Miller v Aldwick Parish Council [1994] UKEAT 364_93_0512

EAT

Miller v Aldwick Parish Council

[1994] UKEAT 364_93_0512 · 1994-12-05

MR JUSTICE HOLLAND: We have before us an appeal by the unsuccessful Applicant against a decision of an Industrial Tribunal sitting at Southampton on 10, 11 and 12 March 1993.

At the conclusion of that hearing, the decision was as follows:

"The unanimous decision of the Tribunal was that the applicant was not constructively dismissed by the respondents and accordingly this application fails and is dismissed."

That decision was arrived at at the conclusion of the evidence called for the Applicant. At that stage, Counsel for the Respondents made a submission that effectively there was no case to answer and it was on the basis of that submission that that decision was arrived at.

The facts underlying this matter are somewhat unusual. From 19 December 1985 to 3 August 1992, the Applicant was the clerk to Aldwick Parish Council. That position is paid and it is part-time. It was underpinned by a contract of employment in writing made 19 December 1985. That contract included by clause 10 the following:

"10. REDRESS OF GRIEVANCES

The Clerk may apply in writing to the Chairman for the time being of the Council for redress of any grievance relating to her employment, or if she is dissatisfied with any disciplinary decision relating to herself, and the Chairman shall report any such application to a duly convened Meeting of the Council and the matter shall thereupon be discussed and resolved by the Council after giving the Clerk an opportunity, if she so wishes, to explain either personally or by a representative present with her, her application orally to the Meeting. The Council shall consider any such application in the absence of the public and the press. Subject to the provisions of the Scheme of Conditions of Service referred to in Clause 8, if the Clerk shall be dissatisfied with the Council's decision and if any part of the matter brought before the Council under this clause concerns the interpretation of any of the clauses herein, part of the dispute shall be referred in writing to the National Association of Local Councils and the Society of Local Council Clerks and their joint decision shall be binding upon the parties hereto."

There was before the Industrial Tribunal a preliminary issue as to whether the post of Clerk to this Parish Council constituted an office or an employment. That initial issue was resolved in her favour, that is, resolved on the basis that there was an employer-employee relationship. There has been no appeal against that finding and we would have been surprised if there had been.

Turning then to the problem that gives rise to these proceedings, it is common ground that at all material times there were tensions within this Council concerning the position of the Applicant, which tensions were long standing. In essence, there were amongst the Councillors those who found themselves at issue with her namely, Councillor Mr Wolforth, Councillor Mrs Wolforth and Councillor Joiner. There seems little doubt but that those three persons did not take kindly to the way in which the Applicant carried out her duties and, in the result, there were problems which arose at various meetings which certainly must have made the despatch of the public functions of the Council difficult. Such tension cannot have been lessened by the fact that the Applicant's husband was another member of the Council.

With that introduction, one then turns to what essentially is a tale of three meetings. On 6 July 1992 there was a meeting of the Finance and General Purposes Committee, which was chaired by Mrs Blake. In the course of the proceedings on that day, there was an item which related to certain queries or challenges concerning that year's Audit. As recorded in the Minutes, it reads as follows:

"The Clerk reported on attending at the Auditor's and having been informed that two queries/challenges covering 6-8 separate matters had been received from Cllrs. Mr. Joiner and Mr. Wolforth. The details would be confirmed in writing by the Auditor's within the next few days.

The Clerk informed the Meeting of the consequences both legally and financially of success or failure in answering to the Auditor and advised the Committee that the Council should consider taking legal action in order to recover the costs which would fall upon the Council (Additional Auditor's Fees accruing from the time of [when] they were contacted by the two Councillors/telephone/postages/Clerk's hours)."

It would seem that at this stage at this meeting, the Clerk, that is, the Applicant, gave advice to the meeting, which advice was plainly bold and which now, with the benefit of hindsight, appears to be wrong. The effect of the advice was that Councillor Mr Joiner, Councillor Mr Wolforth and Councillor Mrs Wolforth should leave the meeting in that they had been apparently concerned in the query or challenge to the audit. It may well have been, again with hindsight, that the matter could have been simply resolved by those three persons declaring an interest and remaining; whether that be right or not, that was what happened: all three did leave.

