Jackson v Birmingham City Council [1997] UKEAT 688_96_0602

EAT
Jackson v Birmingham City Council
[1997] UKEAT 688_96_0602 · 1997-02-06
MR JUSTICE KIRKWOOD : This is an appeal by Mr Jackson, the Appellant, from the decision of an Industrial Tribunal sitting at Birmingham on 7 December 1995 and 6 March 1996, dismissing his complaint of unfair dismissal. The decision was promulgated on 13 May 1996.I must make clear that this appeal is not a re-hearing. This Appeal Tribunal can only interfere with the decision of the Industrial Tribunal if it is demonstrated that the Industrial Tribunal made a material error of law, or that its finding was perverse.The Appellant was employed by Birmingham City Council, the Respondent, as a Senior Social Worker. In short, the Appellant complained that he was dismissed on 3 May 1995 and that his dismissal was unfair. The Respondent contended that the Appellant's contract of employment was terminated on 19 June 1995 and that it was fair.Having made findings of fact, the Industrial Tribunal dealt with those rival contentions in this way:
"4 It must, in our judgment, be clear from that detailed recital of the history of this matter that this complaint of unfair dismissal is utterly devoid of merit. The only criticism that can possibly be levelled at the respondents is that they took so long to dismiss Mr Jackson. Mr Jackson's repeated assertion in evidence that he had not refused to return to work and had not refused to attend meetings, demonstrates a worrying degree of self-deception in one whose profession is social work. It is not necessary for us to consider the law other than to remind ourselves of the terms of Section 57(3) of the Employment Protection (Consolidation) Act 1978.
5 No employee, certified as fit for work, who refuses a sequence of instructions to return to work and who fails to attend meetings to discuss matters and refuses to co-operate with a disciplinary enquiry can expect anything other than dismissal. Therefore whether Mr Jackson resigned on 15 June 1995 or was dismissed on 3 May 1995 is immaterial. If he was dismissed it was manifestly fair; if he resigned it was manifestly not a constructive dismissal. If we are compelled to determine the precise date and cause of the termination of his employment with the Respondents it is that he was dismissed by them on or about 19 June 1995 when they accepted his repudiatory breach of contract in refusing to co-operate with the disciplinary enquiry and asserting that he was no longer an employee of the Department even though he continued to accept his salary. That dismissal was for a reason which related to his conduct, a permissible reason under Section 57(2) and was not merely fair, it was inevitable."To put that into context it is necessary to say something about the background. I have indicated that the Industrial Tribunal made findings of fact. Indeed, the Tribunal made comprehensive and detailed findings of fact, and expressed its own clear findings upon those facts. Those findings occupy six pages in the Industrial Tribunal's Full Reasons and it would over-burden this judgment to read all of them into it. I shall summarise the earlier part. Anybody reviewing this judgment, however, would undoubtedly be assisted by reading all of the Industrial Tribunal's findings.It appears that the Appellant had had some discontent with his job since 1991. In April 1994 he succeeded in a complaint to an Industrial Tribunal under The Wages Act 1986 . The monies due were paid and the breach rectified.The Appellant did not attend for work after 18 May 1994. He said he would suffer stress if he did so. He was suspended on full pay to await the outcome of a medical examination by the Respondents Occupational Health Unit.On 5 October 1994 the Appellant was certified fit to return to work. On 7 November 1994 Mr Judges, the Assistant Director of Social Services, wrote to the Appellant offering him a new post. The Appellant had not wanted to return to his former post.On 21 November 1994 Mr Judges met the Appellant. The Appellant did not want to take up the post offered. It was to work with the elderly whilst his expertise lay with children. Mr Judges agreed to look for a suitable vacancy. The Appellant said that he wanted to develop his career towards a management post and expressed concern at a possible return of his stress related illness. Mr Judges agreed that the Appellant could have the necessary time off work for his blood pressure to be checked periodically as advised by the doctor at the Occupational Health Unit. Mr Jackson made a range of demands which the Industrial Tribunal set out.On 20 December 1994 Mr Judges offered the Appellant a choice of seven vacancies in the Children and Families Division. He asked for an answer by 5 January 1995 and he would then arrange a meeting with the appropriate Area Manager. On 23 December 1994 the Appellant said he wanted to see the doctor again before making a choice.On 23 January 1995 the doctor confirmed that the Appellant was able to carry out normal duties but should be reviewed in three months. The doctor advised fortnightly blood pressure checks. The doctor said he would explore stress counselling with the Occupational Health Nurse.On 2 February 1995 Mr Judges wrote to the Appellant. Quite properly he told the Appellant that there was no continuing need for his agreed absence from work on medical grounds and it was now time for the Appellant to choose one of the seven vacancies offered in December. His letter concluded:
"Could you please let me know no later than Wednesday 8 February your decision so that arrangements can be made for you to start work on Monday 13 February 1995. I have reserved time at 9.30 am on this date to see you, hopefully with your new Team Manager."
