Mr S Kilroy v The Phoenix Academy Trust: 2602554/2018
JUDGMENT
[1]The claim of constructive unfair dismissal pursuant to Section 95(1)(c) of the Employment Rights Act 1996 succeeds.REASONS
[1]Mr Hamilton represented the Claimant whom he called to give evidence on his own behalf. He also called Ms Stacy Smith, Mr Kilroy’s partner. Mr Hoyle represented the Respondents and he called Mr J D M Rose the Chairman of the Governors of Phoenix Academy Trust. He also called Ms J Harvey a Parent Governor for Phoenix Academy Trust. There was an agreed bundle of documents and references are to page numbers in that. Issues and theRelevant Law
[2]I held a case management discussion with the parties respective advisers which led to the following case management summary:- “1. Mr Kilroy’s principle claim is that of constructive unfair dismissal. It was not clear to me from the pleadings how the contract of employment was brought to an end and by whom. The matter was clarified and it is common ground:-1.1 That by a telephone call on 23rd July 2018 from the Chairman of the Governors to Mr Kilroy the outcome of a disciplinary hearing was communicated to the effect that Mr Kilroy was summarily dismissed. Page 1 of 91.2 Mr Kilroy’s solicitor posted to the Respondents on that day a letter of resignation. It is common ground that that letter has no effect to bring an end to the contract of employment (added for clarity).1.3 Mr Kilroy appealed his dismissal and as a result of that appeal Mr Kilroy was reinstated and that was communicated to him on 16 October 2018.1.4 By letter of 22 October 2018 Mr Kilroy resigned and it was that letter of resignation that brought the employment contract to an end. 2. Thus the issues in relation to constructive unfair dismissal are:-2.1 Was the employer guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract (in this case the implied term of trust and confidence) then the employee is entitled to treat himself as discharged from any further performance?2.2 If so did Mr Kilroy resign as a consequence of that breach?2.3 Did he do so promptly ie without affirming the contract?[3]There was a discussion whether there was sufficient time given that the case is listed for one day on 7 March. The parties are of the view that there is a reasonable prospect of concluding the evidence at least on that day. It is therefore preferable that the matter proceeds rather than postponed which neither party wants.” Relevant Law 3. The relevant law is Section 95(1)(c) of the Employment Rights Act 1996:- “(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2):- (c) 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.”[4]As to case law given that Mr Kilroy relies upon a breach of the implied term of trust and confidence. It is for the Claimant to show that the Respondent (The Trust) did not without reasonable or proper cause conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee.[5]A breach of the implied term of trust and confidence will always be a significant breach ie a repudiatory breach if proven. Page 2 of 9Findings of fact
[6]Mr Kilroy had been a Teacher for 28 years and since 1998 he taught first at Stubton Hall Boarding School which was replaced by the Phoenix School in 2003 and became the Phoenix Academy Trust in 2013. He became Assistant Head at the Trust in 2006 and Deputy Head in 2011 and from September 2014 he became Vice Principal, eventually becoming Acting Principal in March 2018. The Trust is a mixed BESD (Behaviour, Emotional and Social Difficulties) Secondary School.[7]In early 2018 discussions began between the Trust and a body known as Community Inclusive Trust which led to the acquisition of the Trust by CIT. It is not clear to me when that transfer actually took place. What is clear is that the disciplinary process which led to Mr Kilroy’s dismissal which was communicated to him orally on 23 July was conducted by persons representing CIT.[8]I found Mr Kilroy to be a straightforward and truthful witness. Very little of his evidence was contradicted by the Trust’s 2 witnesses who seemed to have done precisely what they were advised to do.[9]Mr Kilroy’s evidence which I accept is that on 22 January 2018 he made a phone call to an acquaintance, Chris Armond who was employed by CIT. He rang Mr Armond to ask what the process of transfer to CIT would be and Mr Armond asked him “do you want a pay-out”. Mr Kilroy responded in the negative and said that he wanted to be considered for the permanent role of Head Teacher.[10]On 11 May 2018 he met Mr Armond and Ms Louise Perkins at the Trust and was questioned about discrepancies between the inventory of pictures and artworks and a different inventory sent by Mr Kilroy to Mr Armond.[11]On the same day Mr Armond met with Mr Kilroy and Mr Kilroy was again questioned about the differences between the two inventories. Mr Armond said “if you resign this matter will go away”. Mr Kilroy’s response was “why would I need to resign. What’s the issue?”.