MRS F E TURNER v LONDON BOROUGH OF SUTTON [2000] UKEAT 474_00_1807

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 474_00_1807

Case No Appeal No. EAT/474/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS F E TURNERAPPELLANT

LONDON BOROUGH OF SUTTONRESPONDENT

Before

Mr Recorder Burke

Date 18 July 2000

[1]APPEARANCES For the Appellant MR KIRWAN Representative RECORDER BURKE QC: Mrs Turner, the Appellant here, seeks to appeal from a decision of the Employment Tribunal at London South, chaired by Mr Booth, promulgated on 1 March 2000 and supported by extended reasons, whereby Mrs Turner's complaint that she had been constructively and unfairly dismissed by her employer the London Borough of Sutton was rejected. We have to say at the outset that, whatever view one takes about this case, it is undoubtedly a very sad case. Mrs Turner, at the relevant time, was I think in her late 50's and the fact that she has lost good employment is obviously a matter of great regret when it happens at that kind of age. She was employed as a Librarian by the Respondents in the post of Library Manager Grade 5/6 and worked at Sutton's Carshalton Branch Library.

[2]Various problems arose, allegedly with the performance of her duties and the employers felt that the correct way to seek to ensure that the problems did not reoccur was to require Mrs Turner to undergo a period of training at their central library in Sutton. It seems that there was no grade 5/6 post at Sutton, so the employers proposed to transfer Mrs Turner there, temporarily it seems, (although Mr Kirwan who has appeared on behalf of Mrs Turner says that it was not absolutely clear that it was temporary), to a job which they had created for her for the period of her training. When I say 'created for her', it appears that there was somebody in post who was going to be taken away from that post, the duties were then going to be changed, so as to be consistent with a Grade 5(6) Manager and Mrs Turner then asked to fill that post.

[3]There was, we are told, no formal process of job evaluation in relation to that post and we have seen no job description. Mrs Turner regarded the proposed transfer as 'an attempt to discipline her for the alleged shortcomings without going through the disciplinary procedure' and as a course which, under the terms of her contract of employment, the employers were not entitled to take. After a series of meeting and letters, which we need not go into in detail for present purposes but are set out in the Industrial Tribunal's very full and detailed decision, Mrs Turner received a letter dated 29 September from the employers some of which we will read. It states:

"As you have been on sick leave since the beginning of July, I do not feel it would be appropriate for us to set a date to hear your grievance until we are sure that you are well enough to attend. I have therefore asked Dr Sharma (who was on Occupational Health Doctor I interpose) to see you again. Whilst it is not part of my remit to comment on your grievance, I would say that moving from one library to another, whether on a temporary or permanent basis, is not unusual in the library service, and should not be seen as a punishment. Indeed, the requirement to work at any location in the borough is included in your employment. This temporary transfer is intended to be a positive step in resolving the current situation. I would suggest that, if your GP finds you fit to return to work, that you contact Jane Easton in order to arrange a meeting with management to discuss and agree plans for your return. I hope that you are feeling better now, and that we shall be able to resolve these difficulties."

[4]The Industrial Tribunal found and it is unassailably correct that Mrs Turner's reaction to that letter was to resign. She claimed that the employers' conduct was in breach of her contract of employment and that she had been constructively dismissed. The Industrial Tribunal, in its decision, set out the primary facts of the case as they found them to be, as I have said at length, they then went on to consider, first, whether the transfer which the employers sought to impose on Mrs Turner was within or without Mrs Turner's contract of employment. The contract of employment included two clauses. First of all it said:

"You are employed by the London Borough of Sutton and your appointment is to the post of Library Manager Grade 5/6. As a term of your employment, you may be required to undertake such other duties as may be reasonably required of you, commensurate with your grade. Secondly it said: "

You may be required to work anywhere in the London Borough of Sutton and initially will be based at Carshalton Library."

[5]Mr Kirwan on behalf of Mrs Turner has today pointed out that those two clauses must be read together. In other words, the mobility clause, permitting the employers to transfer Mrs Turner anywhere within the borough, did not permit them to transfer her to any work but only to such duties as might be reasonably be required of her, commensurate with her grade as specified in the first of the clauses which I have red out. We entirely agree that that is so and that is the only appropriate way to construe these parts of the contract of employment. There is no hint that the Tribunal construed them in any different way. There arose an issue of fact as to whether the duties to be allocated to the employee, Mrs Turner, at the Sutton library fell within the words of the first clause of the contract which I have read out i.e. whether they were duties such as might be reasonably required of her, commensurate with her grade.

[6]At paragraph 31 of its decision the industrial Tribunal found as a fact that they accepted the Respondent's evidence that the job she would do at the Sutton Centre Library satisfied clause 1 of her contract of employment. They also found at paragraph 32 that the training proposed fell within the words 'such other duties and or pattern of work as may be reasonably required of you', a further term which was set out in the job description of her existing job. We do not think that the job description adds or subtracts from the clauses which I have already read out in any material way. Having found as they did that the duties to which Mrs Turner was to be transferred fell within her contract and therefore she could lawfully be moved to those duties, the Tribunal rejected the applicant's case that seeking to move the Appellant as the Respondents were seeking fell outside the contractual provisions.

