MRS R SINGH v LAMBETH HEALTH CARE NHS TRUST [1999] UKEAT 798_98_0107

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 798_98_0107

Case No Appeal No. EAT/798/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS R SINGHAPPELLANT

LAMBETH HEALTH CARE NHS TRUSTRESPONDENT

Before

His Honour Judge H Wilson Mr I Ezekiel Mr E Hammond

Date 1 July 1999

[1]) Messrs Le Brasseur J Tickle Solicitors Drury House 34-43 Russell Street London EC2B 5HA JUDGE WILSON: This has been the final hearing of the Appeal brought by the original Applicant against the original Respondent and I shall refer to them by their original statuses in this Judgment. The Applicant is being represented today by Mr Kibling, having been unrepresented before the Employment Tribunal sitting at London (South) on 30 th March 1998. The Respondent has been represented today, as they were before the Employment Tribunal by Miss Whipple. In view of the nature of the case we have been considerably assisted by the skeleton arguments prepared by both Counsel and those skeleton arguments are to be appended to this Judgment and to be regarded as part of it. The Employment Tribunal came to the conclusion unanimously that the application for unfair dismissal was dismissed and that her other applications were stayed upon conditions which are set out in the decision. We have been concerned only with the finding that the dismissal was not unfair. Because of the conclusion which we have reached we think that it is prudent for us to say no more about the facts of the matter.

[2]We are persuaded that the Employment Tribunal fell into error principally because it took account of matters after the 3 rd November 1997 which was the date upon which the Applicant's letter of resignation dated 29 th October was received by the Respondent.

[3]We also are persuaded that if a finding, in the alternative or otherwise, that a dismissal is fair is made by an Employment Tribunal, in order to fulfil the requirements of Rule 10(3) of the Industrial Tribunal Regulations 1993 Schedule 1, the reasons for coming to that conclusion should be set out in full at that point in the decision. It is not sufficient to do it by reference to an earlier part of the decision.

[4]In our view, having regard to the error of law fallen into which the Tribunal fell, this matter should be remitted to a differently constituted Tribunal and by way of guidance only, we suggest the following questions should be asked by the Tribunal. I. Did the Respondent breach the contract between itself and the Applicant? II. If so, was it a fundamental breach so as to entitle the Applicant to regard herself as freed from obligation under it? III. If so, was the breach repudiatory or anticipatory? IV. If so, was it fair? V. If so, why was it fair?

[5]As I say, those questions are by way of assistance only and we add also, that the question of reasonableness does not fall to be considered in answering those questions, having regard to the Court of Appeal decision in Western Excavating Ltd -v- Sharp

[1978] IRLR P.27

, (the judgment of Lord Denning). Apart from that case, we have found assistance in the decisions of the Court of Appeal in Pedersen -v- The Mayor and Burgess of the London Borough of Camden

[1981] IRLR 173

and East Lindsay -v- Daubney which is an Employment Appeal Tribunal decision reported in

1977 IRLR 181

. Case No:

