MRS L A MARTIN v SURREY AND SUSSEX NHS TRUST [2001] UKEAT 0866_01_1209

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0866_01_1209Case No Appeal No. EAT/0866/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS L A MARTINAPPELLANTSURREY AND SUSSEX NHS TRUSTRESPONDENT
Before
His Honour Judge D SerotaDate 12 September 2001
[1]APPEARANCES For the Appellant MRS ELIZABETH ANDREW (of Counsel) Appearing under the Employment Law Appeal Advice Scheme HIS HONOUR JUDGE SEROTA QC On 4 May 1999, the Appellant, to whom we shall refer as Mrs Martin, was employed by the Respondent as a switchboard operator. Her employment terminated on 18 September 2000. She claimed before an Employment Tribunal sitting in Brighton that she had been constructively dismissed, or dismissed for health and safety reasons and in breach of contract. She appeared before us in person although Mrs Andrew, did appear to argue a point on her behalf.[2]The Employment Tribunal found that she had responded to an advertisement seeking an experienced telephonist with initiative and able to work on her own. The Tribunal noted that in her application form she had stated she knew the post would be very responsible and challenging. There was a conflict of evidence between Mrs Martin on the one hand and Mrs Cook, who was her line manager, as to the circumstances in which she was to work. Mrs Martin maintained that she was not to work on her own for more one hour at a time. Mrs Cook said this was not the case. The Tribunal accepted Mrs Cook's evidence in that regard. Mrs Martin maintained that for a number of reasons she was unhappy working on her own, although from time to time, she did take on additional shifts to cover for other operators. She maintains that she had raised her concern at working alone on a number of occasions. Mrs Cook denied this was the case, so she was not aware of Mrs Martin concerns until, I think, a meeting on 19 September. Again, the Tribunal having heard the evidence of Mrs Martin and Mrs Cook, preferred Mrs Cook's evidence.[3]It is right to note that a document dated 15 September 1999 was before the Tribunal which concerned various options that were in consideration by the Respondent for a replacement switchboard that would cover both the sites at East Surrey and Dorking which were to be amalgamated. This document was prepared by Mrs Cook in September 1999. The option that was eventually put in place was that there should be, during evening, night and weekend, a minimum of two consoles always operational at Crawley. An operator staff would be based at the Crawley site and the operator workstation at Crawley could be modified to provide for 5 operator consoles. The papers continue that:
"The intention was to establish the 5 operator consoles at Crawley operating 7 days per week 24 hours per day. During evening, night and weekend periods a minimum of 2 consoles would always be operational."
[4]Nonetheless Mrs Martin continued to work a number of shifts alone, as did a fellow operator, Mrs Dolding. In June 2000 Mrs Dolding was considered not to have handled a situation in accordance with proper procedures. This led to a meeting between her and Mrs Cook and a letter in which Mrs Cook set out her concerns dated 6 September 2000. Mrs Dolding as a result was warned that if she failed to follow procedures she might face disciplinary proceedings. Mrs Martin was shown the letter by Mrs Dolding. Mrs Martin felt that Mrs Dolding had been treated very badly by Mrs Cook. She was also concerned that an operator should bear the sole responsibility for initiating emergency procedures when working alone. She was concerned that she ran the potential risk of being blamed for a death if such were to occur. She wrote to Mrs Cook seeking certain assurances. Mrs Cook responded and asked Mrs Martin to attend a meeting. The initial response of Mrs Martin was that she did not wish to attend the meeting but a telephone conversation took place when Mrs Cook insisted on the meeting and this took place on 19 September. The meeting was attended by Mrs Cook and the Personnel Officer, Mrs Roberts, and by Mrs Martin who raised concerns about the way Mrs Dolding had been handled. She suggested that single operator shifts might put hospital patients at risk and she was concerned that an operator might find herself personally responsible if a patient were to die. Mrs Cook made it clear to the Applicant, Mrs Martin, that she could not give her the assurances she wanted about not having to work alone in future, but, told her that, if an operator worked according to the procedures laid down, she need have no fear of being held responsible for any consequences.[5]It would seem that at that meeting Mrs Martin became emotional, accused Mrs Cook and Mrs Roberts of not listening, said she did not want the meeting and said she wanted to resign. She left the meeting and returned with a hand written letter of resignation. She was asked whether she wanted to terminate her employment with immediate effect or whether she was giving notice. She said she was giving notice and wanted to be paid for the notice period. Mrs Roberts took the view that as Mrs Martin was so upset the meeting should be adjourned so that it could continue at a later stage when she had regained her composure. Mrs Martin's response was that she was leaving immediately and would not return and was not prepared to discuss the issues that had been raised. She made it clear she was not coming back and would not return to perform her job. She then went on to say that she had been constructively dismissed.[6]The Employment Tribunal, in our opinion, correctly identified the law as to constructive dismissal in paragraph 15 of it's Extended Reasons. It examined 4 possible bases on which the Applicant might be constructively dismissed. Firstly, the requirement to work alone on the switchboard. Secondly, being required against her wishes to attend the meeting with her manager to discuss issues raised by her. Thirdly, the conduct of the meeting and fourthly the response by the employer to her resignation.[7]The Tribunal made a number of findings of fact. In particular they accepted the evidence of Mrs Cook rather than Mrs Martin's where the two differed. They also found, as in our view they were perfectly entitled to find, that she was employed on the basis that she might be required to work alone on the switchboard. They were also satisfied that the first time that Mrs Martin expressed her concerns about working alone was in September 2000 as I have already mentioned. They considered there was nothing improper in Mrs Cook insisting on a meeting to discuss the serious matters that she had raised – see paragraph 19 of the Extended Reasons. They also considered that Mrs Cook and Mrs Roberts had conducted the meeting in a proper way – see paragraph20. They also considered that the employers had acted properly in relation to the resignation – see paragraph21. The Tribunal was also satisfied that the Applicant resigned because of the way the employer dealt with Mrs Dolding and because it refused to alter its working practises relating to sole manning of the switchboard. She was asked by the Tribunal to identify the basis of the claim and she said her dismissal was for a health and safety reason or for whistle blowing but she was unable to produce anything to the Tribunal, so they said, other than a repetition of the bald assertion.[8]A number of complaints are made by Mrs Martin as grounds of appeal. I think it must be stressed that this Appeal Tribunal can only entertain appeals on points of law. The thrust, as it seems to us, of Mrs Martin's complaint is set out in the original Notice of Appeal and covering letter. She wrote a letter of 5 June 2000 to the Employment Appeal Tribunal in which she says this:
"I feel that there has been so much unfairness, misinterpretation ad incorrectness in this matter that I should be given a second chance to prove that what I am trying to get over to you is the truth."