There then came after that meeting the problem of the Minutes to record these events and as to that the Applicant, as Clerk, made a draft of the Minutes, which draft was circulated in the usual fashion. It also seems that following that meeting, Councillor Mrs Blake, who had been in the chair, plainly had some concern about the way in which she had conducted the meeting and, in the result, she prepared a short statement reflecting her view of her conduct on that day and that statement came to be considered at the second of the meetings that the Tribunals both here and below are concerned with and that is the meeting, this time of the Council, of 23 July. This latter meeting was chaired by Councillor Mrs Horwood. There came a stage in this second meeting at which Mrs Blake made her statement. In its original draft, the statement read:

"After reconsideration of what occurred at the F&GP Meeting of 6th July 1992, I feel I should have asked the Clerk to explain more fully the implication of the Local Government Finance Acts before three Councillors left the Meeting on the Clerk's advice.

As Chairman of the meeting, I wish to express my regret that the incident occurred and I apologise to the Councillors concerned."

The making of this statement appears to have initiated an acrimonious passage, particularly centred upon Councillor Mr Joiner, who seems to have seized the opportunity to address the Council Meeting about his view of the Applicant.

Moving on in the chronology from that particular meeting, there were subsequent developments. First, the Applicant, as Clerk drafted Minutes of that Council Meeting and we are told that the Minutes as she drafted them are at A13 in our bundle. Those Minutes set out the statement in the terms already set out in this judgment and then continue:

"Cllr. Mr. Joiner expressed his opinions to the Council regarding the Audit and the Clerk's advice.

It was RESOLVED that Cllrs. Mrs. Blake, Mrs. Horwood, Mr. Jones and Mr. McEwan, plus possibly a District Councillor, get together with Cllr. Mr. Joiner to talk about the matter.

It was RESOLVED not to forward responses to the Auditor until after the meeting with Mr. Joiner, but to inform the Auditor that the matter was being looked into and that a reply would be forwarded in due course."

Her further step was to write two letters. Each letter was dated 31 July 1992 and each letter was addressed to Councillor Mrs Horwood as Chairman of the Parish Council. The first letter in our bundle starts off:

"It is with regret that I apply to the Council to redress my grievance in respect of the conduct of the Council at its Meeting on Thursday 23rd July 1992.

The Council as my employer has undertaken to protect me and both my private and professional reputation and to ensure that any allegations against me are properly investigated, with an opportunity afforded to me to put my case either in person or with a representative. These obligations are known to all Councillors, being set out in their `Green Book' which contains the Parish Council Standing Orders, Code of Practice for Handling Complaints, and the National Code of Local Government Conduct.

The specifics of my Grievance are as follows:

1. That I was not given notice that Cllr. Mr. Joiner was to raise a complaint against me (as required by Standing Order 72 and the National Code of Practice para 3), thereby depriving me of the opportunity to prepare an answer.

2. That at the Parish Council Meeting of 23rd July 1992, the Council did permit Cllr. Mr. Joiner to publicly criticise and disparage my conduct as Clerk in contravention of Standing Order 34, without any attempt by the Chairman or Members to remind him of the correct procedures and ensure that he did not continue speaking in contravention of these procedures.

3. That having permitted Cllr. Mr. Joiner to make his allegations, that the Council did not afford me the opportunity to refute them, thereby allowing me to be disparaged in front of the public and my employers. Further, by virtue of this not being declared Confidential Business, there is no restriction on anybody present speaking or writing to my employers, clients or press and thus disadvantaging me in my business dealings outside the Aldwick Parish Council.

In order to Redress my Grievances I would ask the Council to:

A. Issue a public apology to me on all three counts.

B. Give me an assurance that this incident will not be permitted to represent a precedent in respect of the future conduct of the Council towards its Clerk.

C. Discuss with me and subsequently Resolve the procedures and time scale within which I may bring to the Council evidence of any financial loss occasioned by the conduct of the Council on 23rd July 1992 and for which I might seek compensation."