EAT/798/98

IN THE EMPLOYMENT TRIBUNAL (To be heard on 19 th July 1999) BETWEEN : RITA SINGH Appellant - and - LAMBETH HEALTH CARE NHS TRUST Respondent OUTLINE SUBMISSION OF THE APPELLANT I. GROUNDS OF APPEAL i. it failed to determine that the decision on 22 nd October 1997 to exclude the Appellant from her contractual duties as a health visitor and instead seeking to find her alternative employment was not a fundamental breach and/or anticipatory breach of her employment contract sufficient to entitle her to claim constructive dismissal (the breach of contract issue) ii. in determining whether the Appellant was entitled to claim that she had been constructively dismissed it took into consideration matters post-dating her resignation on 29 th October 1997 (the post dismissal issue) iii. in determining in the alternative that the dismissal was fair took into consideration matters post-dating her resignation on 29 th October 1997 (the unfair dismissal issue). II. THE BREACH OF CONTRACT ISSUE It failed to determine that the decision on 22 nd October 1997 to exclude the Appellant from her contractual duties as a health visitor and instead seeking to find her alternative employment was not a fundamental breach and/or anticipatory breach of her employment contract sufficient to entitle her to claim constructive dismissal The relevant findings of fact i. since 1992 the Appellant had worked for the Respondent as a health visitor (paragraph 2) ii. on 21 st October 1997 Dr Assoufi provided a medical report which state that the Appellant could return to her health visit duties but that she was likely to be off work in the future with sickness if she did so (paragraph 13) iii. at a meeting on 22 nd October 1997 the Appellant disagreed with Dr Assoufi's assessment as she felt she was able to return to health visiting duties without excessive absence in the future (paragraph 13) iv. the Respondent's Ms McLaughlin wrote to the Appellant on 22 nd October 1997 and told her that health visitor duties would no longer be available to her (paragraph 13) v. as a consequence of the letter dated 22 nd October 1997 the Appellant resigned on 29 th October 1997 (paragraph 14) The documents before the Employment Tribunal i. The Appellant's contract of employment and job description which defines her post as a health visitor (see supplementary bundle) ii. The letter dated 22 nd October 1997 from Dr Assoufi to Ms McLaughlin (see supplementary bundle) iii. The letter dated 22 nd October from Ms McLaughlin to the Appellant (see supplementary bundle) "We discuss the option of redeployment into sedentary work and Anita Sharma agreed to identify what posts were available to you. Clearly, this option depends on firstly such posts being available and secondly you agreeing to take this option. At the meeting you stated that you did not wish to undertake this type of work. I explained that the only option available, if a sedentary post was either not available or you did not wish to pursue this option would be dismissal on the grounds capability." iv. the resignation letter dated 29 th October 1997 from the Appellant to the Respondent's Anita Sharma (see supplementary bundle). Whether there was a "constructive" dismissal i. what are the terms of the employment contract, ii. did the facts as found by the Tribunal constitute a breach (or anticipatory breach) of contract by the employer, and iii. was the breach a fundamental breach of contract. (See pages 677H to 678D and 680H. "The employer was at all times willing to employ the Applicant as a health visitor if the employer could be satisfied that she could attend regularly to do that job. Failing that, he would find other work for her if possible. That cannot possibly breach any of the duties an employer has to his employee, whether expressed or implied." III. THE POST DISMISSAL ISSUE In determining whether the Appellant was entitled to claim that she had been constructively dismissed it took into consideration matters post-dating her resignation on 29 th October 1997 The Employment Tribunal's Decision "We decided to stand back and look at the three incidents of 22 nd October (the interview), 29 th October (the resignation) and 7 th November (the letter offering to consider any report provided by the Applicant ) as a whole" The Error of Law IV. THE UNFAIR DISMISSAL ISSUE In determining in the alternative that the dismissal was fair took into consideration matters post-dating her resignation on 29 th October 1997 "They (the Respondent) had been more than patient with the Applicant over many months and their actions in October and November could not be faulted " V. ORDER OF THE EMPLOYMENT TRIBUNAL THOMAS KIBLING Case No:

EAT/798/98

IN THE EMPLOYMENT TRIBUNAL (To be heard on 19 th July 1999) BETWEEN : RITA SINGH Appellant - and - LAMBETH HEALTH CARE NHS TRUST Respondent THE MATERIAL DATES 27.07.92 The Appellant commenced employment with the Respondent as a health visitor 13.01.97 The Appellant off work on account of sickness 26.03.97 The occupational health assessment that the Appellant is not fit to return to work as a health visitor 22.10.97 The Appellant attends occupational health and report produced 22.10.97 The Appellant attends a meeting with Ms McLaughlin and Ms Sharma 29.10.97 The Appellant resigns 30.03.98 The claim before the Employment Tribunal determined 13.04.98 The written decision sent to the parties 28.10.98 The preliminary hearing before the Employment Appeal Tribunal 28.10.98 Amended grounds of appeal filed Case No:

EAT/798/98

IN THE EMPLOYMENT TRIBUNAL (To be heard on 19 th July 1999) BETWEEN : RITA SINGH Appellant - and - LAMBETH HEALTH CARE NHS TRUST Respondent RESPONDENT'S SKELETON ARGUMENT Note:(1) Respondent's Chronology attached.

(2) Reference in this Skeleton (and the Chronology) are to the Respondent's Bundle prepared for the Employment Tribunal hearing.