[12]On 14 May 2018 at short notice Mr Kilroy met with Mrs White, the HR lead of CIT. The notes of that meeting are at pages 105 to 108. Mrs White said as follows: “AW explained that a concern had come to light regarding the School’s artwork/painting. AW further explained that she had been asked by the Chair of the Governing Body to carry out an investigation. As Investigation Officer it was her responsibility to fact find in respect of the investigation. AW would be asking questions and giving SK the opportunity to provide answers.” That process carried on and AW concluded that because the investigation could be of a serious nature the Chair of Governors has confirmed in an e-mail that you are to be suspended on full pay.” A letter to that effect was handed over, see page 109/110. Page 3 of 9[13]Mrs White at her instigation met with Mr Kilroy for an off the record meeting. The meeting took place on 16 May at Mr Kilroy’s home. Mrs White handed over the minutes of the meeting of 14 May which led to Mr Kilroy’s suspension and there was a discussion about the returning of paintings that belonged to the school which were currently stored at Mr Kilroy’s house. Mr Kilroy expressed his concern about the fact that he was the exam officer and that there was work that required to be done and offered to help.[14]Mr Kilroy’s evidence is that Mrs White stated that he could resign. Mr Kilroy’s response was “why do people keep telling me to resign. Why would I need to do that?”. Mrs White’s response was that if you resigned all of this would go away. I note at this stage that Mrs White was present during the hearing but did not give evidence.[15]Mr Kilroy records in his evidence in chief that about that time ie mid-May he formed the belief that trust and confidence between employer and employee had broken down.[16]On 5 June 2018 Mr Kilroy was by letter invited to attend an investigatory meeting “to investigate concerns that have been raised in relation to your responsibilities towards the pupils concerning exams and assessments”. Mr Kilroy responded asking for further and better particulars including any documentation that was to be used. Mrs White’s response is at page 116 effectively saying that any material would be supplied on 20 June.[17]The meeting did take place on 20 June and the lengthy notes are at page 116A to 116F. There was a further discussion of art work and additional concerns in respect of examinations were also put forward. They included alleged failure to enter pupils into exams, alleged failures to provide access, concerns regarding BTEC subjects and other subjects.[18]On 22 June Mrs White rang Mr Kilroy and I accept that his paragraph 48 of his proof of evidence accurately sets out that telephone conversation. As part of that conversation Mrs White invites Mr Kilroy to consider a compromise agreement. Mr Kilroy indicates that he would need to get legal advice.[19]I accept that a subsequent telephone conversation instigated by Mrs White on 26 June took place and again Mrs White invites Mr Kilroy to consider a compromise agreement as an option. On 27 June Mr Kilroy met with Mrs White at the Trust’s premises in order to further clarify the position about the ownership of paintings at the Trust’s premises. Again Mrs White invited Mr Kilroy to consider a compromise agreement and suggested “that £20,000 sounded like a good figure”. When Mr Kilroy did not respond she said “£30-40,000”. Mr Kilroy indicated that it should be a figure in excess of £50,000 which Mrs White wrote down and said she would take it back to CIT.[20]On 5 July Mr Kilroy is invited to a disciplinary hearing, see 138 and 139. The allegations to be addressed were as follows: “(1) Between September 2017 to July 2018 you grossly negligent (sic) in your duties as an exams officer when you failed to enter students into exams and/or provide access as evidenced by the attached. Page 4 of 9 (2) During your employment you had unauthorised possession of school property when you took paintings from the school as evidenced by the attached. (3) During your employment you may have sold school property without authorisation and/or lost several paintings belonging to the school which has caused unacceptable loss as evidenced by the attached.” Mr Kilroy was warned that summary dismissal might be a consequence.[21]Attached to the letter was Mrs White’s investigation report which we see at 143 to 149.[22]The disciplinary hearing was held on 12 July chaired by Mrs B Herbert of Lloyds Employment Law, Mr Rose the Chair of Governors, Mr Christopher Lawrence another Governor and Ms Selby the Clerk to the Governors. Mrs White was also present. The minutes of the disciplinary hearing begin at page 151A and conclude on 151W. There is a thorough discussion of the allegations against Mr Kilroy. Mr Lawrence is recorded as making 3 comments and Mr Rose only one. It is clear that Ms Herbert not only chaired but directed the meeting. Ms Herbert concludes at page 151V: “Has anyone else got something else that they would like to say? No. The plan then is to do some investigation into what you said today and a decision will be made to you. I can’t give you a time frame as I don’t know how long the investigation will take and obviously it’s not something to be rushed, you will remain suspended for the time being and I would say if anything pops into your head in the next day or so and you want to e-mail Ann or Denise which is the best person to go through.”