then rests on the respondent, pursuant to the provisions of section 98(1), to show a reason for that dismissal and to show that that reason is one of the potentially fair reasons set out in that section.[8]I will deal with the relevant case law pertaining to claims of constructive dismissal in the body of my reasons. The Uncontroversial Facts[9]The claimant was a member of the respondent’s security team based at the Trust’s Northern General Hospital site and was appointed on 2 February 2010.[10]In that capacity, he worked as part of the Hotel Services Directorate which was headed by Mr Kevin O’Regan. The claimant worked in the Security Department, which was headed by Mr Goodison, and Mr Goodison reports to Mr O’Regan. He was employed at the Northern General Hospital[11]In or around December 2015, the claimant was given a final written warning, having been put into a disciplinary process by Mr Goodison on the grounds that Mr Goodison suspected that the claimant had been mis-recording his time. The claimant conceded that the facts of the charge against him were true and accepted a final written warning without appeal.[12]The claimant has a bad back and, in or around April 2016, discussions began about the possibility of obtaining an orthopaedic chair for him.[13]In October 2016, the claimant and others in the Security Department, both at the Northern General Hospital and at the respondent’s Central site at the Hallamshire Hospital, submitted grievances. The northern and central grievances were separate.[14]The grievances were sent initially to the trade union and I accept from the claimant that at least the Northern General grievance, which the claimant had contributed to, was sent to the respondent by the trade union without further checking with the employees concerned.[15]The respondent Trust observed that the grievance raised a large number of issues and involved a potentially complex and lengthy investigation, and a decision was made to appoint an independent consultant, a former employee of the respondent’s Human Resources department, a Mr G Burgin, to carry out the investigation.[16]The grievance was unsigned and Mr Burgin began an initial investigation into the grievance. Before that investigation could gather very much steam, the grievance was withdrawn by all of the members of the Northern security staff.[17]Mr Burgin’s investigation report drew attention to the fact that the respondent’s own disciplinary processes identified as a possible disciplinary matter the bringing of a malicious or untrue grievance.[18]There then commenced a disciplinary investigation into the possibility that the claimant and others had been involved in bringing a malicious grievance against the respondent. That investigation was essentially carried out by Ms Lawford, a manager in Hotel Services, although she had support and assistance from Mr Burgin, particularly in the earlier parts of the process. Ms Lawford was also supported by Ms Wardle of the Human Resources department.[19]The investigation eventually concluded and Ms Lawford recommended that the claimant should face a disciplinary hearing.[20]The claimant was invited to a disciplinary hearing on 7th March, the disciplinary officer being Mr O’Regan. The claimant asked that the hearing not proceed because of his back problems, but Mr O’Regan decided to go ahead with the disciplinary hearing and as a result the claimant was dismissed.[21]The dismissal was communicated to the claimant in mid-March and he then appealed. His appeal was acknowledged and eventually the claimant was written to in late June (27th June) by Ms Marvin of Human Resources inviting him to an appeal hearing to be heard on 11th July.[22]The claimant asked that the hearing be postponed in order to give him adequate time to prepare, and it was agreed that the hearing be postponed and it was then re-set for 8th September.[23]After a short further adjournment, the appeal hearing went ahead and was dealt with by Mr Morley and Mr Monk. The claimant’s appeal succeeded, Mr Morley and Mr Monk having concluded that Mr O’Regan had been wrong to proceed in the claimant's absence without at least having read the consultant report that the claimant had sent to the respondent supporting his application for an adjournment. Mr Morley and Mr Monk further took the view that although the initial grievance had been withdrawn, a conclusion as to whether or not the claimant and others had been involved in bringing a malicious grievance could not properly be reached unless there had been a full and adequate investigation of the grievance itself. Since it was evident to them that that had not happened, it was felt that the decision that the claimant was engaged in a malicious grievance was unsafe.[24]Although not necessary for the determination of the appeal, Mr Morley and Mr Monk also took the view that it would improve employment relations at the respondent Trust if the grievance itself was properly investigated. At the heart of the grievance were a number of health and safety concerns raised by the security officers and it was decided that those matters should be investigated by an outside investigator. A firm of solicitors, DAC Beechcrofts, were appointed to conduct that investigation. That decision was communicated to the claimant, and Ms Marvin then took over to finalise the process of returning the claimant to work.[25]As part of the decision to overturn the initial disciplinary process the claimant had been reinstated and had his back pay paid to him. The question that remained to be determined was in what circumstances the claimant would return to work. Following two meetings with Ms Marvin in the ensuing weeks, the claimant resigned on 1st November and brought a claim of constructive unfair dismissal.