(3) This skeleton argument responds to the Amended Notice of Appeal dated 28 th October 1998 only. The Respondent understands that all other matters previously raised but not reflected in the Amended Notice of Appeal have been abandoned (as confirmed by Appellant's solicitors' letter dated 17 th November 1998). THE DECISION "We first asked ourselves was there a dismissal? This is always difficult when an employer in pursuance of a capability or redundancy situation seeks to find other work. It could be argued that either he has assigned a different task within the same employment contract or that he has ended the contract and immediately offered another, or that he has sought a variation of the contract." "The employer was at all times willing to employ the Applicant as a health visitor if the employer could be satisfied that she could attend regularly to do that job. Failing that, he would find other work for her if possible. That cannot possibly breach any of the duties an employer has to his employee." THE GROUNDS OF APPEAL Paragraph 13 of the Decision (paragraph

6.1 of the Notice of Appeal)

a. a very long history of sickness by the Applicant (she had been off work for 10 months continuously before the events complained of in October 1997);

b. sustained attempts by the Respondent to consult with the Appellant, to ascertain her medical status and prognosis, and to identify an alternative job for her;

c. a failure by the Applicant to co-operate with those attempts ("she failed to attend the majority of meetings with management and doctors" - paragraph 10 of the Decision). Paragraph 21 of the Decision (paragraph

6.2 and

6.3 of the Notice of Appeal) a. The Tribunal was obviously correct to consider the "whole story" before attempting to analyse it for its legal significance. The events after 22 nd October are part of the whole story. The Tribunal, applying commonsense, was correct not to close its mind to them; b. The Tribunal was at pains to ensure that the Appellant, acting in person, did not miss a good point. It was therefore correct to see whether events after 22 nd October 1997 gave her cause for complaint or affected the situation on or before 22 nd October 1997. (One point that could of course be made by the Appellant is that by offering her the opportunity to prove a second report from a specialist in the letter of 7 th November 1997, the Respondent was doing something which it should reasonably have done before coming to its decision on 22 nd October 1997). The Tribunal therefore correctly considered the events of 7 th November 1997 and concluded that in relation to them also the Appellant had no grounds for any complaint of unfairness; c. The letter of 7 th November 1977 provides evidence, which the Tribunal was entitled to take into account, as to the Respondent's general approach to managing the Appellant's long-term sickness in the earlier period up to 22 nd October 1997. If it was in any doubt as to the Respondent's attempts to be fair, then the offer of 7 th November 1997 - which the Respondent did not need to make - demonstrates that the Respondent was applying a fair hand. GENERAL PHILIPPA WHIPPLE Case No:

