Fisher v Leigh [1993] UKEAT 717_91_1412

EAT
Fisher v Leigh
[1993] UKEAT 717_91_1412 · 1993-12-14

JUDGE HARGROVE OBE QC :

The Appellant, a dental hygienist, claimed that she had been constructively dismissed by her employers, who were dentists. After a hearing which lasted 5 days the Industrial Tribunal rejected that contention. The basis for the alleged constructive dismissal was said to be harassment, interference with the discharge of her duties and humiliation in front of patients in particular by an associate dentist, Mr Rome. It is also alleged that she was left in the difficult position because the senior partners in the practice, Mr Leigh Senior and Mr Leigh Junior, failed to give her any proper support for her justifiable complaints and failed to control Mr Rome.The Appellant gave evidence for most of the first day of the hearing and for a small part of the second day. The Tribunal clearly preferred the evidence of Mr Rome which they found to be convincing. The `last straw' incident as it has been called occurred when Mrs Fisher believed that Mr Rome had been obstructive in not releasing his nurse to carry out an X-ray for her. It seems that Mr Rome consulted the record card and then decided that in his judgment the patient did not need an X-ray. Mrs Fisher felt humiliated because that view was conveyed to her with something less than diplomacy and it followed two previous decisions by Mr Rome in relation to the same X-ray in which he said that there would have to be a delay of half an hour and then two hours. Mr Rome at that stage, and in his evidence, seems to have accepted that he had become considerably irritated by the fact that his work was being interrupted by repeated requests for X-rays.The finding of the Tribunal occurred in this way. They held at paragraph 10:
"The Tribunal considered whether Mr Simon Leigh and Mr Lionel Leigh had breached the Applicant's contract of employment such as to entitle the Applicant to act upon that breach and terminate her contract of employment. The Tribunal noted, and found as a fact, and, indeed, this is stated in the Applicant's Originating Application, that Mr Simon Leigh had suggested that they should talk the matter over with Mr Rome. The Applicant refused this offer because she considered that it would be useless. The Tribunal could not understand why the Applicant had refused this offer. This was a reasonable suggestion made by a reasonable employer. It was the Applicant's duty to act upon this reasonable suggestion. Mr Rome agreed that the Applicant could have felt to have been humiliated when he refused to allow her patient to be X-rayed. The Tribunal accepted Mr Rome's explanation that he consulted the record card, noted that the patient had been X-rayed some months previously and consequently did not require further X-Ray radiation. This was a clinical judgment of Mr Rome's. Even if that clinical judgment was wrong, the Applicant should have accepted that clinical judgment. Mr Rome's evidence was that he did not intend to humiliate the Applicant. He may have used the words she alleged although he could not remember having used them. He was exasperated at constantly being interrupted that morning by the Applicant wishing to have his nurse take X-rays for her. This course of conduct appears to have exacerbated over recent months. Mr Rome could not understand why she kept asking for the X-rays. He resented the interruption to his intense work. He often used to do intravenous work on patients which required not only his close attention but that of his nurse."
Paragraph 12 held as follows:
"Having considered the oral and documentary evidence, the Tribunal does not find as a fact that the Respondents' conduct was such as to breach the contract of employment such as to justify the Applicant acting on that breach and terminating her contract of employment."
The gravamen of the Amended Grounds of Appeal is that the Industrial Tribunal should have realised that the Applicant (the Appellant here) was paid on a peace-work basis. Unless she could carry out her work she did not get paid and the employers, through Mr Rome, hindered her from doing so. Further, it is said that the Tribunal failed to appreciate the duty of trust and confidence was central to the case and that there had been a breach of it by the employers in failing to co-operate with the Appellant so that she could discharge her duties to the patients. The groundswell of the appeal is that Mr Rome was the prima donna who expected others to dance to his tune regardless of their own duties or of the instructions which had already been given, so it is said, by the senior partners.In more detail it is said that the Industrial Tribunal failed to take a full and proper account of the evidence of matters prior to 30 May and placed too much weight on the final straw incident. The answer to that is that if one reads paragraph 1 of the findings:
"The Applicant was employed by the Respondents as a dental hygienist from 28 March 1982 until 16 July 1990. She averred that she was constructively and unfairly dismissed pursuant to section 55(2)(c) of the Employment Protection (Consolidation) Act 1978, hereafter referred to as the Act. She averred that Mr R Rome, an associate dentist working in the practice, constantly harassed her, shouted at her, prevented her from performing her duties correctly, and continually humiliated her in front of patients."
In our view that certainly was not limiting the view of the Tribunal to the "last straw" incident on 30 May. There is no indication that the Tribunal failed to take account of the evidence. It must be emphasised that in weighing that evidence and the particularity that the Tribunal uses in setting out its decision, is entirely a matter for the Tribunal and is not a matter which this Court can utilise to overturn a decision.Secondly it is said that insufficient weight was given to the question of trust and confidence between the parties having been destroyed. A series of some 9 matters of complaint are raised and pursuant to those we have considered over 40 passages in the evidence placed before us by Mr Shale. We do not intend to go through each and every one of those items suffice it to say in our view it would be impossible for a Tribunal of this experience to have looked at this matter without taking account of questions of trust and confidence. It seems to us that although it was not dealt with specifically in those terms, nor in defence of the Tribunal must it be said was the matter put to the Tribunal in those specific terms, but under the heading of Unjust Humiliation and Harassment it is inconceivable that those matters did not pass through the Tribunal's mind and was not a matter of consideration by the members.Next it is said that the Tribunal was incorrect to accept Mr Rome's evidence rather than that of the Appellant and her witnesses. It is said that the touchstone of that error can be seen from the fact that a number of persons who had been employed for a greater or lesser period of time appeared before the Tribunal and (I paraphrase the matter) indicated that Mr Rome was impossible to work with. The Tribunal mentions, without identifying, witnesses being economical with the truth but on the other hand they did find that Mr Rome was a person that they could believe. The Tribunal saw all the witnesses, was able to make a judgment over a prolonged period of time and there was ample justification for the conclusion they reached.There is an objection by the Appellant to the decision by the Tribunal that matters after 30 May should not have been in evidence. One particular matter, which is put forward as being unfortunate from the point of view of the Appellant is this. Paragraph 11 of the Decision reads as follows:
"The Applicant appears to have been disappointed that she was not given the opportunity to reconsider her resignation. It was Mr Lionel Leigh's and Mr Simon Leigh's view that if she wished to leave she should be allowed to leave. If she wished to be dissuaded as to her resignation, the Tribunal could not understand why she then considered that Mr Rome's conduct was such as to justify her handing in her resignation. Mrs Fisher cannot have it both ways."
It is said there that first of all what has been taken into account is the facts and matters which occurred after 30 May and taken into account adversely to Mrs Fisher, but she was debarred from giving evidence on her side as to matters which she considered relevant. In our view the Tribunal, in the exercise of its right to carry out its own procedure in its own way, was justified in reaching that conclusion and we see nothing to criticise in it.Finally it is said that it was perverse to reach that conclusion as set out in paragraph 11 above. Again, in our view, it is an inference that the Tribunal was entitled to draw and a similar observation applies to the final paragraph of the revised Notice of Appeal.In those circumstances this appeal fails and is dismissed.