Dilmitis v Leicestershire County Council & Anor [1998] UKEAT 825_98_0111

EAT
Dilmitis v Leicestershire County Council & Anor
[1998] UKEAT 825_98_0111 · 1998-11-01
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether Miss Dilmitis has an arguable point of law in relation to a Notice of Appeal which she has filed against a unanimous decision of an Industrial Tribunal which concluded, following a five day hearing, that she was not dismissed by her former employers, nor was she discriminated against for a reason related to disability.The facts can be shortly stated. The applicant/appellant was employed as a teacher since 1996. She taught mathematics and also later took on special needs teaching at Market Bosworth High School. In 1983 she was a victim of a serious road traffic accident in which she lost her right leg and also suffered partial paralysis of her left arm.During 1995 there was a pupil at the School who was identified to the Industrial Tribunal by the initials 'LC'. During the week ending 6th October, there was an OFSTED inspection at the school, and on the day in question (6th October) there was an incident involving the pupil LC. There had been trouble between that pupil and another pupil, who had sought refuge in the staff room. In that room was the applicant. She attempted to separate the two. In the course of an incident which must have seemed extremely violent and threatening, she was, so she says, assaulted, or, as the tribunal put it "forcefully pushed." She was clearly shocked by what had happened and told the tribunal that she suffered some bruising.On the following Monday, 9th October, she let the School know that she would be off sick. She supplied a sick note signing her off as suffering from nervous debility. She never went back to work before leaving her employment, some 17 to 18 months later.The tribunal found that by the Autumn of 1995 she was becoming somewhat disillusioned with teaching. On 7th November 1995 she questioned whether she should have ever returned to work after the road traffic accident in 1983 when speaking to her general practitioner, and she indicated to him that she would like early retirement.By the Spring of 1996 the Local Education Authority took part in negotiations with the applicant about various options that were open to her. Firstly, a return to school, possibly with some assistance of one sort or another; or secondly, redeployment to another school or another type of job; or thirdly, ill-health retirement. The tribunal say this:
"8. ... It is clear on the evidence that options 1 and 2 were not going to work. The applicant was not prepared to return to the school, she had made that clear. Redeployment, although vacancy lists were provided to the applicant, was unrealistic given the impending Local Government re-organisation and the severe lack of opportunities in alternative jobs."
From the Summer of 1996 the tribunal thought that it was clear that the applicant was pursuing the ill-health retirement option. On 17th June 1996 her trade union wrote to the Local Education Authority asking that she be sent forms, which are required to be completed, for somebody applying to retire on grounds of ill-health.She herself, on 19th June 1996, in a letter to the Principal of the School, said that she felt that on balance that it would be better for her and the School if she took early retirement. She said that she proposed to see the County Medical Adviser, Dr Coggins, who had given her some support.Dr Coggins expressed reservations about whether the applicant qualified for ill-health retirement, but the tribunal noted that she persisted in expressing the view that that was what she wanted.On 21st November 1996 the applicant wrote a letter to Dr Coggins, saying:
"I have thought very carefully about the points you raised when I saw you, particularly about the fact that not working can make disabled people feel more impaired. This is something that worries me, But even in view of this I feel I would like to apply for early retirement. It would be better than being in limbo and hopefully I would then be able to concentrate on making a new and different lifestyle for myself. I am quite sure I will never want to teach again."