EAT/798/98

IN THE EMPLOYMENT TRIBUNAL BETWEEN : RITA SINGH Appellant - and - LAMBETH HEALTH CARE NHS TRUST Respondent CHRONOLOGY (prepared by the Respondent) {The references to page numbers are to the Respondent's Bundle before the Employment Tribunal} 13.01.97 RS goes on sick leave 04.02.97 RS referred to Occupational Health (p.143) 18.02.97 RS fails to attend Occupational Health appointment (but there is confusion on dates - see p.144) 26.03.97 RS attends Occupational Health. Not fit for her duties (p.146) 10.04.97 JM writes to RS to tell her of meeting on 23.04.97 (p.147) 18.04.97 RS writes to JM to postpone meeting until after she has seen her specialist on 28.04.97 15.05.97 JM writes to confirm rescheduled meeting on 21.05.97 (p.149) 21.05.97 RS doe not turn up at meeting (p.151). Another meeting schedule for 05.06.97 (p.151) and Occupational Health appointment on 18.06.97 (p.150) 27.05.97 RS writes explaining non-appearance at meeting on 21.05.97 (did not get notification) (p.152). Wants to cancel meeting on 05.06.97 due to treatment day before and suggests meeting on 18.06.97) 30.05.97 JM reschedules meeting for 23.06.97 (p.153) 23.06.97 Meeting with JM and Anita Sharma (Personnel). Discuss options given long-term absence (p.156). Further meeting scheduled for 07.07.97 02.07.97 Occupational Health appointment at 10.00 am. RS does not attend (p.157). Sends fax to explain non-attendance at 9.40 am - she has been unwell since ultrasound on 30.06.97 (p.158) 05.07.97 Meeting with JM and Anita scheduled for 07.07.97 cancelled by RS (p.159) 08.07.97 JM writes re-arranging appointment with Occupational Health for 21.07.97; and meeting with JM and Anita on 29.07.97, at which decision re future employment will be made (p.160-161) 17.07.97 RS faxes requesting taxi dockets to enable her to attend Occupational Health (not in bundle) 21.07.97 RS again does not attend Occupational Health appointment (p.162) 22.07.97 JM writes to RS. Last chance for attending Occupational Health on 30.07.97. Meeting with JM and Anita on same day. Failure to attend could result in disciplinary action. Employment options to be discussed (p.163) 23.07.97 RS writes JM requesting home assessment by Occupational Health because she risks breaking her neck if she visits Occupational Health (p.166) 25.07.97 JM writes reminding RS of the importance of attending Occupational Health appointment and meeting afterwards; and confirming taxi available (p.167) 30.07.97 RS fails to attend Occupational Health. But Occupational Health (Dr Assoufi) reports that she has received a GP report stating she had a medical condition. He considers she will remain off sick for foreseeable future and he does not support retirement on medical grounds (p.168). Also fails to attend meeting with JM and Anita (p.169). Meeting arranged for 07.08.97. Future employment will be discussed. 31.07.97 RS complains to Sir Alan Renz (Trust Chairman) re JM (p.172-178). Grievance hearing scheduled for 18.08.97 07.08.97 RS fails to attend meeting. JM writes: she has reviewed employment options, and has concluded only option to termination contract on grounds of incapability; and to offer another meeting on 21.08.97 to finalise this (p.184-185). 18.08.97 RS cancels scheduled Grievance hearing for same day 18.08.97 Jane Schofield (Director) writes to notify of Grievance hearing on 08.09.97; and meeting with Personnel on 10.09.97 (p.186) ?21.08.97 RS writes to say cannot attend on 21.08.97 and requests meeting for 26.09.97 (p.183) 21.08.97 RS does not attend meeting with JM. JM writes to reschedule for 10.10.97 (p.187) 26.08.97 RS writes to Ms Schofield to rearrange Grievance hearing scheduled for 08.09.97; to JM to reschedule meeting for "unfair dismissal" to 26.09.97; and to Sir Alan (p.188-190) 29.09.97 Ms Schofield writes to RS refusing to change Grievance hearing date - 08.09.97 (p.191-192) 02.09.97 JM writes refusing to change meeting of 10.09.97 (P.193) 08.09.97 RS fails to attend Grievance hearing (p.195). Ms Schofield writes asking if RS wants another date 10.09.97 RS attends meeting with JM, Anita and union representative. Options discussed. Further appointment with Occupational Health arranged for 18.09.97; and further meeting with JM on 19.09.97 (p.196-197) 18.09.97 RS attends Occupational Health, but has not obtained report from specialist (p.199) 19.09.97 Meeting between RS and Jill Payne, Anita Sharma, Bernard Morgan. Report required from specialist; further meeting scheduled for 07.10.97 (p.202-203) 25.09.97 RS writes saying she will be well to return to work as HV on 03.11.97 and has chased her specialist for a report (p.204) 09.10.97 Occupational Health (Dr Assoufi) writes, having received report from specialist (Dr Venables, consultant rheumatologist) saying "I believe she will continue to have symptoms for the foreseeable future"; and that if she did resume work immediately she "will have sickness absence in the future because of her condition. Her symptoms are made worse by walking and climbing stairs and I understand her job as a Health Visit involves a great deal of these", and recommending a sedentary post (p.210) 10.10.97 Meeting with JM, Dawn Atkinson (union rep) and Sam James (Personnel). Discussed Occupational Health report. Further Occupational Health appointment 22.10.97; and meeting later on same day (p.211) 22.10.97 RS attends Occupational Health. Occupational Health reports again:

"she is likely to have above average sickness absence" and "her pattern of sickness absence will continue"; "physical demands of HV post may be too much for her"; "

I do not believe that reducing her hours of work will impact on her sickness absence in the future. Were a sedentary job to be available to her, I would anticipate that she would be less likely to be periodically unfit … but still higher than average" (p.212) 22.10.97 RS attends meeting with Dawn Atkinson (union rep), JM and Anita were present. RS disagreed with Occupational Health report. Further meeting arranged for 03.11.97. If redeployment (into sedentary job) not possible, RS's contract will be terminated (p.213-214) 29.10.97 RS writes:

"I consider decisions made as a fundamental breach of my contract, and am forced to discontinue my employment with LHC Trust"

(p.215) 03.11.97 RS does not attend meeting (p.216) 07.11.97 Anita Sharma writes saying RS can obtain second report from specialist of her own choosing, by 24.11.97. Invited to attend another meeting, but must notify by 12.11.97 if wishes to (p.216-217) 20.11.97 RS has not contacted Anita. Dawn Atkinson unable to contact RS. Anita writes: assumes RS stands by resignation of 29.10.97 (p.218)