[26]This was not the first claim that the claimant had brought and reference is made to the procedural history of this case set out earlier in my judgment. My conclusions on the areas of disputed fact and law[27]At the end of the second day of this hearing, by which time I had heard the evidence of the three witnesses, I adjourned to allow in particular Mr Pagdin enough time to draft a closing submission, having explained to him carefully what was required. At the outset of the third day Mr Pagdin and Mr Webster both made closing submissions. In Mr Webster’s case that was an oral closing submission; in Mr Pagdin’s, helpfully he had written down what he wanted to say and handed it up. In setting out my conclusions below I have had regard to everything that those two gentlemen have said, and even though I may not necessary refer to all of their submissions in describing my conclusions it is not to be taken that I have not fully taken them into account as far as was necessary.[28]Mr Webster’s submission essentially fell into two parts. In the first part he outlined what he regarded to be the helpful case law, making references to the cases of Malik v BCC 1997 ICR 606 ; Omilaju v Waltham Forest Borough Council 2005 ICR 481; Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978; and the only case that I had not come across, Assamoi v Spirit Pubs Limited UKEAT/0050/11/LA. It is my view that the decision in Assamoi goes no further than saying that when identifying a possible breach of contract, care must be taken to identify at what point that breach of contract crystallises as a breach and it observes that acts on the part of for example a manager may be at the outset insufficient on their own to amount to a breach of contract but if allowed to carry on uncorrected may eventually turn into such a breach. With due respect to Mr Webster, I did not derive a great deal of help from the Assamoi judgment other than to take care where I thought it necessary to establish in my own mind at what point any act being relied on by the claimant may have crystallised as a breach.[29]Mr Pagdin helpfully confirmed that he accepted that Mr Keegan’s case was a last straw case and he, like Mr Webster, spent much of his submission traversing the various factual matters that I had heard. In Mr Webster’s case the purpose of that exercise was to challenge the suggestion that the respondent was at fault in respect of any of the matters complained of, but to say that where there might be fault it did not amount to sufficient to justify the label “fundamental breach”, and even if it did it had been affirmed by the claimant’s later actions and could not be relied on. Unsurprisingly Mr Pagdin’s submissions were to the contrary and pointed at where he took the view that the respondent had acted in such as to fatally undermine the appropriate relationship of trust and confidence. The last straw[30]I made it plain to the parties that since this was a last straw case I would approach it on the basis proposed by the Court of Appeal in Kaur, and in particular by asking myself the questions set out in paragraph 55 of Lord Justice Underhill’s judgment, and of course pay attention where required in that exercise to the earlier judgment in the Court of Appeal in Omilaju to which Kaur refers.[31]Lord Justice Underhill starts his list of five questions with the question as to what was the last straw, and I too will start there since to my mind the way in which Kaur and Omilaju are decided, if there is no last straw there is no real necessity to examine in detail whether previous matters relied on amount to a breach.[32]The burden rests upon the claimant to prove that the last straw, the thing that, in Lord Justice Underhill’s judgment is said to have caused or triggered the resignation, is capable of contributing to a course of conduct amounting to a fundamental breach. Omilaju makes it clear that if it does not then “there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect” (Olimaju paragraph 21 page 489). That is because, as that passage goes on to point out, if the last act in innocuous it cannot be relied on to invoke the last straw doctrine.[33]To my mind, this places an unambiguous prior burden on the claimant to identify and then prove the facts of the act said to be the last straw. In this case that has proved surprisingly hard to do.[34]By the time the claimant's appeal was heard in September 2017, he already had a new job. At the preliminary hearing before me on 1st February, the claimant told me that he had not accepted the offer of redeployment because he did not want to let his new employer down; in other words, far from identifying as a tipping point some adverse act on the part of the respondent, he gave as a reason for his resignation a desire to be loyal to a new employer.[35]From an early stage in the final hearing I made it clear to Mr Pagdin and to the claimant that since this was a last straw case, a last straw needed to be identified and evidence about it heard. In my initial discussions at the outset of the case when the issues were being defined and the list of alleged acts comprising the breach being agreed, I was told that the last straw was cumulative stress, a loss of trust in the Human Resources Department and the embarrassment of returning to work. I would observe immediately that none of those are acts by the respondent although they may be states of mind caused by the respondent’s acts.[36]In cross examination, the claimant referred to his lack of trust in the Human Resources department as significantly contributing to his decision to resign. In reexamination the claimant said that he had resigned because he had had a conversation with his family who were adamant that he ought not to return to work. In closing submissions Mr Pagdin said that the claimant’s concern was that an outside agency (DAC Beechcroft) had been appointed to investigate the grievance which he and his colleagues had made back in October 2016; furthermore, Mr Pagdin said, the claimant had been troubled by the prospect that the investigation of the grievance might lead to further disciplinary action, either against him (a prospect which had been explicitly ruled out by Ms Marvin in her witness statement) or against Mr O’Regan (presumably if part of the grievance was upheld), in which latter case he might have to give evidence.