On 4 February 1995 the Appellant replied declining to make a choice and insisting that his career development issues should first be resolved.On 8 February Mr Judges wrote to the Appellant a letter that included these words:
"The position is that you are fit to return to work to undertake your contractual duties as a Social Worker. You must return to work on Monday 13 February. ...
You are required to attend at my office at 9.30 am on 13 February 1995 too, so I can complete the arrangements for your return to work."The Industrial Tribunal found that that was an entirely reasonable instruction and gave its reasons for that. The Tribunal also noted that on at least one occasion during the hearing, the Appellant accepted that he had actually been fit for work since April 1994, throughout his medical suspension.On 12 February 1995 the Appellant wrote to Mr Judges ignoring the letter of 8 February and asking to be short-listed for a Team Manager's post, which was senior to the one he had previously occupied. The Appellant did not attend Mr Judges' office on 13 February, although he was in the building at 9.30 am.On 13 February Mr Judges wrote to the Appellant saying that because of the failure to attend the meeting, arrangements would be made for a disciplinary investigation. He also said that because of the Appellant's failure to select one of the vacancies offered, he, Mr Judges, would select one for him. Mr Judges instructed the Appellant to report to Mr Porter at the Ladywood Area Office at 9.45 am on Thursday, 16 February and that letter concluded:
"So there is no misunderstanding, please be clear that it is an instruction for you to attend work and re-start your duties."
I now turn to take up the narrative from the Industrial Tribunal's Full Reasons. Of that paragraph in the letter to which I have just referred the Tribunal said:
"3 (l) That could scarcely have been clearer. Yet on 15 February Mr Jackson wrote a further lengthy letter to Mr Judges which begins:
'I must state that I entered into negotiations with yourself in an attempt to reach a 'compromise agreement' to rectify the breach of my employment contract by your department. Your response was to focus only on the medical issues, you failed to discuss the other proposals despite my assertion in the meeting and through numerous correspondence that all proposals must be ratified if I am to return to the working environment.You then followed this by making a threat through a warning letter that I had made a defamatory statement in a subsequent correspondence. I feel it is necessary to refresh your memory concerning previous industrial tribunal judgments'.(m) That is a reference to the fact that in April 1994 Mr Jackson brought a successful complaint under the Wages Act 1986 against the respondents concerning alleged breaches of his contract. As we understand it the compensation awarded was paid and the breach ratified. ..."Then, after some further explanation, the Full Reasons continue:
"(n) With respect to Mr Jackson the position which he adopted in his letter of 15 February is as unrealistic as the position which he adopted before the tribunal. He was an employee. He was on medical suspension in receipt of fully pay. He was now fit for work and he was manifestly disobeying an instruction to return to work.

(o) On 16 February Mr Judges wrote again to Mr Jackson saying:

'We have reached an exceptionally serious situation. You are fit to return to work and have not done so. This cannot continue.'
He also said that he was prepared to make one last attempt to resolve Mr Jackson's concerns and arrange an appointment at 9.30 on Friday 24 February 1995. Mr Jackson responded saying that because his trade union representative was not available at that time it would not be 'practicable' for him to attend the meeting and he asked for a new date to be arranged. On 24 February Mr Judges wrote again summarising the situation to date, pointing out that Mr Jackson had failed to attend the meeting of 24 February and, although he was obviously aware of the letter of 21 February because he had seen someone else's copy, informed Mr Jackson that he had yet to receive his own copy. The letter concluded:
'As I have made the offer to meet with you I am prepared to rearrange the meeting. Unfortunately I am away from the office next week so the earliest time available is 4.00 pm on Wednesday 8 March. Please arrange to be present with the representative, if you wish. I am not prepared to accept any further delay.
