Blackwell v St Dunstan's Middle School [1993] UKEAT 607_92_0705

EAT
Blackwell v St Dunstan's Middle School
[1993] UKEAT 607_92_0705 · 1993-05-07

JUDGE N HAGUE QC:

There is before us an appeal by Mrs Blackwell against the decision of an Industrial Tribunal which dismissed her claim that she had been unfairly dismissed by the Respondents, St Dunstan's Middle School at Woking, where she had been employed as a teacher. The case is one of constructive dismissal because she was asked to undertake different duties which she did not wish to do and it is common ground that she effectively her notice and resigned. In such a case the employee has to prove that there has been a constructive dismissal, which involves showing that the employer has been in breach of the contract of employment. The relevant term of the contract of employment in this case, which was in writing, provides that a Teacher:" . . . shall perform in accordance with any directions which may reasonably be given to him by the Head Teacher from time to time such particular duties as may reasonably be assigned to him . . . . .".Mrs Blackwell was an experienced and no doubt a very capable teacher. She was aged 57 at the date of her resignation, and she had for many years been teaching the pupils in the second year class. In 1990 it became apparent to Mr Grady, who was the Headmaster of the school, that there were going to be problems about staffing the various forms in the school. He had advertised for teaching staff to fill vacancies which were occurring. He had had a very poor response and he had something of a crisis on his hands. In particular, he had a crisis in respect of the fourth year pupils because he had no suitable person available to be the teacher for that particular year. So he asked Mrs Blackwell if she would be prepared to take the fourth year. We think it is really quite plain from the whole history, which is set out in some detail in the Industrial Tribunal's decision, that Mr Grady considered that Mrs Blackwell would be the most suitable person to do that. It may be that there were other possibilities open to him (we will come back to that in due course), but clearly he was at pains to try and persuade Mrs Blackwell to move to the fourth year. She was very reluctant, and indeed really refused, to do that for a number of reasons. Mr Grady then offered her, by way of a compromise, that she might go the first year. We have got no detailed explanation of what would have happened on a re-shuffle between the teachers if that had occurred.There were various meetings and letters between Mrs Blackwell and Mr Grady. Her husband Mr Blackwell also met Mr Grady, together with one of the Governors, and explained in some detail it appears about his wife's medical problems and the history of an accident she had had. In the end, however, Mr Grady decided that he would post her to the fourth year. It was at that point that she effectively resigned.The Industrial Tribunal gave its decision on 26th April 1991, and it has been pointed out to us that the Full Reasons were not made available for some long time, over a year, afterwards. That is regrettable but we really do not think it can affect the position. The Full Reasons given are detailed and it is quite clear that the various objections which Mrs Blackwell had to her moving to the fourth year were all considered by the Tribunal. At the end of the day, however, after going through her various reasons and making comments on them, the Industrial Tribunal concluded in paragraph 26:
"We therefore reject the applicant's case that the school acted in an intransigent and unreasonable manner. We are satisfied that Mr Grady acted with all proper consideration for the Applicant within the needs of the school and its pupils. We therefore hold that the respondents did not act in breach of the applicant's contract of employment and that the applicant was not constructively dismissed."
That finding, as it seems to us, was basically, a finding of fact. The Industrial Tribunal found that on the facts, which are considered with some care, that Mr Grady had not acted unreasonably. In other words, his directions that she should teach the fourth year were reasonably given, and the duties assigned to Mrs Blackwell were reasonably assigned, having regard to the needs of the school, when balanced against her objections (which one has a good deal of sympathy with).It is trite law that there is only an appeal to this Appeal Tribunal on a point of law. This Tribunal is not allowed to go over the facts again and say that the Industrial Tribunal took a wrong view of the evidence and make a wrong decision on the facts and that its decision should be reversed for that reason. There is no power in this Appeal Tribunal to do that and so prima facie, it is very difficult for a person in Mrs Blackwell's position to succeed on an appeal where the Tribunal has come findings of fact, and it is really the findings of fact which are challenged.There are grounds upon which this Appeal Tribunal can interfere. One of them is where the Tribunal has taken something into account which it should not have taken account or has failed to take something into account which it should have taken into account, but it seems to us that this Industrial Tribunal took on board, and dealt with all the objections which Mrs Blackwell had put forward, and balanced those in a proper way against the needs of the school which Mr Grady, of course, had to consider. There is no ground, in our view, for interfering with the decision of the Industrial Tribunal on that ground.Another ground, which is of extremely limited application and the subject of some controversy, is that the Appeal Tribunal may, in extreme cases, interfere with the decision of the Industrial Tribunal on the ground of perversity. That is if the Industrial Tribunal has come to a decision which no reasonable Tribunal could possibly have come to. Mr Hows submitted that when taken in the round, and not looked at individually, Mrs Blackwell's grounds were sufficient to amount to perversity in the finding of the Industrial Tribunal. With all respect we think that that submission fails by a very long way. As we have said, it is only in very extreme cases that perversity is likely to succeed, and this is nowhere near such a case.Mr Hows' main point and, if we may respectfully say so his best point, was to this effect. He said the Tribunal asked themselves the wrong question. In paragraph 21 of their decision the Tribunal say that Mr Grady explained in some detail the staffing position, and they accepted his case that it was in the interests of the school to fill one of the two four year vacancies with a senior and experienced teacher. That finding could not be and is not challenged, but, says Mr Hows, that is not the point. The point is that the employers and Mr Grady, had to show was that they were acting reasonably in selecting Mrs Blackwell to fill that particular vacancy. He says that they did not really consider that. He points to the fact that as a second best option, which Mr Grady offered in the early stages at any rate, he wished her to go to the first year. Therefore says Mr Hows, there were clearly other options open to Mr Grady and it was not proved that it was reasonable to move Mrs Blackwell rather than somebody else to the fourth year. We see the point but we do not agree with it. We do not know quite what the arrangements would have been if Mrs Blackwell had accepted the proposition that she go to the first year. From Mr Grady's point of view it is perfectly plain, we think, that it was very much a second best. But the suggestion that there might have been somebody else and that there might have been other arrangements Mr Grady could have made for filling the fourth year vacancy was never made to the Industrial Tribunal. Mr Hows says it is not up to Mrs Blackwell to make it, it is up to the employers to prove their case and to prove that they had been reasonable in selecting Mrs Blackwell for this particular post. It is true that the onus is on the employers and so far as that goes we would agree with Mr Hows. But it is quite plain that there had been very considerable discussions between Mr Grady and Mrs Blackwell, and, as we have mentioned, Mr Grady explained in some detail the staffing position of the school to the Tribunal. There is not a breath of suggestion that Mrs Blackwell was unfairly discriminated against and that there was some other suitable person who could have fulfilled that position. We think that having regard to the way the matter is dealt with by the Tribunal, to the way in which Mrs Blackwell's representative Mr Carr put his submissions (which are set out in paragraph 19 of the Industrial Tribunal's decision) the suggestion, although ingenious, is not a realistic one.For those reasons, despite the very able and helpful arguments put forward to us by Mr Hows, we do not think that this is a decision which this Appeal Tribunal can possibly interfere with, and we therefore dismiss the appeal.