[37]Neither of those matters appeared in the list of breaches of contract or featured in the claimant's witness statement or in his evidence in cross examination, and for that reason Mr Webster was never able to challenge them by cross examination or test them by reference to documentary evidence in the bundle.[38]In the face of that lack of clarity on the part of Mr Keegan, I take the view that I could simply dismiss this case on the grounds that Mr O’Regan had failed to identify and prove a last straw at all. I have decided against that course because I take the view that part, at any rate, of Mr Keegan’s failings in this regard must be escribed to the fact that we are dealing with a complicated area of law and Mr Pagdin, although he has done his level best and has been of great help to the Tribunal, is not a lawyer and he is not an expert in this area of law and must less so is Mr Keegan. I take the view that it is possible that they did not really understand in preparing for this case the necessity of focussing on what matter they would put forward as amounting to a last straw.[39]I take the view that it would fairer for me to see whether, on the basis of the evidence advanced before me, I could make up my own mind as to what I thought had truly caused Mr Keegan’s resignation and to decide on the basis of that finding whether or not I could identify, in any of the reasons that I thought had prompted the resignation, something that might amount to a last straw. Why did Mr Keegan resign following his refusal of redeployment?[40]I have concluded that Mr Keegan did not take up the offer of redeployment because he had a completely unfounded belief that redeployment or re-engagement would result in his having to work in Hotel Services. I have concluded that once he realised that he was not prepared to accept the offer of redeployment he had no choice but to resign.[41]I have reached that conclusion on the following basis. In the claim form Mr Keegan set out a number of matters which he was relying on as a breach of the contract of employment. Those are numbered 1-10 in paragraph 8.2. However, they were added to as a result of a preliminary hearing that I held with Mr Keegan on 1st February. I asked Mr Keegan on that occasion what it was that had promoted his resignation and what matters, in addition to the matters contained in the claim form, caused his resignation. I asked that particularly because most of the matters referred to in the claim form were about events that led up to the first disciplinary hearing and there was very little reference to subsequent events. In discussion with Mr Keegan I learned that Mr Keegan wished to rely on what now appears at10.1 and10.2 of that Order, namely the following: “the offer of reinstatement requiring him to work with Mr Goodison” and “the fact that reinstatement would be in Hotel Services under the director, Mr O’Regan”. Those two matters in turn came from the very last sentence in box 8.2 of the claim form which reads as follows: “I would have to go back working for Hotel Services, who have lied, bullied and affected my health. I’ve absolutely no doubt that I would be persecuted upon my return”. It seems to me that the claimant genuinely harboured the belief that a return to work at the respondent services would put him in all probability back in Security under Mr Goodison and certainly somewhere back in Hotel Services, and therefore under Mr O’Regan. In the circumstances one could understand why the claimant would be reluctant to return. Mr O’Regan had been the officer who (the claimant believes unfairly) had dismissed him. Mr Goodison had been the person against whom many of the claimant's grievances had been brought. Indeed, when taxed about this in cross examination the claimant justified his belief that he was inevitably going to end up back in Hotel Services by saying that the only alternative that he knew about were medical posts which he was obviously unsuited for.[42]However, the claimant was forced to admit during cross examination that that belief, even though he appears to have genuinely harboured it, was unfounded. What was under discussion was redeployment. The claimant had made it clear to Ms Marvin in correspondence leading up to the final meeting that he was not prepared to return to Hotel Services. Nevertheless, Ms Marvin had asked the claimant to complete a questionnaire from which she could gather his skills and preferences. Ms Marvin gave evidence to the Tribunal, which was unchallenged, that there were some 1,400 Band 3 jobs outside of security services in the Trust, many of them not entailing any specialist medical knowledge, and she mentioned for example jobs in supplies and maintenance. I take the view that the claimant genuinely but mistakenly believed that he would find himself working directly with people in whom he had no trust and that he would be persecuted should be return to work.