The penultimate paragraph then reads:

I must emphasise that I in no way wish to prevent Cllr. Mr. Joiner or any other Member from exercising the right to bring criticisms to the Council regarding my conduct. So far as the treatment of my complaint against the conduct of the Council is concerned, it is immaterial whether Cllr. Mr. Joiner's allegations were justified or not. My concern is that he chose to make his allegations in a way which is not permitted by the Parish Council and that the Parish Council did not take any steps to prevent this happening."

The parallel letter was in broadly similar terms but it was expressly aimed to make a formal complaint for the purposes of the grievance procedure against Councillor Mr Joiner. We need not burden this judgment with the full text of that letter, save to note that in the penultimate paragraph it reads:

"In closing I must thank you, Madam Chairman, for your efforts on my behalf in trying to secure an apology from Cllr. Mr. Joiner and thus avoid the need for me to place this grievance before the Council."

We interpose: plainly and very properly the Applicant, as Clerk, was invoking the redress of grievance procedures provided for in her contract of employment.

On 3 August 1992 before, as is common ground, that grievance procedure got under way, there was the third of the meetings that is the subject of this application. That was a meeting of the Finance and General Purposes Committee, held on 3 August 1992, with Mrs Blake again acting as chairman. The meeting started in the familiar way with the motion as to whether the Minutes could be signed as a true and accurate record of what took place at the previous meeting, that is, at the meeting of 6 July. It is plain that this gave rise to a rancorous debate in which those aggrieved by what had happened at the previous meeting, seized the opportunity to say a lot and to say it forcefully. Looking at the Minutes, it started with a motion to add to a part of the draft Minutes:

"The Clerk stated she was conducting this part of the meeting and not the Chairman" .

We understand that when that proposal was put to a vote it was lost. That took the meeting from 8.15 pm to 8.25 pm. The meeting was then suspended and we gather that development reflected the heat of the debate. It was then resumed at 8.31 pm and the second proposal was put to the meeting, which proposal was to this effect: in the draft Minutes should be inserted the words:

"Cllrs. Mr Joiner (not a Member of the Committee), Mr Wolforth and Mrs Wolforth left the Meeting when told to do so by the Clerk" .

There was a vote as to this issue and in the result the motion was carried with there being six Councillors voting for the proposal and two Councillors voting against. In the further result at a subsequent date that amendment was introduced into the Minutes by means of a handwritten addition initialled by Mrs Blake. Unhappily, the rancour of this part of these proceedings was such that the Applicant left the meeting at 8.36 pm and, in the event, thereupon gave up her duties. To complete the record, it is noted that the meeting was suspended at 8.31 pm. It resumed at 8.41 pm with one of the Councillors present undertaking to prepare Minutes of what then happened.

Following that unhappy occasion, there are various other subsequent events. First, as we have noted, there was the alteration made to the Minutes relating to the meeting of 6 July. Second, it would seem that a fresh draft was prepared of the passage quoted from the Minutes of the meeting of 23 July, which involved a material difference. In place of the terms already set out in this judgment, certain words were omitted. In the result, the fresh draft read:

"After reconsideration of what occurred at the F&GP Meeting of 6th July 1992 I feel I should have asked the Clerk to explain more fully the implications of the Local Government Finance Acts before three Councillors left the Meeting.

As Chairman of the Meeting, I wish to express my regret that the incident occurred and I apologise to the Councillors concerned.

Cllr. Mr. Joiner expressed his opinions to the Council regarding the Audit and the Clerk's advice and then offered an apology.

It was AGREED that the matter be discussed separately with Cllr. Mr Joiner before a reply was made to the auditor."

These variations came up for sustained discussion at the next meeting of the Council, held on 24 September 1992 when there were a number of proposals put to the vote concerning that particular draft. Those motions failed and so the draft became that which we have set out last in the course of this judgment.

We then, therefore, turn, in the light of that chronology, to the way in which this complaint was brought to the Industrial Tribunal. The essential case was to the effect that the conduct of the Council on 6 July and on 3 August at those two meetings was such as to evince an intention to repudiate the contract of employment, which repudiation she properly accepted by leaving the meeting on 3 August and, thereafter, giving up her duties. The conduct of the Council was therefore such to amount to constructive dismissal.