[23]There is no evidence before me that any further investigation was carried out. Ms Herbert did not give evidence.[24]On 23 July Mr Kilroy instructed his solicitor to write to Mrs Herbert in the form of the letter that we see at 153 and 154. Although there is some confusion as to when the letter was actually sent it is common ground that before it was received by either Mrs Herbert or the Trust itself Mr Rose the Chairman of Governors had telephoned Mr Kilroy on 23 July to inform him that he had been dismissed with immediate effect.[25]It is important to note what the letter at 153 said. The final two paragraphs read as follows: “He now finds himself driven to the conclusion that there is no way in which he will be able to return. He feels that he is the victim of the current situation in which Phoenix Academy is being absorbed into CIT Academies, that he is not wanted, that the spurious allegations against him are a ruse to get rid of him and that if he were to return he would find himself under constant unwelcome pressure over his last 3 years. Page 5 of 9 We are in no doubt that the circumstances as set out above amount to a constructive dismissal and it is our client’s intention to regard himself as dismissed. This will inevitably give rise to a claim for unfair dismissal. We would welcome any proposals that Phoenix Academy may have by way of response.”[26]The dismissal was eventually confirmed in a letter of 1 August 2018 at pages 156 to 158. The allegation in relation to gross negligence as an exam officer was upheld. The other two allegations concerning art work were not upheld because the Trust had been unable to speak to the former Chair of Governors Mr Bush. The letter concluded that the allegation which was upheld was gross misconduct and Mr Kilroy was summarily dismissed with effect from 23 July.[27]The letter pointed out that Mr Kilroy had the right of appeal. By letter of 6 August Mr Kilroy did appeal by way of letter to the Clerk of the Trust. There were delays in arranging the appeal. During that period of delay Mr Kilroy complained that he had not been paid his holiday pay, that the matter of collection of his own property from the school had not been resolved and that he had heard nothing about the appeal.[28]At 192 is a letter of 30 August inviting Mr Kilroy to an appeal hearing. It is from Mr Rose. Mr Kilroy was to attend an appeal to be “heard by Mr Stuart Farrah, a consultant from Lloyds Employment Law Consultancy on Tuesday 4 September at Lloyds Employment Law offices etc. Mr Kilroy says that he acknowledged that letter by way of a telephone call to Mr Rose informing him that he would attend. Mr Kilroy did attend on Mr Farrah on 4 September to be told that Mr Farrah had been informed that the meeting had been cancelled because the academy had informed Lloyds that Mr Kilroy would not be attending. I accept Mr Kilroy’s evidence that he had done no such thing. The meeting was rearranged for 12 September and it did go ahead and the lengthy and thorough notes begin at page 197 and conclude at 219. There are only two people present namely Mr Farrah and Mr Kilroy. Having read those minutes which are in fact a transcript it seems to me that a reasonable observer would have come to the conclusion that having regard to the explanations put forward by Mr Kilroy there was little or no foundation for the conclusion that he had been guilty of gross negligence in his role as exam officer.[29]On 19 September there is a further significant letter from Mr Kilroy’s solicitors to Mr Farrah. The letter complains about the failure to make arrangement for the collection of Mr Kilroy’s personal possessions and goes on: “It seems that those with whom our client is communicating are unaware that irrespective of the result of the current appeal there is no question of our client returning to his former employment and, as he is (sic) points out to us as well as them, his personal possessions are quite separate from the outstanding issues. He is then told that the Governors are being advised by Lloyds Employment Law Consultancy.”[30]The letter goes on to say that the further delay in transmitting the result of the appeal was unacceptable. Page 6 of 9[31]There is a document at page 222 from Mr Farrah dated 13 September ie before he met with Mr Kilroy yet setting out a fair summary of the meeting he did hold with Mr Kilroy.