[43]Does any of that reveal a last straw? To my mind the answer must be certainly not. The claimant acknowledged freely that he thought that Ms Marvin, the Human Resources officer with whom he was dealing during and following his appeal, was being honest and straightforward with him. There are no grounds for doubting Ms Marvin’s evidence that she was actively seeking to find a job that would suit the claimant. She did not balk at the suggestion that that would have to be outside of Hotel Services and she also gave evidence, which was not challenged, that she had handled redeployments before where there had been a person returning to work in the same service, and other redeployments where there had been a move to a different service where that person’s skills could be accommodated. The respondent Trust has 17,500 employees. It is a very large organisation. I take the view that the claimant could not reasonably have concluded that in all of those circumstances he was bound to end up working under Mr Goodison and/or Mr O’Regan.[44]Before I move on, perhaps I should say something about the claimant's concerns about the Human Resources department. Ms Marvin’s unchallenged evidence is that for a Trust of 17,500 people the Human Resources department contains something around 20 employees. That itself is split up into teams. One team of five members of staff looks after Hotel Services. The other teams, although likely to lend support from time to time to their colleagues, have other responsibilities. Mr Keegan lost trust in Ms Wardle because of her contribution to what he saw was an unfair dismissal. He had earlier lost trust with another Human Resources officer, Mrs Marron, because of matters which I heard no evidence about, and I cannot therefore conclude whether it was reasonable for him to have lost that trust. Whether it was or was not, to my mind it was not reasonable for the claimant to take the view that the whole of the Human Resources department was not to be trusted on the basis that Ms Wardle and Ms Marron had lost his trust. To begin with, Ms Marvin was clearly acting in a trustworthy manner, and as far as the evidence has shown the claimant had had no contact at all with any other members of the Human Resources department, at least during these proceedings. Redeployment other than in Hotel Services would almost certainly have meant that the claimant would have been looked after, in Human Resources terms, by a different section of the Human Resources team. Therefore, to the extent that any loss of trust in Human Resources contributed to the claimant's decision to resign, I take the view that that too was an unreasonable basis for resigning, and it is difficult indeed impossible for me to see where the respondent could be said to be in fundamental breach of the claimant's employment by declining to dispense with the whole of the Human Resources department as a condition of the claimant returning to work.[45]On the basis of the paragraph set out above I conclude that the claimant cannot establish that he resigned in response to a last straw which could be said to contribute to a list of other straws amounting to a fundamental breach. The reason for his resignation was an unfounded belief, not held reasonably, that he would be reinstated into Hotel Services. That cannot amount to a last straw.[46]Taking Kaur and Omilaju literally, that mighty be sufficient to dispose of this claim. However, I take the view that it would be helpful to the parties if I expressed my view on the many other matters which have been canvassed in evidence during the course of this case, and pointed out what my attitude to them would have been had my findings on the last straw been other than they are.[47]As Kaur makes it clear, establishing a last straw is not all that is needed. Unless that last straw is by itself a fundamental breach the claimant must show that there are other matters which taken together could amount to a fundamental breach of contract.[48]The list before me of matters relied on by the claimant is already set out and runs to 13 matters. I will deal with each of those in turn to the extent that they have not already been dealt with. The bringing of a disciplinary case against the claimant in 2015.[49]Although the evidence from the claimant was that he believed that that disciplinary case was persecution on the part of Mr Goodison and that he had only, as it were, pleaded guilty to avoid more serious repercussions, the documentary evidence makes it clear that the claimant did accept the charge against him and did not appeal. In the circumstances I am not prepared to conclude on the balance of probabilities that Mr Goodison’s bringing of a disciplinary charge against the claimant in 2015 was anything which could amount to a fundamental breach on its own or could contribute to a fundamental breach along with other matters. The claimant has not established on the evidence before me that there was anything blameworthy, unreasonable or unfair about Mr Goodison’s behaviour on that occasion, and indeed the evidence points to the fact that the claimant accepted his guilt. The question of the orthopaedic chair.[50]The claimant complains that he was refused an orthopaedic chair. The evidence establishes the following.[51]In April 2016 the claimant, in a meeting with Mr Goodison, his line manager, raised the possibility of an orthopaedic chair because of his back condition. There is a disagreement between the claimant and the respondent as to whether Mr Goodison agreed there and then in the meeting to supply that chair. The claimant says that he did, the respondent denies that he did. I found on balance that I did not accept the claimant's evidence that Mr Goodison gave a promise that an orthopaedic chair would be supplied. The documentary evidence does not support the giving of such a promise, rather it supports the respondent’s case, which is that all that Mr Goodison did was to say that he would refer the matter of an orthopaedic chair to Occupational Health. Not only is that what the document says but it also seems to me to be the likeliest response. Mr Goodison might have been the budget holder but he was unlikely to spend part of his budget on an orthopaedic chair without having first had expert input from Occupational Health as to whether(a) such a chair was necessary, and(b) if so what such a chair should be. I would expect a manager in Mr Goodison’s position to take expert evidence in those circumstances.