The Industrial Tribunal summed up what it understood to be the issues as follows:

"3. The applicant's case is put in three ways. She complains of three matters with which I will deal in detail in a moment. First of all she complains that a minute of a Council committee meeting was passed in a way and in terms which did not accurately reflect what had happened at the meeting and which undermined her position. Secondly, she complained that at a full meeting of the Council on the 23 July, one councillor, a Mr Joiner, criticised her in a way which was improper and which should not have been permitted and that the Chairman of the meeting should have taken immediate steps to advise Mr Joiner that there were proper procedures which the Council had laid down and adopted whereby any complaint about the Clerk would be dealt with in the correct way and that failure to do so on the part of the Chairman undermined the position of the Clerk. Her third complaint was that at a committee meeting on the 3 August 1992 a remark was made by a councillor whereby he called the Clerk a liar and the failure of the Chairman of that meeting to immediately disassociate the parish council from that remark and to advise the councillor concerned of the appropriate way in which he should bring that complaint to the Council again undermined the position of the applicant. We observe and remind ourselves that in considering the submission that has been made to us we have only heard the live evidence of the applicant and her witnesses. Save for one witness of peripheral matters, we have heard no evidence from the respondents."

4. The legal position is that Section 55 of the Employment Protection (Consolidation) Act 1978 says at sub-section 2 thereof that an employee should be treated as being dismissed by his employer if, and only if, the contract is terminated by the employer with or without notice or if a contract under which he is employed for a fixed term expires without being renewed or if the employee terminates the contract with or without notice in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct' and it is that third limb which is conveniently labelled `constructive dismissal'. Guidance has been laid down by the Court of Appeal in the case of Western Excavating (EEC) v Sharp

1978 ICR 221

whereby we are advised that constructive dismissal must involve a repudiatory breach of contract. Lord Denning is quoted as having said in that case `If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows an intention no longer to be found by one or more of the essential terms of the contract then the employee is entitled to treat himself as discharged from any further performance. If he does so he terminates the contract by reason of the employer's conduct. He is constructively dismissed'. The applicant's case is that, as I have indicated, by reason of the failure of the Council to support her in the matter she alleged, the employer, the Council, has been guilty of a significant breach of the contract going to the root of the contract but what term is it that may have been breached? It was put to us in argument that on the basis of the case of Wigan Borough Council v Davies

1979 ICR 411

a contract of employment has an implied term in it that the employer will act fairly towards the employee and we certainly would accept that as encompassing the situation whereby the employer should give support to the employee if steps appear to be taken improperly or unfairly or unjustifiably to undermine his position."

There has been no complaint made by the Applicant who is, here, the Appellant, as to the directions as to law therein adopted by the Industrial Tribunal and, for our part, we would endorse that resumé of the principles appropriate to that with which that Tribunal was confronted, namely, an allegation of constructive dismissal.

Turning then to the three issues identified by the Industrial Tribunal, they were dealt with as follows. First, so far as the complaint about the Minute of the Council committee meeting, that is, the Minute of the meeting of 6 July, the Industrial Tribunal essentially took the view that the accuracy of the Minute was a matter for the Council itself, hence the need to put a motion to the Council for its vote and that given that the Council had reached a decision about it, then that decision could not be impugned. Further, and, more importantly, it could not thereby evince an intention by the Council to repudiate the contract of employment of the Clerk. Plainly, it lies within the power of the Council to disagree with the Clerk as to what transpired at the meeting covered by the Minutes. Were that not to be the case, then there would be no point in putting the Minutes to the Council by way of a motion for approval.

Turning to the second allegation, that is, that which related to the full Council meeting of 23 July, the Industrial Tribunal found itself unable to be satisfied with the evidence of the Applicant as to what had transpired at that meeting and, in particular, what it was that Mr Joiner said. Having been unable to make any such finding in favour of the Applicant, it considered itself relieved from the burden of going on to deal with the full complaint that was made under that head. We shall return to this matter later in this judgment.