[7]They then considered the alternative case that the whole of the employers' conduct was such as to undermine the relationship of trust and confidence between employer and employee and was so serious in its cumulative effect as to leave the applicant with no alternative but to resign and thereby gave rise to constructive dismissal. The Tribunal, in our view, directed itself as to the law as to constructive dismissal impeccably at paragraph 6, applied that definition and the principle of law which they had set out to the facts and concluded on the facts that the employer had not behaved in that manner and that there was not a breach of contract at all, or such as to entitle Mrs Turner to accept the Respondents' repudiation and leave their employment. Thus they dismissed the claim.

[8]On behalf of Mrs Turner, Mr Kirwan has put forward an extremely helpful and detailed Notice of Appeal which really amounts to a skeleton argument or indeed to a written argument, and we are grateful to him for that as we are grateful to him for appearing on behalf of Mrs Turner and for the good sense and cogency of his submissions. He takes a number of points that fall into three areas as set out in that Notice of Appeal. Firstly, he takes points on the contract. He argues that the duties to be given to Mrs Turner were not commensurate with her grade and that there was no sufficient evidence to show that they were.

[9]The difficulty with that argument is that the Industrial Tribunal, as we have already said, resolved a factual area of dispute as to those duties plainly in favour of the Respondent in paragraph 31 which I have already referred to; it is clear from a reading of the facts which they found in setting out the history that evidence was given about the nature of those duties, and it does not seem to us that it can be said that their finding was not a finding that a reasonable Tribunal could reach.

[10]Secondly, it is said that the transfer was to a non-substantive and non-established post, as opposed to the substantive established post Mrs Turner held at Carshalton. But, unhappily the contract of employment does not state anything about the transfer rights entitling the Respondent to transfer only to an established or substantive post. We see no reason, and do not see the contrary could be argued, why an employer should not transfer an employee on a temporary basis to a non-established post, as long as what he does falls within the contract.

[11]Thirdly, it is said that the library at Sutton did not have a grade 5/6 post and that only outlying libraries such as Carshalton had such a post. It appears from a document in the papers that that was, a matter of fact, correct; but what Sutton had done was to carve out a post, into which they wanted to place Mrs Turner for the temporary period they specified and that post, as the Tribunal found, involved duties which satisfied clause 1 of her contract of employment.

[12]So it seems to us that the points which are taken on the contract itself, by Mr Kirwan on behalf of Mrs turner, are not reasonably arguable. The next set of arguments relates to the grievance procedure. There is no doubt that Mrs Turner instituted a formal grievance under the Respondent's grievance procedure, which grievance had been formalised by the time the employers sent the letter which led to Mrs Turner's resignation. At that time she was off work with health problems attributable to the stress, which the disagreement which we have been describing was allegedly causing. The employers' personnel manager asked the Occupational Health Service to say whether Mrs Turner was fit to attend a grievance hearing; and pending a response, she wrote the letter of 29 September which I have already read. It is argued that by requiring a medical examination as a condition of proceeding with the grievance procedure, the employers were in breach of contract in that they were: a) delaying the grievance procedure and b) were imposing a condition on it which the grievance procedure did not justify or prescribe namely attendance at a doctor and thus, there was a breach of contract

[13]The Industrial Tribunal deal with that at paragraph 22 of the decision. They found that what was happening at this time was that the employers felt that a further meeting ought to be arranged to discuss and agree a plan for Mrs Turner's return and that the letter was by no means shutting the door on Mrs Turner's grievances. They were taking steps to arrange a hearing, found the Tribunal, showed further willingness to discuss and indeed, by that letter invited such discussions. The fact that Mrs Turner read the letter differently does not enable us to go behind the decision of the Industrial Tribunal, which appears to us in any event to be entirely sensible. The letter was not denying a grievance procedure or imposing conditions on it. It was merely asking Mrs Turner to go and see a doctor, with a view to discovering whether she was fit to attend a grievance procedure hearing. We do not believe that there is any arguable case, in relation to the grievance procedure, that there was a breach of contract.

[14]The third group of arguments relates to the fact that, shortly before the hearing, the employers' solicitors wrote to either Mrs Turner or Mr Kirwan her representative, it does not matter which, alleging that the real reason for Mrs Turner's resignation was that she was selling her house and moving away from the area and had put her house on the market before her decision to resign. Having apparently discovered this, the employers' solicitors in that same letter gave a costs warning to Mrs Turner. It is asserted on behalf of Mrs turner that this information and evidence because it was let before the Tribunal, was irrelevant to the issues which the Tribunal had to be decided and in effect, poisoned the atmosphere against her. As Mr Kirwan says, it may have caused them to disbelieve her on other issues.

[15]The argument that this evidence was irrelevant in law is, in our view, based on misunderstanding. The Respondents were putting forward a defence to a constructive dismissal claim; it was entirely relevant for them to put forward as part of their defence that the reasons for the resignation were not at all the breach of contract upon which Mrs Turner was relying but her wish to move away from the area. We do not see how it could sensibly be argued that evidence along those lines was irrelevant; and indeed one only has to posit what would have happened if the evidence had proved that that indeed was Mrs Turner's motive to see how relevant it plain was. As it happens the Tribunal did not accept that Mrs Turner had a different motive from that on which she relied in the sense that the whole chain of events was a device to bring these proceedings when she was going to resign anyway, although they did say that the sale of the house may have made it easier for her to resign.

[16]In our view there is no arguable case for under these heads of appeal either.

[17]We return to what we said at the beginning that this is a sad case. Unfortunately the fact that it is a sad case does not mean that it is a case in which there are arguable grounds of appeal. For the reasons which I have set out, our conclusion is that there are not and this appeal must therefore be dismissed.