[52]In any event, that is exactly what the documentary evidence shows happened. The claimant was referred to Occupational Health which in turn decided that the matter was best dealt with by having a proper DES assessment. The matter was then referred for assessment and in early July the assessment report came back saying that since the claimant was due to have back surgery in August the assessment would be put on hold until the claimant returned from his surgery.[53]The claimant’s other complaint here it appears to me is centred on a meeting between himself and Mr Goodison in July 2016. The claimant repeated his request for a chair despite the fact that the expert carrying out the assessment had said that the matter should be deferred until after his return from surgery, and in the face of that return Mr Goodison had refused and described the claimant's attempt to get the chair as a “nice try”.[54]To that extent it is the case that what Mr Goodison did was to refuse an orthopaedic chair before the claimant had back surgery, and I am satisfied that the claimant has established the facts upon which he relies. Might that be said to contribute to a breach of contract? I have concluded that it does not. Mr Goodison was within his rights to maintain the position that he should be guided by the experts. The position was simply that until an assessment could be carried out no chair should be supplied, and Mr Goodison in July was aware that that was the position. It is to my mind doubtful that Mr Goodison could have made the management case for a chair without having the authority of a proper assessment, and in refusing the chair in July Mr Goodison was doing no more than re-asserting that, to my mind, reasonable position. I do take the view that Mr Goodison could have dealt with the matter more professionally, and Mr Goodison appears to have apologised in August for having dealt with it in that way. In that minor way I think that Mr Goodison’s management of the situation was less than ideal, and I take the view that that exchange might add some few penny weights to a cumulative fundamental breach. The claimant’s grievance in October 2016 was never fully investigated[55]Mr Webster deals with this matter by saying that it was not fully investigated because it was withdrawn and that cannot be a matter of criticism of the Trust. I agree. It is true that Mr O’Regan was later criticised by the appeal panel for having decided to dismiss the claimant without having fully conducted an investigation into the grievance. That, however, does not appear to be what is being complained of at point 3, and to my mind there can be no complaint about the ending of the formal investigation into the grievance once Mr Keegan and his colleagues had retracted it. The suggestion that Mr Goodison lied in his statement in the investigation about the issue of the orthopaedic chair.[56]This is a matter which caused me some puzzlement because I found it very difficult to identify what it was that was said to be the lie. This was certainly not a matter that the claimant could have known about until he received the disciplinary pack, because the lie is said to be encapsulated in an investigatory meeting between Mr Burgin and Mr Goodison during which the question of the chair was touched on. I was referred to page 505 in the bundle which contains the notes of that meeting. At page 505 Mr Burgin asks about point 6 in the grievance, which is a reference to Mr Keegan needing a chair because of his bad back. Mr Goodison confirmed that point 6 concerns Mr Keegan, and then makes the following statement, “All the chairs in the department have been approved by both Occupational Therapy and Occupational Health that they are suitable for use. Mr Keegan is off sick, and when he returns, I was intending to have a workplace assessment done for him, but there’s no point in doing it when he’s not here, or before he’s had his operation.” Objectively speaking, there is no complaint about the first part of that statement referring to the suitability of the existing chairs; the complaint appears to relate to the second part in which Mr Goodison explains why no assessment has been done up to that point and goes on to state his intention to have an assessment later. The documentary evidence establishes that Mr Goodison was saying no more than what the case was, and I found it difficult to understand why what was being said amounted to a lie. Eventually during Mr Pagdin’s closing submission it was clarified that this was a lie of omission in that Mr Goodison had not detailed the events of the July meeting and the exchange that he had had with Mr Keegan in that meeting about an orthopaedic chair. I have no idea why Mr Goodison answered that question in the way that he did. I have no idea whether he was deliberately obfuscating or whether he simply did not regard the July meeting as particularly relevant. It is clear to me that Mr Goodison believed that he was being asked to explain why no orthopaedic chair had been supplied and that he supplied, on the face of it, an accurate answer from his point of view. In the circumstances I take the view that the claimant cannot establish that there was anything that might amount to a lie on the part of his line manager and anything that might contribute to a fundamental breach of contract. The Claimant’s dismissal in his absence.[57]Point 5 is the claimant's dismissal in his absence. Here I do take the view that the respondent is significantly at fault and that that decision on the part of Mr O’Regan could indeed contribute to a breach, one that might even amount to a fundamental breach on its own. My reason for reaching that conclusion is as follows.