[32]The letter then goes on to give advice as to the approach a Tribunal would take should Mr Kilroy bring a claim of unfair dismissal. The e-mail was sent to Ms Selby and Ms White. Neither of them have given evidence as to what happened to it.[33]On 8 October 2018 Mr Kilroy brought the proceedings which are the subject of this decision and I note that that was before the conclusion of the appeal was communicated to him. I note also that there is recorded as part of the narrative to the claim form the following: “If I was successful in my appeal my intention was to pursue my claim based on constructive dismissal.”[34]Unbeknown to Mr Kilroy or his advisers a further hearing took place to which Mr Kilroy was not invited at all. A letter from Mr Rose at page 229 of 2 October indicating “that the two Governors who sit on the Appeals Committee have requested further documentation before being able to reach a satisfactory conclusion” was sent to Mr Kilroy. In fact the Appeal Committee which consisted of Ms Harvey and Mr Price met on 11 October. Ms Harvey’s recollections of the hearing were almost none existent. In her evidence she says that they concluded that on the basis of the evidence that the issue was one of capability and not one of gross negligence. The one matter that she was able to confirm was that the Appeals Committee were informed that Mr Kilroy had declined to attend. I accept Mr Kilroy’s evidence that he did not so decline because he was never invited.[35]The outcome was that Mr Kilroy was reinstated with effect from 23 July but was issued with a final written warning.[36]I have to say that the outcome letter at pages 230 to 232 is to put it charitably bizarre. At page 231 it opens with the following: “Your job description was reviewed and it was evident that this is a capability issue as opposed to gross negligence. It was also noted that there had been a financial loss to the Academy with regard to the late entry of exams. You were negligent in the following areas.” It then lists 11 matters of alleged negligence which all appear to relate to his role as Acting Vice Principal but none of which appear to relate to the original charge for which he was dismissed. Nor could any of them be properly described as negligent. However notwithstanding its manifest defects it seems to have been accepted by both Mr Kilroy and his solicitor.[37]On 22 October Mr Kilroy’s solicitor wrote to the Trust and informs them in unequivocal terms that Mr Kilroy would not be returning to work. As already agreed at the Preliminary Hearing it is that letter that brought an end to the contract of employment. Page 7 of 9Conclusions
[38]Having regard to those findings of fact, has Mr Kilroy proved that there has been a breach of the implied term of trust and confidence. I remind myself that that is to be judged objectively. Firstly there are the conversations with Mr Armond which took place respectively in January and May. There are also the conversations with Mrs White that took place in May and June 2018. Those with Mr Armond took place before even an investigation into allegations of misconduct had begun and those with Mrs White during the investigation and subsequent disciplinary procedure. On no less than 5 separate occasions Mrs White in effect invited Mr Kilroy to resign. At that point Mr Kilroy had clearly formed the view that his employer wished to be rid of him. Objectively judged in my view he was correct to form that view.[39]As to the disciplinary process I accept Mr Hoyle’s submissions that there were reasonable grounds upon which to investigate the 3 allegations for which Mr Kilroy was held to account.[40]As to the allegations concerning the art work the Trust were right to conclude, in the absence of evidence from Mr Bush that they could not be substantiated and it was correct to find them not proven. As to the allegation of neglect in his duties of exams officer again it was reasonable to investigate and to bring Mr Kilroy to account by way of a disciplinary hearing. However it is not clear to what extent the Trust (in the person of Mrs Herbert) took Mr Kilroy’s explanations seriously. It appears to me that it was not until Mr Kilroy’s meeting with Mr Farrah that Mr Kilroy’s explanations were taken seriously. As noted above (see paragraph 23) Mrs Herbert indicated that there would be further investigations after the disciplinary meeting but there is no evidence that any were carried out. It is hard to derive any sense from the letter setting out the outcome of the appeal hearing given its contradictory and illogical conclusion save that there must have been doubts as to the finding of gross misconduct.[41]It is clear beyond doubt that on or about 23 July Mr Kilroy formed the view that he could not return to the Trust and in accordance with his instructions the letter at page 150 and 153 was sent in those terms. Had this letter not been rendered a nullity by Mr Rose’s telephone call informing Mr Kilroy that he had been summarily dismissed and had Mr Kilroy then brought proceedings swiftly, in my view a claim of constructive unfair dismissal would have succeeded.