MRS C A WILLIS v MR & MRS NANKOO T/A CLIFTON REST HOMES [2001] UKEAT 1027_00_1605

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1027_00_1605Case No Appeal No. EAT/1027/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS C A WILLISAPPELLANTMR & MRS NANKOO T/A CLIFTON REST HOMESRESPONDENT
Before
Her Honour Judge Wakefield Miss A MackieLord Gladwin of CleeDate 16 May 2001
[1]APPEARANCES For the Appellant MR DAVID DALEY (of Counsel) Appearing under the Employment Law Appeal Advice Scheme HER HONOUR JUDGE WAKEFIELD This is an Ex Parte Preliminary Hearing of the appeal of Mrs Carol Ann Willis against a finding by an Employment Tribunal sitting at Birmingham whereby in a decision promulgated on 27 June 2000 it dismissed her complaint of constructive unfair dismissal. There is no appeal against a further finding of that Employment Tribunal as regards unlawful deduction from the Appellant's wages.[2]This Preliminary Hearing was first listed at this Appeal Tribunal on 15 December 2000 but was adjourned from that date in accordance with the Judgment of Mr Justice Bell by which the Appellant was to file evidence by sworn affidavit or signed witness statement and was to produce the witness statement which was the basis of her evidence in chief at the Employment Tribunal. The reasons these matters were ordered to be done appears in paragraph 3 of the Judgment given on that occasion as follows:
"Mr Rose [he was the ELAAS representative of the Appellant on that occasion] tells us that he has been instructed by Mrs Willis that quite apart from the allegations of harassment by her employer which are mentioned and decided upon in the decision of the Employment Tribunal and its extended reasons, she put a case before the Employment Tribunal of harassing in the form of bullying, shouting and overburdening her with work which, she contented, was what led to her resignation. She says that those allegations appeared in the witness statement which she put before the Employment Tribunal."
[3]The original witness statement of the Appellant as used at the Employment Tribunal contains the following as, it appears to us, the only paragraphs which are particularly relevant to the present appeal. They are paragraphs 33 and 34 and read as follows:
"33 After that [and 'that' appears to refer to a meeting which had taken place on 4 August] every time I went to work both Mr and Mrs Nankoo would come in when I was getting the residents ready for bed, shouting at me or phoning me to say I was not doing my work properly. 34 They started giving me extra work to do and then they would say that I could leave if it was too much work for me. They made me very ill. I was taken into hospital twice at Good Hope Hospital in Sutton Coldfield."
[4]In addition to having that statement before us today we also have the new statement of the Appellant which was ordered. It is in the form of a letter dated 5 January 2001 and it reads as follows:
"I truthfully confirm that I gave evidence verbally at the Birmingham Tribunal stating that I was continually harassed and that they would shout at me and bully me and make me do extra work and also my former employers would say if I was not happy I should leave and as a result of continual intimidation from my former employers towards me I was becoming very distressed this in turn was very upsetting for the residents in my care eventually my health in general was affected and I was forced to resign on 24-11-99."
We do not consider that the other paragraphs in the original witness statement which are referred to in the Notice of Appeal and skeleton argument are relevant to this appeal, that is paragraphs 28-32, since they refer to a meeting in respect of which the Employment Tribunal made very clear findings as to the Appellant being the one who did the shouting.[5]The grounds of the current appeal, which are amended grounds, as particularly relevant in our view are set out at paragraphs 8(c) and 8(d) and they are as follows:
"(c) The employment tribunal omitted to make any finding of facts as to whether the Respondents did in fact as alleged at para 33 persistently shout at the Appellant when she was putting residents to bed, not did it make any finding of fact as to whether the Respondents gave the Appellant extra work. The employment tribunal further omitted to make a finding of fact in relation to para 36 of the Appellant's witness statement that the Appellant declined to return to work on account of the shouting and bad feeling. (d) The failure to consider and make findings about the principal reason for the resignation it is respectfully submitted amounts to an error of law."
We have been quite unable to find any merit in these grounds.[6]The Tribunal, in the quite lengthy decision following the two day hearing, dealt with the submissions of the Appellant as regards persistent harassment and extra work at paragraphs 10 and 11 of the decision as follows:
"10 What happened was that the Applicant's hours were reduced and she was given extra duties to perform. In consequence, the implied duty of trust and confidence and the respondents duty to care for the Applicant had been breached. 11 The persistent harassment suffered by the Applicant constituted a breach of duty and of the implied duty of trust and confidence justifying her resignation."
Those were the submissions that were put to the Tribunal and so recorded by them. They therefore clearly had that evidence and the case which was being put forward on behalf of the Appellant in mind when they made their findings. They dealt with their findings of fact and with the conduct of the Respondents at some length in the decision, and they clearly preferred, as they stated in terms, the evidence of the Respondent to that of the Appellant. Particularly relevant are their findings at paragraph 18 and paragraphs 26 and 27. We will set out what are the core matters in those paragraphs:
"18 ………The respondents spoke to the Applicant and issued verbal warnings to her. Clearly the failure to issue drugs to patients and signing records to the effect that they had been administered, when they had not are serious matters relating to the well-being of persons within the respondents care. Accordingly, the tribunal is satisfied that the Respondents were entitled to be concerned about the Applicant's failure to follow procedures and to raise the matters with her. The Tribunal is further satisfied that this was not to harass the Applicant but to do what any other reasonable employer acting reasonably would have done in the circumstances. Indeed not to have raised the matters with the Applicant would have been to abdicate responsibility for the proper and effective management of the residential home. The verbal warnings issued to the Applicant were justified in the circumstances and the tribunal finds they were issued not because the Applicant had raised a query about her wages but because she had failed to follow and to have regard to the procedures referred to."
Then at paragraphs 26 and 27 they refer specifically to the allegation that harassment had occurred because a second originating application had been presented. They find specifically that that was not the case. They refer in paragraph 27 to the matter as follows:
"The tribunal rejects the Applicant's contention that she was subjected to continual harassment by the Respondents arising because of her application to the tribunal to enforce her "
Statutory Rights to minimum wage and paid holiday". Having heard the evidence of both the Applicant and Mr Nankoo, the tribunal accepts and prefers the evidence of Mr Nankoo to that of the Applicant and in particular, the tribunal finds that: [I go on to (b) of those findings] (b) The matters raised by the Respondents with the Applicant in the months of September and October 1999 (as referred to in paragraphs 6(ix) and (x)) were raised not for the purpose of harassing or intimidating the Applicant, but because they presented serious issues that needed to be dealt with and which any responsible employer acting responsibly would wish to raise and address with their employee. By raising such issues was not to breach the Applicant's contract of employment." Those matters, we find, are very specifically dealt with in a quite proper manner.[7]Although there is no specific reference in the conclusion of the Employment Tribunal as to the Applicant being given extra work, we are entirely satisfied that they had this allegation in mind from their references to it in paragraph 10, which I have already set out, and from their overall conclusion that the Respondent did nothing to justify the Applicant terminating the employment. We also note that in the first originating application, there was no complaint by the Applicant as regards being given extra work nor was there any reference to this in the original Notice of Appeal which she drafted and therefore we find that that matter was clearly not one which was uppermost in her mind at either time. The Appellant has demonstrated no error of law in the decision of the Employment Tribunal. This appeal cannot succeed and it is therefore dismissed at this stage.