Finally, dealing with the complaint that was based upon events at the Committee Meeting of 3 August, the Industrial Tribunal took the view, first, dealing with what Mr Wolforth was alleged to have said, that that was merely the remark of an individual Councillor and that the Industrial Tribunal was concerned not with the conduct of an individual Councillor but with the conduct of the Council as a whole. An individual Councillor could not, by definition, repudiate a contract of employment of the Clerk to a Council; that could only be done by a Council.

Turning to the role of the Council Chairman, it noted her inexperience. It noted the fact of the cut and thrust of debate and decided that, in those circumstances, any failure on her part to take immediate steps to deal with the situation could not amount to a repudiation of the contract of employment.

Having thus reviewed the way in which the Industrial Tribunal approached the matter, we come in our turn, to the grounds of appeal. The first ground of appeal is as to whether the Tribunal could reasonably have come to its final conclusion without hearing evidence from the Respondent. As to this, we are entirely satisfied, having regard to the authorities that have been put before us, that a decision to respond to a submission of "no case" by and Industrial Tribunal, must reflect the particular circumstances of the case.

Turning to the instant situation, this Tribunal had had evidence for no less than two days. That evidence had been, principally, evidence from the Applicant and her husband. it had, somewhat surprisingly, included evidence from Mr Joiner himself. Given the essential concern as to whether in the course of the three meetings, there had been evinced an intention on the part of the Council to repudiate the contract of employment, then in the view of this Tribunal, the Industrial Tribunal was in a proper position to take a final view about it and, indeed, one may ask, rhetorically, what further evidence was necessary to bear upon the essential issues? The relevent material all been put before the Tribunal at some substantial length. In the view of the Tribunal, it was amply within the discretion of this Industrial Tribunal to deal with the issues on the basis of the evidence that was then before it.

We then turn to ground two. That reads:

"Whether the Tribunal failed to apply the correct test of the reasonable employer in paragraph 7 when it took into account the relative inexperience of the Parish Council Chairman."

In the judgment of this Tribunal, the Industrial Tribunal was entirely correct to take into account the relative inexperience of Mrs Blake as the Chairman, not of the Parish Council but of the Finance and General Purposes Committee, in the context in which it was relevant. That context related to the flow of events on 3 August. As this judgment has pointed out, that which is impugned occurred in a relatively short space of time and the question arises as to whether, during that short space of time, and in the face of what was happening on the floor, the conduct of the Chairman should be taken to have evinced an intention on the part of the Council as a whole, to repudiate the Clerk's contract of employment.

It seems that at no time during that period did the Applicant, as Clerk, advise Mrs Blake as to what to do. Thus, the Industrial Tribunal was concerned with the conduct of Mrs Blake as chairman in the absence of any advice as to what to do in the face of the onslaught from the floor. Plainly, if she had been experienced, it might have been possible to infer that her conduct was evincing some intention on the part of the Council as a whole, although, we hasten to add, that would have been an extreme finding. However, given that she was inexperienced, then plainly the Industrial Tribunal was right to find that no inference at all could be drawn from her failure to bring the proceedings into check. Given that she was not advised, she was then thrown back on her own knowledge of procedure that made it materially relevant in a factual sense that she was inexperienced.

The third ground is:

"Whether there was any or sufficient evidence upon which the Tribunal could reasonably make certain findings of fact upon which the Tribunal decided to dismiss the applicant's claim namely certain findings of fact contained in paragraph 6."

This ground of appeal relates to the finding in connection with the second head of complaint that it could not accept Mrs Miller's account of what transpired at the meeting of 23 July.

We accept that that was a surprising conclusion, albeit that we remind ourselves immediately that we did not have the benefit of hearing evidence and that the function of this Industrial Tribunal was to do that and make findings. It may be that the Industrial Tribunal was not assisted by the rather extraordinary step, in forensic terms, of calling Mr Joiner to give evidence for her. One says "extraordinary" because it seems that Mr Joiner had not given the solicitors for the Applicant any statement, that is, any reason to believe that he might assist the proceedings. He could only be examined in chief and, hardly surprisingly, he did nothing to assist her case whatsoever. Equally, without surprise, the position was not further illuminated by cross-examination. It may well be that the Tribunal would have been better assisted if Mr Joiner had not been called and if his evidence had been left to be adduced, if such were thought fit, by the Respondents. Had that been the case, then there would not have been any, as it were, muddying of the evidential waters.

