MR K LLOYD-HARRIS v LEICESTER CITY COUNCIL [2001] UKEAT 726_00_0802

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 726_00_0802Case No Appeal No. EAT/726/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR K LLOYD-HARRISAPPELLANTLEICESTER CITY COUNCILRESPONDENT
Before
Mr Recorder UnderhillDate 8 February 2001
[1]APPEARANCES For the Appellant VERONICA GROVES Legal Representative 88 Crawford Gardens Barrowell Green N13 5TE MR RECORDER UNDERHILL QC The Appellant was employed by the Respondents as a museum assistant. On 29 October 1999 he handed in a written letter of resignation in the following terms:
"As from today, 29 October 1999 I am leaving the museum service, the reasons being the lack of consideration for of their own policies, unjustified warnings. Continuing employment in such a hostile environment is going to have a ever more adverse effect on my health that it already has and that is considerable."
In the event, his employment formally ended a few days later.[2]He brought proceedings in the Employment Tribunal claiming that he had been unfairly constructively dismissed. There had been a long history of acrimony and difficulty between the Appellant and some of his colleagues - in particular, a Ms Cox and a Ms Kaproski - which had caused serious stress and distress to the Appellant. The essence of his claim before the Tribunal was that the Respondents, and in particular the responsible manager, Mr Hackett, did not do enough to cope properly with the problems which the relationship between himself and Ms Cox and Ms Kaproski was causing. This was said to constitute a fundamental breach of the duty of trust and confidence.[3]The Tribunal in their Reasons promulgated on 18 April 2000 reviewed fully the recent history of the dispute, though they did not attempt to disentangle its origins, and the circumstances leading up to the Appellant's resignation. They held in paragraph 14 as follows:
"The principal issue put to us by the applicant has been the breach of the duty of mutual trust. However, we are quite satisfied that no breach of that duty has been shown by the applicant. Whilst it is clear that there were problems between the applicant and others, they were mutual disputes between them. The manager, Mr Hackett, was trying his best to resolve those personal disputes and we particularly note that he did not take disciplinary action against the applicant in relation to them until the incident on 26 August 1999."
We interpose to say that that was the most serious of the incidents between the applicant and Ms Kaproski, which involved an allegation that Ms Kaproski had assaulted the Applicant by throwing a bunch of keys at him. Returning to the decision:
"It seems to us that he dealt with each issue as it was raised in a proper and reasonable manner to attempt to resolve the issues between the members of staff. The applicant is not justified in criticising the management for those relationship problems. It is also important to consider that the applicant's main problems were with Ms Cox and Ms Kaproski. Ms Cox left in July and before the applicant resigned he knew that Ms Kaproski was leaving and indeed in the last part of his employment she was not present, because she herself had gone on the sick. At the time the applicant left he was not entitled to think that there had been a breach of the duty of mutual trust entitling him to leave."
And in paragraph 15, referring to a verbal warning that the Appellant had received on 26 August, following the incident we have referred to, they said:
"15. We do not consider that giving the applicant a verbal warning on 26 August was a breach of contract nor putting it together with all of the other incidents was the applicant entitled to treat it as a breach of contract."
[4]Those were pure findings of fact. If they were open to the Tribunal in law they are fatal to any claim of constructive dismissal. We have read carefully the Notice of Appeal, and listened to the submissions of Ms Groves, based on the skeleton argument submitted on behalf of the Appellant. But they have failed to identify any basis on which it can be said that the findings which the Tribunal made were not open to them.[5]Commenting very briefly on the grounds of appeal, which are essentially the same points as contained in the skeleton, though differently arranged, the first point alleges:
"(1) The tribunal erred in law by failing to construe Leicester City council's (the respondent) attempts to dismiss Mr Lloyd-Harris without giving him the appropriate warnings under their disciplinary code as a fundamental breach of the implied term of mutual respect…"
This refers to the manner in which the Appellant's sickness problems had been dealt with by the Respondents. As explained in paragraph 10 of the Reasons, the Appellant had a poor absence record due to sickness. He had been seen by the Respondents' occupational health service, in accordance with their procedures, who had certified in a short form report that he was suffering from a chronic condition, as a result of which his attendance level was unlikely to improve. He sought, as he was entitled to, a second opinion because he did not accept that finding. The first appointment made with a doctor for that second opinion was cancelled by him. He was then warned that if he did not attend the re-arranged meeting, the Respondents would proceed on the evidence they already had, and the likely outcome was that he would be dismissed. The Tribunal found, as they were entitled to find, in paragraph 16 of the Reasons that that stance adopted by the Respondents did not constitute a breach of contract, and (though this perhaps does not perhaps matter) we would respectfully agree.[6]The second point raised in the grounds of appeal complains that the Tribunal should have found that the Respondents' failure, as the Appellant puts it, to cope with the serious unresolved problems that he had been having with other members of staff constituted a fundamental breach. We have dealt with that: there is no error of law in the Tribunal's contrary finding.[7]The third ground, which refers to the duty of the employer to provide a safe working environment, is really only another, and with respect more artificial, way of putting the same point about the problems caused to the Appellant by his relationship with Ms Cox and Ms Kaproski.[8]The fourth point raises an incident in which in August the Appellant had been reprimanded by Mr Hackett for being improperly dressed. The Tribunal found, as it was entitled to, that the reprimand - such as it was - was justified. It was in any event many weeks prior to the resignation.[9]The fifth ground merely makes an allegation of perversity, and alludes to the fact that the Tribunal did not take long to make up their mind. That, of course, could not give rise to any error of law. It also alleges that the decision was made contrary to the weight of the evidence: that merely reveals that this is indeed an attempt to go behind the Tribunal's findings of fact.[10]Finally, at ground 6 there is a reference to the fact that the Tribunal heard evidence of an earlier disciplinary incident involving the Appellant, in which he had received a warning. That warning was to lie on his file for a year, and it is suggested that for it to be alluded to after that period had expired was an error of law. We cannot possibly accept that. The Tribunal were entitled to hear evidence of this incident, as part of the background. It was in no sense prejudicial to the Appellant; and there is no reason whatever to believe that the Tribunal gave it any improper weight.[11]In these circumstances, we do not believe that there is an arguable point of law here. We dismiss this appeal.