[58]Mr O’Regan was the decision maker and it was his decision as to whether or not the meeting of 7th March (the disciplinary meeting) proceeded or did not. By the time that meeting had taken place, the respondent had commissioned an Occupational Health report (see page 847). That report was dated 1st February. The report acknowledged that the claimant had a back problem and that he was waiting for the outcome of further investigations, which might result in further treatment and which might have an implication for his participation in future disciplinary processes. However, it went on to conclude that the claimant was at that stage fit to attend a hearing.[59]Later, the claimant wrote to the respondent asking for a postponement and saying that he had severe back pain which was affecting his ability to concentrate. Alongside that email he included a copy of the consultant’s report (315). That report, setting out the results of a biopsy, identified the fact that he claimant had an infection in one of his discs which might account (and I quote) “for your current severe back pain”. Ms Lawford, who saw that report, characterised it as containing nothing new. Ms Wardle, who also saw the report, did not see fit to advise Mr O’Regan that he should give consideration to adjourning. Mr O’Regan decided against adjourning without seeing the report.[60]I take the view that the report is unequivocal support for the claimant's contention that by the time that the meeting was approaching in early March the Occupational Health report was, to this extent, out of date. The claimant had by that point developed severe back pain. The report makes it clear that that was the case, and that was to my mind grounds for Mr O’Regan taking a different view to the appropriateness of proceeding with a disciplinary hearing. His decision to go ahead was wrong, and not only was it wrong as a matter of substance but it was wrong as a matter of procedure: he was the decision maker and it was for him to satisfy himself on all of the evidence, and not partial evidence or indeed on the view of a Human Resources officer as to the evidence, that going ahead was the right thing to do. Failing to comply with the ACAS Code of Conduct in that the disciplinary procedure was delayed and minutes of meetings were not supplied.[61]The claimant complains that the disciplinary hearing did not comply with the ACAS Code of Conduct since it was delayed and minutes of meetings were not supplied. As to that latter point, I have never been taken to any evidence to suggest that minutes of meetings were not supplied, and indeed the index for the disciplinary hearing identifies some 1000 or so pages of documentation, and as far as I can see was extraordinarily comprehensive. In evidence the claimant was unable to take me to any set of set of minutes which were contained in the bundle before this Tribunal which he had not seen at the appropriate stage in the disciplinary or appeal hearings.[62]As to the question of whether or not the disciplinary hearing was delayed, I do agree that an unreasonable or unnecessary delay in disciplinary hearings is not only in breach of the ACAS Code but could contribute to a fundamental breach. I do not, however, accept that the claimant has made out a case that such an unreasonable or unnecessary delay took place. In the first place, I am satisfied that the circumstances in this case were somewhat out of the ordinary. The claimant was one amongst many members of the security team going through investigation and discipline, and the Human Resources department had a large number of meetings (I have told, without significant challenge, that it was in the region of 120). Those meetings generated an enormous amount of paperwork, the claimant and others each receiving a disciplinary pack, which was individuated to, them of around about 1000 documents. In the circumstances a disciplinary hearing was likely to take a bit longer than in more straightforward cases to arrange. As it is, the evidence establishes that the claimant's investigatory meeting took place on 11th November and that generated further meetings on 7th and 8th December. Ms Lawford wrote to the claimant on 14th December setting out her view that there was a case to take to a disciplinary hearing. The claimant then responded by saying that he was unwell and that generated the necessity for a referral to Occupational Health on 11th January, and the Occupational Health report was not available until 1st February, and it was not until that point that it was clear that it was the view of the Occupational Health department that the claimant was fit to attend, and within a fortnight he was invited to attend a meeting to take place three weeks after that. The claimant was therefore not, to my mind, subjected to a significant or unreasonable delay in his disciplinary hearing. Disclosing the claimant’s personal details by way of his address and the notes of a back to work meeting discussing his health to other colleagues involved in disciplinary proceedings.