There is, however, a further point which goes to deal immediately with this aspect of the case, which only emerged, as far as this Tribunal is concerned, in the course of this afternoon, because it was only after lunch that we learnt that on 31 July the Applicant, as Clerk, had invoked the grievance procedure. We were told candidly by Mr Doughty that in the four days that elapsed between 31 July and 3 August there had been no time to put the procedure into force. Thus it was, that on 3 August the procedure was still pending and unresolved. Given that the procedure was pending and unresolved, there does not seem to be any place whatsoever for the second complaint in a case alleging constructive dismissal and it is fair to the Applicant to point out that that complaint never featured in her IT1. Somehow it got put before the Industrial Tribunal, who do not seem to have addressed themselves to the significance of the invoking of the grievance procedure, quite possibly because, as with this Tribunal, that fact was not put before it. We only discovered this by doing our own questioning in the course of examining the documents. By invoking the grievance procedure, the Applicant was evincing a belief that the contract was in force and therefore not repudiated by the behavior complained of.

One then comes to the penultimate ground of complaint and that is alleged misdirection as to the evidential status of the Respondent's Minutes in that the Tribunal allegedly refused to accept challenges to their veracity without hearing from the Respondent. As to this, the Tribunal had plain evidence that the Council had applied its mind as a Council, to the content of the Minutes and had voted as a Council to correct them. It is difficult to think of a better expression of the Council's views as to the Minutes and whereas plainly it had considered a continuing issue between the Respondents and the Applicant as to the course of events and the extent to which the Minutes reflected those events, there is no reason to think that it did not apply its mind properly to that matter.

Then, it is said that the Tribunal failed to have regard to give proper weight to the fact that the Council had in the past given the Applicant support in the form of votes of confidence. It may well be that this does not feature in the Reasons but so far from being a point in favour of the Applicant, it is a point in favour of the Respondents. It plainly demonstrates the willingness of the Council if the proper procedure was invoked to give support when the Council thought it fit to do so.

The next matter that is raised is the passing of Minutes which had been altered. It is certainly true that there appears to have been a second draft of the disputed Minutes prepared, which draft came up for debate at the meeting of 24 September. We are not in a position to make any particular comment about that rather unusual state of affairs but suffice it to point out, given that all this happened after the contract was repudiated, if repudiated it was, then it could not reasonably bear upon the decision of the Industrial Tribunal.

Finally, it is said that the Tribunal failed to give any weight to the fact that Councillor Wolforth had called her a liar. As the Industrial Tribunal itself pointed out, Councillor Wolforth is not the Council, he is merely an individual Councillor and what the Industrial Tribunal was concerned with was the conduct of the Council itself.

In the overall judgment of this Tribunal there is absolutely nothing in this appeal at all and that it must be dismissed.

Before parting from it, we are driven to point out the disquiet that we have felt as to the way in which this appeal has proceeded. The judgment of this Tribunal, voiced by all three Members, is this: that had the papers been in proper order, had the submissions been properly presented, then this whole appeal could have been dealt with in full certainly before lunchtime. As it is, we have had to spend prolonged periods outside this Tribunal room, whilst elementary steps were taken to put the papers into a form in which we could even follow the arguments. Yet, further, we found ourselves having to work very hard indeed, groping around, trying to find exactly what the facts were and what the issues were. For the Tribunal itself to discover that there was current grievance procedure, by using its own detective work, simply will not do. It reflects an unhappy failure to put tackle in order and to give to this Tribunal the help it needs to resolve this matter. One hopes that that fact was put before the Industrial Tribunal. One is rather alarmed to find that it does not feature at all in the reasons and it may be that that Tribunal, like this one, was not advised about this and, in those circumstances, it unfortunately did not follow the same course that led to that fact being unearthed in the course of argument.

We regret having to make those comments but we all three feel rather strongly about the way in which this matter has progressed today.