[42]Thus Mr Kilroy and his advisers were placed in a quandary. Since he had been dismissed, any claim then open to him would have been one of unfair dismissal. Plainly not pursuing a contractual appeal procedure would have been a factor in any such litigation.[43]Therefore the question is whether Mr Kilroy affirmed the contract by pursuing the appeal process given that he was no longer able to resign because the employer had brought an end to the contract of employment. It is clear from his evidence and the contemporaneous documents that Mr Kilroy wished to counter the allegations being made against him, clear his name and thereby support his family financially. Page 8 of 9[44]Can affirmation be implied from Mr Kilroy’s adoption of the contractual appeal process? Is that an unequivocal act from which it may be inferred that he intends to go on with the contract regardless of the breach of the implied term of trust and confidence.[45]In my judgment it cannot. On a number of occasions following the dismissal on 23 July Mr Kilroy made it plain that he did not intend to return to his employment irrespective of the outcome of the appeal. He did so in his meeting with Mr Farrah. His solicitor did so in their letter of 19 September, see page 220 and further his claim form to the Tribunal makes it clear that if his appeal was unsuccessful he was pursuing a claim of unfair dismissal but if it were successful and led to his reinstatement then he would then resign and pursue a claim of constructive unfair dismissal.[46]Finally there is no doubt that Mr Kilroy resigned primarily because of the delays in the disciplinary process and primarily the impression that was objectively justified that one way or another the Trust wished to be rid of him.[47]The claim of constructive unfair dismissal therefore succeeds.Remedy
[48]That therefore leaves the question of remedy to be determined. Given that both parties are represented I would hope that the parties can come to terms. I would mention that the Claimant’s statement in his schedule of loss to the effect that he has found himself unable to contemplate alternative employment is unlikely to satisfy me that he has taken reasonable steps to mitigate his loss. If the parties cannot come to terms then there will need to be a remedy hearing and I have made a direction accordingly. RECONSIDERATIONThe Relevant Law
[1]On 25 April 2019 the Original Decision was sent to the parties upholding Mr Kilroy’s claim of constructive unfair dismissal.[2]On 27 June 2019 following an Application for Reconsideration by Mr Hoyle a Reconsideration decision was sent to the parties and it confirmed the Original Decision.[3]Following an appeal to the Employment Appeal Tribunal a decision dated 29 July 2020 was sent to the parties. Page 1 of 8[4]The conclusions of Mr Justice Soole are set out below: “39. I have considerable sympathy with the ET in this case. It was not provided by the parties with the two decisions of the Court of Appeal which were of direct relevance to the issues before it. On the Respondent’s reconsideration application, it was provided with the decision in Kaur but not the decision in Folkestone Nursing Home on which this appeal now places its focus. 40. Nonetheless, having the advantage of the latter decision, I am clear that the ET’s conclusion about the effect of the Claimant’s adoption of the contractual appeal process cannot stand. In my judgment, the observations of Sales LJ in Folkestone Nursing Home have direct application. By his adoption of the contractual appeal process and viewed objectively, the Claimant was thereby and necessarily treating the contractual relationship as continuing to exist. I do not accept that his subsequent statements that he did not intend to return to work can amount in law to any qualification of his objective acceptance of the continuation of the contract. Expressed in terms of the principles of affirmation, his act in pursuing his appeal under the contractual procedure was an unequivocal election to treat the contract as continuing. 41. However, that is not the end of the matter. The Claimant’s case is that breaches of the implied term of trust and confidence continued through the Respondent’s conduct of the contractual appeal process. In consequence, the principles reaffirmed by the Court of Appeal in Kaur potentially come into play; and the five questions identified in that Decision fall to be answered. As the final parenthesis in question four makes clear, if the answer to the first four questions is ‘yes’, any previous affirmation is immaterial. An example is provided by the ultimate decision in Folkestone Nursing Home itself. 