[63]The next point is the question of whether or not the claimant's personal details were disclosed to colleagues. This, it transpired, was two different sets of personal details. The first of those was the claimant's address and the other was the suggestion that at least one of his colleagues, Mr Olivier, had seen notes of a return to work meeting between the claimant and Mr Goodison which would have disclosed the claimant's health details. Mr Webster, to my mind quite properly, submitted that the latter, if proven, would be a much more serious matter than the former. The claimant, however, cannot establish the latter. Mr Olivier did give evidence to this Tribunal by way of a written statement. There is nothing in Mr Olivier’s written statement that says that he saw the claimant’s return to work notes. There is nothing in the documents before me which shows that Mr Olivier received a disciplinary pack containing that documentary evidence. Furthermore, Ms Lawford when asked about it during the appeal process, explained that although there was a core bundle containing all of the evidence for all of the members of the security team being disciplinary, that bundle was individuated when being sent out. The claimant accepts that he did not receive anybody else’s medical evidence, suggesting that care was being taken by the Human Resources team to make sure that only appropriate information was sent to each employee. I therefore reject the any suggestion that the claimant’s medical evidence was available to any of his other colleagues.[64]It is agreed, however, that the claimant's address was supplied to his colleagues as part of the disciplinary pack. The respondent’s position is that in any case it was readily available in the form of a document available to all members of the security team and necessary for their ability to arrange cover at the last minute. The claimant disagreed saying that only telephone numbers were known. The primary evidence on that point needed to come from Mr Goodison, but the only evidence I heard was from Ms Marvin who was giving hearsay evidence. In the circumstances I prefer the claimant's evidence given under cross examination that all that was available to he and his colleagues was a list of phone numbers and I therefore take the view that the claimant's address was disclosed to his colleagues. That is regrettable and wrong but a relatively minor matter, and I take the view that it certainly could not amount to a fundamental breach of the claimant's contract on his own, although it could contribute another pennyweight to the scale of acts which taken together might do so. Delaying the claimant's appeal against dismissal.[65]Point 8 deals with a delay to the appeal. It is certainly the case that the claimant put in his appeal letter in mid-March and heard very little from the respondent until 27th June. It appeared, as the case developed, that the claimant's real criticism centred on the initial three-month delay, and I shall return to that.[66]I take the view that the claimant really has nothing to complain about in the events that came after the initial date set for the meeting (11 July). The claimant himself applied for that meeting to be postponed, giving as his reason his lack of time to prepare. During the cross examination by Mr Pagdin of Ms Marvin, Mr Pagdin focussed on the fact that the claimant would have had to have processed some 1000 documents sent to him along with the letter of invitation. As Mr Webster observed, however, those 1000 documents were simply the 1000 documents that the claimant had already had during the disciplinary process, with the relatively few additions necessitated by the extra fact of the appeal.[67]Of course, it was a matter for the claimant as to whether or not he felt he was ready to proceed, but the explanation that the claimant gives for his inability to be ready to proceed does not, it seems to me, suggest any wrongdoing on the part of the respondent. The respondent could, in my view, reasonably have concluded that a period of notice of two weeks was sufficient. The fact that the letter of invitation did not arrive until two or three days after it would normally do cannot be laid at the door of the respondent. There is no criticism of Mr Keegan in asking for the postponement, but to my mind there can be no criticism of the respondent that it somehow caused the necessity for that postponement by overburdening Mr Keegan with excessive documentary evidence in a short space of time.[68]Mr Keegan himself made it plain that he wanted plenty of notice for the next hearing because he now had a job, and, in the circumstances, there can be no real criticism of the respondent in setting a date for 8th September. In any case attempting to pull together a panel for an appeal hearing over the month of August was bound to be complicated by the problem of holidays. The respondent then postponed the appeal hearing for a further brief period because Mr Keegan supplied, relatively close to the day pf the appeal hearing, extra documents which contained new evidence and which it was thought appropriate for the respondent to properly consider ahead of the meeting.[69]On the basis of the facts set out above I take the view that there can be no blame laid at the door of the respondent for the delays after 11th July, which was the date of the original appeal.[70]I do take the view that the claimant was entitled to be concerned about the lack of communication with him between the acknowledgement of appeal and the invitation to the meeting. In all of that time only one letter emerged and that was the full reasons for the decision, which was sent to him in April. Whilst Ms Marvin told the Tribunal, and I accept, that it is not standard practice to send holding letters to employees, in my view the respondent ought to give some thought to the fact that in circumstances where appeals might be delayed by as much as three months. Employees are bound to be in some sort of limbo and anxious as to what the future might hold. If, as is entirely understandable, it is difficult to arrange an appeal in short order, then a proper system of reassuring employees that they have not been forgotten and that something will emerge by way of details for a hearing would, to my mind, be good management practice. I take the view that it should have occurred to the respondent that Mr Keegan needed reassuring and some sort of correspondence ought to have been sent to him. I do not take the view, however, that the failure to be able to arrange the appeal hearing earlier than 11th July is of itself unreasonable, and