As there is opportunity for you to meet with Andrew Porter before our meeting on 8 March to discuss your induction arrangements etc would you please make contact with him so as to speed up the arrangements on your return to work.'(p) On 28 February Mr Jackson wrote again, apparently ignoring Mr Judges' letter but indicating that he was seeking to 'negotiate a return to work' but was seriously considering withdrawing from the negotiations and placing the matter before the Court. On 8 March the day of the appointed meeting, a sick note was received from Mr Jackson and the meeting was re-arranged. It took place on 24 April 1995 with Mr Alleyne present as Mr Jackson's representative. We accept Mr Judges' evidence that he pointed out to Mr Jackson the seriousness of the situation, and that he had ignored completely the instructions to return to work contained in the letters of 2 and 13 February. Mr Jackson replied that he would not return to work until alleged breaches of his employment contract going back to 1991 were remedied. This appeared to be a new point. Mr Judges made it clear that he was not willing to enter into further discussions about compromising the terms upon which Mr Jackson returned to work and he was given a final instruction to report to work on Wednesday, 3 May 1995, at the Ladywood Area Office. (q) That instruction was confirmed in a letter of the same date. The final two paragraphs read:-
'My instruction to you is that you must report to Mr Andrew Porter, Team Manager, at Ladywood Area Office on Wednesday 3 May 1995 to carry out your duties as a senior social worker.
If you fail to do so, I will consider that you no longer wish to work as an employee of the City Council and that you have repudiated your contract of employment with effect from that date.'(r) Mr Jackson wrote to Mr Judges on 25 April making no reference to the letter of 24 April. The final paragraph reads:
'Please note that I have not returned to said employment following the Industrial Tribunal decision, hence the contract remains in "dispute". (How that can have been so is unclear as Mr Jackson had won his previous Industrial Tribunal case and there is no suggestion that the Respondents had not complied with the tribunal's decision). It is therefore entirely up to yourself how you respond in this matter. Obviously an attempt was made to resolve the dispute informally which failed so it appears the matter will be dealt with formally through the Courts.'
That would appear to be a reference to the fact that at the meeting of 24 April Mr Jackson had produced a County Court Summons with Particulars of Claim attached, relating to the alleged breaches of contract which he wanted to discuss as a pre-condition to his return to work. He had made it clear that he had no intention of returning to work until the respondents conceded that there had been a breach of contract.(s) The next letter in date order is one from Mr Jackson of 2 May 1995 addressed to Mr Judges which reads:-'Please can you send me your formal notice of written reasons for the termination of my contract and effective from 3 May 1995'.The date looks as though it has been altered from 7 to 2 and was not received by Mr Judges until the 9th. Mr Jackson was told in reply that his employment had not been terminated. He was told that his continued absence from work was unauthorised and a disciplinary investigation would take place. He was told that Louise Wood, Area Social Services Manager, had been commissioned to carry out the disciplinary procedure and 11 charges, in fact a brief resume of the events set out in this Decision, were listed in the letter. However in the meantime the pay roll section had stopped paying Mr Jackson who complained about it on 22 May (a complaint which is totally inconsistent with his assertion that he had been dismissed by the Respondents on 3 May). Mr Judges immediately arranged for his pay to be reinstated. That, if we may say so, was an extremely generous gesture on Mr Judges part as he would have had every justification in terminating Mr Jackson's employment there and then.(t) The fact that he did not do so may have been because in the letter of 22 May Mr Jackson indicated that he had been unable to comply with the order returning him to work on 3 May because of illness. However, we do not accept Mr Jackson's evidence that he had actually notified Mrs Oates of the fact that he was ill prior to 3 May. He simply did not report as instructed. No self-certification form or doctor's note was ever received from him. (u) Mr Jackson now purported to take the view that because he had failed to return to work on 3 May he was no longer employed by the respondents and had been dismissed by them. Correspondence followed in which he maintained that position and in which the respondents confirmed that he was still in their employment. Finally on 15 June he wrote repeating a previous statement that he was not intending to attend any disciplinary hearing and no longer regarded himself an employee of the Social Services Department. The respondents regarded that as his letter of resignation and finally ceased paying him."This matter was considered by the Employment Appeal Tribunal at a preliminary hearing. It allowed the case to proceed to a full hearing on the basis of amended grounds of appeal. The amended grounds of appeal are:
"1. The Industrial Tribunal erred in law in concluding that the Appellant was dismissed on 19th June 1995 when the Respondent accepted a repudiatory breach by the Appellant. In fact, the Appellant had already been dismissed, the effective date of termination being the 3rd May 1995, when the Appellant failed to return to work after having been ordered to do so by the Respondent.