42. Accordingly I reject the Respondent’s argument that only the contents of the letter of 22 October can be taken into account for the purpose of deciding the issue of constructive dismissal. The ET considered the Claimant’s complaints about the Respondent’s conduct after his invocation of the appeal procedure and was sharply critical of various aspects of that conduct. However, its attention not having been drawn to Kaur, it did not go on to consider the five questions. The only apparent reference to the effect of the Respondent’s conduct of the process was in paragraph 46 of the Judgment. 43. The five questions were posed to the ET in the Application to Reconsider and these have been answered in the Reconsideration Judgment. On the face of it, the answer to the first question identifies an event which precedes the Claimant’s affirmative act of invoking the appeal procedure. However, these answers were given(i) in the context of the ET’s finding on the issue of affirmation and(ii) without full argument. Page 2 of 8 44. In respect of its answer to the first question I add that the Judgment at paragraph 30 recorded that the Claimant’s solicitors’ letter of 19 September had complained about the continuing delay in transmitting the result of the appeal. In circumstances where the ET evidently understood Mr Kilroy to be contending that there had been a continuing breach of the implied term of trust and confidence, I reject any suggestion that the answers in the reconsideration Judgment demonstrate that the claim would have failed in any event. 45. In my judgment, Mr Hoyle was right to accept that even if successful on the point of affirmation, this was a matter which should be remitted and to the same ET. In any event, that is my decision. 46. In all the circumstances I conclude that the ET’s Decision that there was a constructive unfair dismissal should be set aside; and that the determination of that issue should be remitted to the same ET for reconsideration in the light of this Judgment and the five questions identified in Kaur.”[5]The operative paragraph is paragraph 46 and requires me to reconsider in the light of Mr Justice Soole’s judgment and the five questions identified in Kaur. They are as follows:-5.1 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?5.2 Has he or she affirmed the contract since that act?5.3 If not was that act (or omission) by itself a repudiatory breach of contract?5.4 If not was it nevertheless a part (applying the approach explained in Omilaju) of a course or 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 for the reason given at the end of paragraph 45 above.)5.5 Did the employee resign in response (or partly in response) to that breach? The relevant part of paragraph 45 reads as follows: “If the Tribunal considers the employer’s conduct as a whole to have been repudiatory and the final act to have been part of that conduct (applying the Omilaju test), it should not normally matter whether it had crossed the Malik threshold at some earlier stage; even if it had, and the employee affirmed the contract by not resigning at that point, the effect of the final act is to revive his or her right to do so.” Page 3 of 8[6]The Omilaju test is set out at paragraph 40 of the Kaur judgment: “40. The particular issue in Omilaju was, as Dyson LJ formulated it at para.19 (p.488 F-G), “what is the necessary quality of the final straw if it is to be successfully relied in by the employee as a repudiation of the contract?”. He answered that question as follows (pp. 488-9): “19…. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase ‘an act in a series’ in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.20. I see no need to characterise the final straw as ‘unreasonable’ or ‘blameworthy’ conduct. It may be true that an at which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle. [Emphasis supplied.]”[7]On 16 September 2020 Regional Employment Judge Swann held a case management summary setting down this hearing. It was agreed that no live evidence would be submitted and that reliance will be placed on the existing Tribunal bundle, evidence and any witness statements that were taken into consideration at the previous hearing. The parties were to make their submissions through written argument. Page 4 of 8[8]The parties duly complied with the order to submit written submissions and orally today they both commented on each other’s submissions:[9]Kaur: Question 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?[10]Mr Hoyle submits “it is the Respondent’s position that because there was a reinstatement and any claim to prior breaches were waived, the Claimant had nothing which he could rely upon post reinstatement which he could hold as being a new breach or series of breaches entitling him to resign”. It seems to me that this is at odds with paragraph 42 of Mr Justice Soole’s decision.[11]Mr Hamilton submits that the answer to this question is the Respondent’s letter of 16 October 2018 ie the letter communicating the outcome of Mr Kilroy’s appeal against dismissal. I agree.[12]Question 2: Has he or she affirmed that the contract since that act?