I accept the evidence given to me by Ms Marvin that there were good reasons for that, essentially relating to the large number of appeals that the disciplinary process had generated. I do not accept Mr Keegan’s suggestion, repeated in the closing submissions, that the only reason why the letter of 27th June was sent was the fact that Mr Keegan had earlier that month presented a claim to the Employment Tribunal. I accepted Ms Marvin’s evidence that she was entirely unaware of the fact that that claim had been presented until after she sent the letter to Mr Keegan. She explained the process by which those claims are dealt with, and I found her evidence to be truthful. Nevertheless I find the lack of communication associated with that delay to be another area of criticism which can add to the matters which the claimant could rely on. Did the claimant affirm any of the breaches identified thus far?[71]At this point, however, I take the view that it is appropriate for me to deal with the question of affirmation. I take the view that in persisting with his appeal and engaging, at least initially, with the redeployment process, the claimant waived whatever breaches may have occurred up to the date of the appeal hearing and affirmed the contract. These acts are evidence with an active engagement with the respondent evincing a desire to continue as an employee even in the face of the events outlined above. That, to my mind, is unequivocal evidence of the claimant wishing to continue and engage with the respondent. His right to appeal is one given to him by contract, and in exercising it and persisting with it, even though the initial appeal hearing was greatly delayed, the claimant evinced a desire to continue to engage in the contractual relationship. That affirmation, of course, would not matter had the claimant been able to identify a last straw. He has not been able to identify a last straw as I have set out in detail above, and it therefore follows that the affirmation of those matters must prevent the claimant from now complaining about them as founding a claim of constructive dismissal. Not disciplining any member of the management of Hotel Services. Failing, contrary to the instructions of the appeal panel, to investigate the claimant's grievance, and failing to investigate his complaints of bullying against Mr Burgin raised during the disciplinary process. Requiring the claimant to return to work after reinstatement working under Mr Goodison. Requiring the claimant to return to work after reinstatement under Mr O’Regan. The claimant to return to work in a Trust where the Human Resources Department personnel had not changed.[72]I can deal briefly with the remaining matters, 9 through to 13. It certainly is the case that no member of the Hotel Services Management Team has been disciplined, and it is certainly the case that to date the grievance complaint has not been investigated, or rather than investigation has not been completed. The question of the Tribunal, however, is what was the situation as at the date of the claimant's resignation, not what the situation is now. The Tribunal must decide what it was that was a breach of contract at the point of resignation on 1st November.[73]By that stage, the fresh investigation of the grievance had barely got off the ground since it had only been ordered by Mr Morley at the appeal hearing in midSeptember. The claimant could not reasonably have expected the investigation of such complexity to have been completed by that stage. It must also follow that the non-completion of that investigation was the sole reason for the fact that no discipline had been meted out. If, of course, that investigation discloses wrongdoing on the part of any member of the Management Team of Hotel Services, Mr Keegan could expect properly that they would be subjected to discipline, and a failure to discipline them might indeed, in all the circumstances of this case, contribute to or amount to a fundamental breach of his contract of employment. However, Mr Keegan is not entitled to expect that and cannot complain of a breach in respect of that until the investigation has found that there are disciplinary matters to be answered.[74]Subsidiary to point 10 is the complaint that Mr Keegan made during the disciplinary hearing that he had been bullied by Mr Burgin has not been investigated. That is true, but I am satisfied on the evidence in front of me that when it was raised with Ms Lawford she suggested to the claimant that if he wanted to make a complaint about that he ought to do so under the relevant procedure. I am afraid I do not accept Mr Keegan’s evidence that Ms Lawford undertook to go away and investigate on what basis a complaint could be made against Mr Burgin under that procedure given the fact that Mr Burgin was not an employee. If that was said it is certainly not contained in the letter following that meeting, and Mr Keegan has been able to take me to no evidence to suggest that Ms Lawford’s failure to pursue that matter was ever complained about by him. In the circumstances I take the view that the reason why there was no investigation into that complaint was the fact that the claimant did not take up the suggestion of pursuing the matter via the appropriate procedure. The claimant therefore cannot complain that this was an act amounting to a fundamental breach or even contributing to one. Even if it were, it must have been obvious to the claimant even before his first appeal hearing that there was to be no such investigation and the act therefore would be another of those affirmed by the continued engagement described above.[75]I have already dealt with points 11, 12 and 13 in my finding on the last straw, and I need say no more about them.[76]For all of the reasons outlined above I conclude that this claim must fail and is dismissed.