2. The Industrial Tribunal erred in law in concluding that the dismissal of the Appellant was a fair dismissal. The Respondent failed to follow its own disciplinary procedures as set out in the disciplinary code 'A Working Guide To Discipline', making the dismissal of the Appellant unfair."It is thus quite clear that the Appellant challenges the finding that his contract terminated on 19 June 1995, rather than on 3 May 1995, as he maintains, and that the Appellant contends that his dismissal was unfair because proper procedures were not followed.The first argument for the Appellant is that, whilst the instruction to report for work on 3 May 1995 that was contained in Mr Judges' letter of 25 April 1995 was a reasonable one, it became unreasonable and should have been withdrawn in the circumstances that unfolded. Those circumstances were that on 27 April 1995 the Appellant had seen a doctor who had found his blood pressure to be high and who had prescribed medication. The Appellant had then, that same day, seen Mrs Oates, the Divisional Personnel Manager, about it. It was Mrs Oates' evidence that she told the Appellant that, if it was necessary to report sick, he should follow the department's sickness procedure. Notwithstanding that, the Industrial Tribunal found, as a fact, that the Appellant did not report that he was ill prior to 3 May and that no self-certification form or doctor's note was ever received from him. The Appellant asserts that he did, in fact, notify Mrs Oates.The argument continues that, having received a report from the Appellant as to his unfitness for work, the Respondent behaved unfairly in not varying its instruction of 24 April 1995. Alternatively, and in the light of the Industrial Tribunal's findings, it was argued that following the Appellant's visit to Mrs Oates on 27 April, it was incumbent upon the Respondent to keep itself informed of the Appellant's progress in his health.All those are essentially arguments either challenging findings of fact by the Industrial Tribunal or arguments as to reasonableness based on the facts as found. They are not open to review by us. But the direction the Appellant's argument leads from those arguments on the facts is to his contention that, having in fact failed to report for work on 3 May, he was entitled to take the Respondent at its word; that is the letter of 24 April, and regard himself as having been dismissed. That in fact involves a misreading of the letter of 24 April.The Appellant's argument is, then, that in no circumstances could the employer look at any events that had occurred, but had only come to the notice of the employer after 3 May, in order to decide whether, in the circumstances, it was right to regard the breach of the instruction as to be relied upon in deciding whether to treat the contract of employment as repudiated by the employee. In other words, the position in law was established as at 3 May 1995. That argument was inevitable for the Appellant's case. To have argued otherwise would have been to have accepted that the contract was only at an end if the repudiatory act by the employee had been accepted by the employer as terminating the contract. That, in fact, was the argument of the Respondent.The Respondent argued that the employer did not treat the contract at an end. It said as much; it reinstated the Appellant's normal pay; it proposed proceedings through a disciplinary hearing, We reject the Appellant's submissions on this aspect as not well-founded in law. In holding that the contract of employment was not terminated on 3 May, the Industrial Tribunal made no error of law of which we have begun to be persuaded; nor, was there any room for a perversity argument about it.The Appellant's second line of appeal relates to a failure to follow disciplinary procedures. There were technical difficulties about that argument. We were told that no point on that was taken before the Industrial Tribunal. Certainly, no point was made in the Appellant's application to the Tribunal on the form IT1. So, contended Counsel for the Respondent, it was not a ground of appeal sustainable before us.Secondly, although the Respondent's written grievance procedure was in the bundle of documents before the Industrial Tribunal, as well as for us, it was not referred to there. Before us, the Appellant sought to reply on a different document, a Birmingham City Council document called "A Working Guide to Discipline" which was certainly not before the Industrial Tribunal.Notwithstanding those difficulties, and in order to avoid any possible sense in the Appellant that he had not been fully heard, we listened to argument on the disciplinary procedure point. Indeed, we not only heard the Appellant's Counsel on it, but we heard the Appellant himself. But the facts are that following a preliminary meeting on 15 June 1995, which the Appellant attended, he wrote to say that he would not attend any disciplinary hearing. That came on top of the long history, to which I have referred, of refusal to obey lawful instructions.We are entirely satisfied that there is nothing whatever in the Appellant's case on disciplinary procedures and that the Industrial Tribunal was fully entitled to conclude that the dismissal of the Appellant was not merely fair, it was inevitable.Accordingly this appeal will be dismissed.