[13]On 22 October 2018 Mr Hamilton writing on Mr Kilroy’s instructions (see paragraph 94 of Mr Kilroy’s proof of evidence) says the following: “Our above named client has asked us to acknowledge receipt of your letter to him of 16 October and to respond to the content. The expectation that our client will return to work on Monday 29 October expressed in the penultimate paragraph of your letter is unrealistic. We have been advising Mr Kilroy since his suspension last May and whilst initially he hoped that he would be reinstated, the way in which he was treated prompted our letter to Ms Betha of 23 July and, when she disclaimed responsibility our letter of 24 July to Mr Rose. Nothing that has happened since has altered the position other than to convince our client that his decision was correct. Not only has there been the protracted delay in resolving his issue, there has also been a persistent disinclination on the part of the academy to address the matter of his personal possessions at the school and for him now to be told that after a period of more than 5 months he is to receive a final written warning and is “expected” to return to work, despite the letters to which we refer, is a continuation of an attitude which is wholly inconsistent with a normal employer/employee relationship. Whilst, as a matter of law, the decision that our clients purported misconduct was a capability issue as opposed to gross negligence cannot be criticised and, if the allegations were true, was inevitable we have to make it clear on our client’s behalf that he does not consider himself as having been guilty of any misconduct during his twenty years of employment with the academy. There are eleven bulleted findings in your letter but no consideration appears to have been given to the fact that the original allegation of gross misconduct covered the period September 2017 to July 2018 – a period which extended more than two months after our client’s suspension. At the time of his suspension he pointed out that it was a crucial time in examination process and was told that it was not his responsibility. Page 5 of 8 Our client’s application to the Employment Tribunals based on unfair dismissal/constructive dismissal was submitted on 8 October 2018. So that there is no misunderstanding we must make it clear that he will not be back on work on Monday 29 October 2018 and it is his intention to pursue his constructive dismissal application.”[14]In my view there is no evidence to suggest, that Mr Kilroy did affirm the contract post 16 October 2018.[15]Question 3: If not, was that act (or omission) by itself a repudiatory breach of contract?[16]Mr Hoyle referred me to the case of Alidair v Taylor [1977] ICR beginning at page 445. Mr Hoyle said that in the light of that judgment I should not substitute my own view as to the correctness of the Respondent’s decision in substituting capability for conduct in their outcome of appeal letter. I am not doing so and in my view it is not relevant to my decision to do so. The matters complained of in Mr Hamilton’s letter of 22 October beginning at page 234 which I have set out in full above are the protracted delay in resolving the employment issue and secondly the matter of the return of Mr Kilroy’s personal possessions.[17]There was further delay in both hearing the appeal (I say that notwithstanding that Mr Kilroy was not present at the Governors’ appeal hearing) and in delivering the outcome. There was also a failure over a period of 7 weeks to deal with the return of Mr Kilroy’s possessions. Taken together, I do not consider that they amount to a repudiatory breach of contract. However, they clearly meet the last straw test set out in Omiljau, the conduct being both blameworthy and unreasonable. So, the answer to Question 3 is no.[18]Question 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, for the reason given at the end of paragraph 45 above.[19]Mr Hoyle submits “it is not for the Tribunal to now go in search of other breaches such as deficiencies in the appeal procedure (including any perceived delay) as the Claimant has not complained of anything which could amount to such a breach either in correspondence or in oral submissions”. I do not accept the first sentence of that submission. Mr Hamilton’s letter of 22 October does complain of the delay and in addition the failure to resolve the question of the return of Mr Kilroy’s personal possessions.[20]In my view the delay in dealing with the appeal and with the separate issue of the return of Mr Kilroy’s possessions was a part of a course of conduct comprising several acts and omissions which viewed cumulatively amounted to a repudiatory breach. Page 6 of 8 Those acts remain the conversations held between Mr Kilroy and Mrs White and Mr Almond as set out in paragraph 38 of the Original Decision. I also rely on paragraph 41 of the Original Decision which reads as follows: “It is clear beyond doubt that on or about 23 July Mr Kilroy formed the view that he could not return to the Trust and in accordance with his instructions the letter at page 150 and 153 was sent in those terms. Had this letter not been rendered a nullity by Mr Rose’s telephone call informing Mr Kilroy that he had been summarily dismissed and had Mr Kilroy then brought proceedings swiftly, in my view a claim of constructive unfair dismissal would have succeeded.”