Nembhard v London Borough Of Hammersmith & Fulham [1996] UKEAT 854_95_1206

EAT
Nembhard v London Borough Of Hammersmith & Fulham
[1996] UKEAT 854_95_1206 · 1996-06-12

JUDGE HULL Q.C. :

In this case, Ms Olive Nembhard was employed as a care assistant at the Southway Close Home for the Elderly by the respondents, the London Borough of Hammersmith & Fulham.Her employment began in 1988. In 1992 there was an unfortunate event when she was given a final written warning arising out of an assault on a resident. We are not concerned of course with the rights and wrongs of that, but there was a final written warning. Then on 5th June 1994, when the warning was still operative, there was an allegation that she had been guilty of unprofessional behaviour in respect of a male resident, again we are not concerned ourselves with the rights and wrongs of that, but there was a disciplinary hearing arising out of that, conducted by Mr Martin Butcher who was one of the officers of the London Borough.As a result of that, there was a finding against her and there was a letter written saying that she was to be demoted to the status of a domestic assistant rather than a care assistant, and she was to be moved to another of the Authority's homes at Westway Close. (That letter is at page 13 of our bundle). It said:
"As you will appreciate you are already under the first and final warning issued on 2nd April 1992 for a previous matter, but I have decided that you should be demoted from care assistant to domestic and not dismissed from the council's services. I am instructing David Williams, Divisional Manager, to make these arrangements with you as soon as possible."
So that was the outcome of it. An order that she should be demoted. But in fact it appears that Mr Butcher must have overlooked an important matter. Because as was found by the tribunal, and it is clear from a document put in front of us today by Mr Chronias, there was in fact a provision that such an order could be made against an employee only with the express agreement of the employee concerned. It was to be an alternative to dismissal. There can be no doubt at all that the express agreement of the employee had not been obtained before Mr Butcher wrote this letter.What did that mean? Quite clearly it was doing something which the employer was not entitled to do and in a very important respect. However, what in fact happened was that on 27th July 1994, that is to say about ten days later, and only five days after she had received the letter, Ms Nembhard in fact took up the new employment at the inferior standing of cleaner in the other residential home. She made an appeal, it is recorded by the Industrial Tribunal, she made an internal appeal and that appeal was not apparently pursued. It was, as the tribunal noted in due course, not an appeal against the penalty, but an appeal against the finding that she had been guilty of this unprofessional behaviour. Whilst the appeal was still outstanding, on 12th September 1994, she resigned. She wrote a note (which is at page 14 of our bundle):
"To whom it may concern,
I am writing to inform you that I am resigning my post of cleaner forthwith.

The reasons are your conduct in demoting me as cleaner."

Then on 5th December 1994, she issued her IT1 (page 6 of our papers) in which, she said, the question for the tribunal is:

"Whether I have been unfairly (constructively) dismissed."

She makes it clear in her IT1 that it was because of the decision to demote her.The Industrial Tribunal had to enquire into that. The employers said that she was not dismissed, she resigned. In other words, the issue was, was she constructively dismissed or not? The tribunal noted the matters which I have referred to. They say in paragraph 4, having referred to her appeal:"Her Notice of Appeal against the decision made on 18 July stated that in the meantime she wished to work as a cleaner until her appeal was heard. In the event Ms Nembhard worked between 27 and 30 July and she was then off on paid sick leave until 12 September 1994 when she resigned." [ They then quote her letter of resignation. ]5 The Applicant's case is that the Respondents have behaved in such a way to her that she was entitled to resign from her post and to claim that she was constructively dismissed. The substance of her complaint is(a) that under the terms of the Employers own disciplinary procedures that they had no right to demote her without her express agreement. [ They quote from the rule ]. ...The second ground of the Applicant's case is that the letter written to her on 18 July and informing her of the position was not delivered to her until second post on 22 July at a time when the knowledge of her demotion was known to other members of staff at Southway Close. [ She does not persist with that ground ] ... In answer to questions from the Tribunal she admitted that had she been consulted and her express permission sought in respect of her demotion she would have accepted that demotion rather than be dismissed, since to put it in her own words "she needed money with which to pay her bills".Mr Chronias says that that is quite irrelevant, it was not a case of what she would have said, but what she did say. He is right in one sense, the relevance though of that question is to illuminate what happened. Was she, and this is the point which the tribunal had to consider, implicitly accepting the demotion so that she could not later say, well I am now going to resign on the ground of that demotion, or was she preserving her position? To ascertain that important matter, they had to look at all the facts. They heard the applicant, and no doubt they did so with care, because she was representing herself. Was the reality of this situation that she was waiving the breach so to speak (using lawyers language), that she was accepting the varied contract so that she could not thereafter repudiate it, or was she simply working on under protest? It was essentially a question of fact for the tribunal to look at the reality of the situation. They say that they simply went on her evidence, the employers rested their case without calling any evidence and submitted that there was no case for them to answer. They went on:
"7 The Tribunal's decision is that the Applicant has failed to show that she has been dismissed. The Tribunal has taken account of the fact that the employers were, on the 22 July, in breach of their obligation to have Ms Nembhard's agreement before they could demote her. However, it is clear from her evidence that she would have accepted the decision to demote her rather then be faced with the alternative which was dismissal. In any event had she challenged the decision to demote her she should have done so straight away and before she started to work as a cleaner on 27 July 1994. The reality is that not only did she start to work as a cleaner on that date but she indicated in her Notice of Appeal that she was prepared to do so until her appeal was heard. The Tribunal can find no evidence that the employers acted in breach of contract in a way which would allow this Applicant to claim that the employers had repudiated their obligations to her and that the resignation therefore constituted a constructive dismissal."
As I say, it was something like two months after her wrongful demotion, if one can put it like that, that she made her intentions plain. The tribunal had to say, was the reality of this that she was going on under protest and preserving her position, or was she accepting it? On one view this wrongful demotion was in the nature of an offer, are you going to take this or not, and she was certainly entitled to treat it as that and say "no I am not". She was certainly entitled to say, if this was the reality, "I do not accept this, and I am going to complain about it if you persist in it. I will then resign on the grounds of this, and in the meantime, and subject to what I have said above, I am going on with my appeal." She did not go on with her appeal, they therefore had to say "what was the reality?". As I say, they reached the conclusion which they did.Mr Chronias has said everything that could be said on her behalf, he has shown certain selected documents to us; one of them certainly shows that the writer was under the misapprehension that she had been in fact dismissed. But that was a matter which was laid before the tribunal together with all the other evidence.We think the tribunal were entitled to conclude in the way that they did, and did not overlook any of the points which Mr Chronias has pressed on us. It seems to us that there is no point of law here which, in our view, is reasonably arguable and therefore it is our duty to dismiss the appeal at this stage and not allow it to go to a full hearing. In those circumstances we dismiss the appeal.