The applicant told us this morning that she applied for early retirement by completing the relevant forms on 3rd January 1997. She wrote to the Principal of the School indicating that she proposed formally to resign with effect from the 30th March 1997, which the tribunal found was in fact the most favourable timing from her point of view. The tribunal noted that it was the applicant's case that she was forced into this course of action by the respondents' alleged breaches of contract. In paragraph 15 the Industrial Tribunal indicate that there are three requirements for a constructive dismissal case. It is not suggested that they had misdirected themselves in law in this respect. The three requirements are:
"1. that there is a fundamental breach of contract on the part of the employer;
2. that the employer's breach caused her to resign;3. that she did not delay to long before resigning thus affirming the contract and losing the right to claim constructive dismissal."The tribunal's conclusions were firstly, that there was no substantial breach of contract; secondly, that it was not the alleged breaches which caused the applicant to resign; and thirdly, in any event, if the incident on 6th October 1995 and the way it was dealt with by the employers was the breach relied on, it occurred too long before her letter of resignation, which was dated 22nd March 1997. Although in that letter she said that the reason for resignation is "entirely related to assault by LC" the tribunal noted that if that were the breach relied on, she did not resign for some 17½ months. Accordingly they found that the applicant was not dismissed, she resigned, and they rejected the claim for unfair dismissal on that basis.The tribunal then turned to the question of discrimination and said that:
"18. The applicant's real complaint in this case is that she was forced into resigning and claiming ill health retirement by virtue of the respondent's failure to provide her with proper advice and support and realistic alternatives. We do not accept that that is what happened in this case. We have already found that from November 1995 the applicant was considering leaving teaching and had effectively made up her mind by June 1996 well before the coming into force of the Act. Furthermore, we do not consider that this treatment is in anyway different to that which would have been meted out to a non disabled person. Indeed a non disabled person might have been left in a situation of not being permitted ill health retirement and being faced with a dismissal on capability grounds. It is therefore arguable that the treatment she received was in fact more favourable."
In what we could properly describe as able and succinct submissions, much of what the Industrial Tribunal found was in the appellant's argument not sustainable. She says that if one had regard to the background to this case, it is clear that the reason why she resigned was because she was not offered the support that she would need to return to her existing school; their attitude towards discipline and the way they dealt with LC demonstrated that they could not provide a safe environment for her to work in. Further, it was not possible for her to consider redeployment to another school because she was not provided with the list of vacancies that should be considered in that connection. Then, she said that there was a breakdown of mutual trust and confidence as a result of the Local Education Authority not following their own procedure which governs what happens to a teacher who is the victim of an assault in the workplace; she says that she received aggressive telephone calls requiring or inviting her to return to work; she said that when a vacancy arose whilst she was away from the school, she was not notified of it, although procedurally she should have been, that was the position of Head of Mathematics, for which she would have been a natural applicant; she tried unsuccessfully to operate the grievance procedure but was rebuffed with the Chief Executive saying in early 1997 that the grievance was reaching a conclusion, presumably on the basis that he anticipated that voluntary early retirement would be the chosen option and would be granted. Furthermore, she says that she was not offered the support and counselling that she was entitled to receive. Against that background, she says, her acceptance of voluntary early retirement on medical grounds was not truly a voluntary act on her part, but was caused by a combination of the factors to which I have referred.We have no hesitation in dismissing this appeal. It seems to us quite unrealistic for any employee to represent to the Pension Trustees that she is wishing to take voluntary retirement, in this case for medical grounds, and thereafter to represent that she had been constructively dismissed. Either she was entitled to a pension which was only available to people who were voluntarily retiring, or she was entitled to present a claim for constructive dismissal that she was being forced out.Accordingly, whatever the doctrine of estoppel might be, and however the outcome could be arrived at, it seems to us most improbable that an employee should be able to look both ways at once. But furthermore, in relation to the breaches of contract, it seems to us that she would conspicuously have failed to establish that her resignation was by reason of the alleged breaches, even if they had been committed. The facts to which the Industrial Tribunal drew attention seem to us to be clearly indicative of there being no causal connection between the way she had been treated in any respect, and her decision to resign. She had had enough of teaching, no doubt partly as a result of the accident that she had sustained in 1983, and the shocking affect of the incident with LC had had on her in 1995. But the tribunal who are charged with deciding the facts have looked at this with great care, as it seems to us, after a lengthy hearing and were entitled to reach the conclusion that there was no causative connection between the breaches and the leaving.Accordingly, we are satisfied that there is no legal merit in the claim which has been advanced, nor with the appeal which is advanced against the decision of the Industrial Tribunal. Therefore the appeal must be dismissed.