[21]Thus, in accordance with Kaur at paragraph 45 cited above there is no need for any separate consideration of a possible previous affirmation,[22]Question 5: Did the employee resign in response (or partly in response) to that breach?[23]Mr Hoyle submits correctly that on several occasions Mr Kilroy made it clear that he would not return to work most recently in Mr Hamilton’s letter of 22 October and also in Mr Hamilton’s letter of 19 September, page 220 in which he said: “It seems that those with whom our client is communicating are unaware that irrespective of the current appeal there is no question of our client returning to his former employment and as he points out to us as well as to them his personal possessions are quite separate from the outstanding issues.”[24]Mr Hoyle also correctly points out that in his Application to the Tribunal Mr Kilroy stated:- “If I were successful in my appeal my intention was to pursue my claim based on constructive dismissal.”[25]However, whilst it is clear beyond doubt that Mr Kilroy had formed the view as early as 23 July that he was determined not to return to his employment, nonetheless as Mr Hamilton says (on Mr Kilroy’s instructions see paragraph 94 of his evidence): “Nothing that has happened since (ie since 23 July) has altered the position other than to convince our client that his decision was correct.”[26]Mr Hamilton goes on: “Not only has there been the protracted delay in resolving his issue, there has also been a persistent disinclination on the part of the academy to address the matter of his personal possessions at the school and for him now to be told that after a period of more than 5 months he is to receive a final written warning and is “expected” to return to work, despite the letters to which we refer, is a continuation of an attitude which is wholly inconsistent with a normal employer/employee relationship.” Page 7 of 8[27]I therefore conclude that Mr Kilroy did, partly in response to the trigger of the appeal outcome letter, resign in response to the delay in determining the appeal and the continuing failure to deal with the issue of Mr Kilroy’s personal possessions. It can be seen from the letters of 19 September and 22 October referred to above that both issues were in Mr Kilroy’s mind and that is confirmed by paragraphs 86, 87, 88, 89, 90 and 94 of Mr Kilroy’s proof of evidence. I therefore conclude that Mr Kilroy resigned partly in response to the issues of delay and the failure to return his personal possessions. They were confirmation of the conclusion that he had earlier reached that there had been a breach of the implied term of trust and confidence.[28]The Answers to the Kaur questions are:-28.1 The Respondent’s letter of 16 October 2018 giving the outcome of Mr Kilroy’s appeal.28.2 No.28.3 No.28.4 Yes.28.5 Yes (partly in response).[29]I therefore conclude that Mr Kilroy’s claim of constructive unfair dismissal succeeds.Introduction
[30]In his written submissions, Mr Hoyle says:- “In addition, the Claimant’s significant statement at paragraph 3 of his remedy hearing witness statement case new light upon his intentions and overall approach to the situation that followed his suspension. It is apparent that he would have resigned even if he had not been subjected to disciplinary proceedings. The Respondent therefore asks the Tribunal to have Polkey in contemplation. The Claimant had three years until he intended to retire, however indicates that he was planning to leave sooner than this.” As a matter of law, Mr Hoyle is right that if there is evidence that the contract of employment would have ended at a date after the effective date of termination, then the compensatory period must end at that point. Unfortunately for Mr Hoyle, there is no such evidence. As referred to above in paragraph 5, I see nothing inconsistent in paragraph 3 of Mr Kilroy’s remedy evidence and the evidence that he gave in the first hearing.[31]Further, Mr Hoyle repeatedly put to Mr Kilroy that he had intended to retire early. Mr Kilroy’s evidence, which I accept, was that he had always intended to retire at the age of 60 and would have done so had not the chain of events which began in January 2018 which led to his dismissal and then reinstatement had not taken place. There will therefore be no Polkey deduction.[32]In summary, therefore, it would be just and equitable to make a compensatory award of £33,803.68 made up as follows:-(a) Total loss for the period 23 October 2018 to 4 April 2019 = £15,261.54.(b) Partial loss for the period from 5 April 2019 to 4 April 2020 = £18,132.14.(c) Loss of statutory rights £500. Total: £33,893.68.