She repeated that submission to us, but it seems that we can only permit this matter to go forward if we are able to find a point of law which has an arguable chance of success.[9]We will now go through the particular complaints that are made. It is suggested that the Tribunal should have made clear to Mrs Martin that a witness, Mrs Dolding, who had given a witness statement should be asked to stay and give oral evidence so that she could be cross-examined. It seems to us that it is very much a matter for Mrs Martin whether or not she chose to call a witness and in any event Mrs Dolding's witness statement was received into evidence by the Tribunal. It is then said that she should have been allowed to call June Edwards and Gill Roberts. These were both employees of the employer and the employer had chosen not to call them. The Chairman of the Tribunal took the view that Mrs Martin really wished to cross-examine them and that if they did not give evidence there would be nothing to set against the evidence of Mrs Martin herself. There is nothing to suggest that either Mrs Edwards or Mrs Roberts would have supported her case and they would not have been able to assist Mrs Martin in her complaint that her contract did not require her to work alone.[10]It is suggested next that the Tribunal failed to give adequate consideration to health and safety issues. It seems to us that these matters were considered. It is difficult to glean what exactly the health and safety issue is that is in fact being raised. We did hear submissions from Mrs Andrew, for which we are greatly obliged, suggesting that the Tribunal may have been wrong in finding that it was a condition of Mrs Martin's employment that she should be required to work alone. She drew attention to the merger proposal to which we have already referred and suggested that this amounted to a change of working conditions which the Employment Tribunal did not take into account. It seems to us that this argument has no chance of success, all the more so, as the Tribunal found, that it was only in September 2000 that any complaint was made by Mrs Martin that she was being required to work as a sole operator. We are unable to see how that document shows that the terms and conditions of her contract of employment had changed.[11]Mrs Martin then says that the Tribunal made a mistake as to the dates of her employment. They record her as having been employed , I think, for something like 19 months when she had only been employed for 14, in September 2000 and her employment began on 4 May 1999 and not 4 May 1998. We agree with the comments of the Chairman that this mistake in relation to dates is wholly irrelevant to the decision.[12]It is next asserted that the Chairman was biased and unfair. There is no material, as it seems to us, to support that allegation.[13]It is then said that Maureen Cook lied. Again …... - Mrs Martin I'm sorry but I can't listen to you any more. This is so very very wrong. No I can't, I'm going, I'm sorry, bye bye. I hope one day there's not a terrible accident. And I've got it all written down. – Mrs Martin then left the Court. Continuing - coming on to the suggestion that Maureen Cook had lied – The Employment Tribunal had the benefit of hearing witnesses and they came to the conclusion that Maureen Cook was a witness of truth. We certainly cannot interfere with that decision.[14]Complaint is then made that the employer's solicitors had not included certain correspondence in the bundle. This was a matter considered by the Employment Tribunal and it seems to us gives rise to no arguable ground of appeal.[15]It is suggested then that the Employment Tribunal misread the grievance procedure. It seems to us, having regard to paragraph 19 of their Extended Reasons, that they did not do so, and although we invited Mrs Martin to explain how this was so and how it could be said that it was wrong to compel her to attend a meeting having raised such serious matters, she was not able to give any satisfactory explanation. There is no merit in this point either in our opinion.[16]It is then said that the Employment Tribunal ignored the fact she had not signed the leaving form. This seems to us to be a matter of no consequence.[17]It is then said that the Employment Tribunal ignored the negligence of the manager in not providing detailed terms and conditions of employment. Written particulars of the employment should have been provided, but the failure to provide them is, it seems to us, immaterial to the issues that are before the Employment Appeal Tribunal.[18]It is then said the Employment Tribunal ignored the breakdown of trust between her and Mrs Cook because of her attitude and lack of support to staff. This is a matter that was considered by the Employment Tribunal. These are a questions of fact upon which they made findings and we cannot interfere with those.[19]Finally, it is said that the Employment Tribunal was wrong to interpret Mrs Martin's conduct as not asking for her resignation to be retracted. This is a factual matter investigated fully by the Employment Tribunal and again there are no grounds, as it seems to us, upon which that decision can be challenged at the Appeal Tribunal.[20]In the circumstances we have come to the conclusion that of all the matters raised by Mrs Martin there are none which have any arguable chance of success. They are bound to fail. In those circumstances we dismiss the appeal.[21]We would like to record our gratitude on the other hand to Mrs Andrew who has appeared here under the ELAAS scheme for the assistance she gave us on one of the many matters raised by Mrs Martin, and we again express our gratitude to her for that.