MR A O MCCONNELL v (1) LEICESTERSHIRE COUNTY COUNCIL (2) MRS J STRONG [2002] UKEAT 713_02_0111

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 713_02_0111

Case No Appeal No. EAT/713/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A O MCCONNELLAPPELLANT

(1) LEICESTERSHIRE COUNTY COUNCIL (2) MRS J STRONGRESPONDENTS

Before

His Honour Judge J Altman Mr J C Shrigley Mr S M Springer

Date 1 November 2002

[1]APPEARANCES For the Appellant MISS L BUSCH (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE J ALTMAN : This is an appeal from the decision of the Employment Tribunal held at Leicester over three days in January, March and April 2002. The unanimous decision of the Tribunal was that the Applicant was not dismissed and it is from that finding that he appeals. It comes before us today by way of preliminary hearing to determine whether or not there is one or more points of law which can properly be argued in full before the Employment Tribunal.

[2]The issue before the Employment Tribunal really revolved around the question as to whether the employers were entitled to direct the Applicant to work at a particular school, without being in breach of his contract of employment in the circumstances of the case.

[3]The Applicant was a very well qualified teacher, particular in the area of pupils with learning difficulties and other forms of difficulty. He had experience not only in actual teaching but in teaching teachers, in lecturing over a number of years. No doubt, the work with pupils of this kind, whilst potentially rewarding, is specialised and very demanding and at times stressful and it appears that the difficulty, as difficulty there was, that the Applicant had in agreeing to a particular posting, appears to have related to his own conscientiousness and belief that he himself was not the man for that particular type of work. But that does not deal, admirable though that approach may be, with the issue before the employers and the Employment Tribunal, which is whether what happened can be said to have been a fundamental breach of contract and one which led to the termination of employment by the Applicant.

[4]The contractual clause under which the employer acted was set out in the Decision of the Tribunal and came within statutory regulations as follows:

"Applicant teacher ... shall carry out the duties of a professional teacher as circumstances may require: . .. (b) if he is employed by an authority on terms under which he is not assigned to any one school, under the reasonable direction of that authority and of the head teacher of any school in which he may for the time being be required to work as a teacher."

[5]The Applicant was part of what is called the Specialist Teaching Service and the school to which he was assigned was Maplewell Hall School, a special school with secondary age pupils with moderate learning difficulties. The Applicant went to that school but took small groups rather than a whole class. There were staffing difficulties and therefore it was necessary to obtain others. There was a need for a teaching of English.

[6]The Employment Tribunal found that volunteers were sought and that a number of steps were taken to get somebody to deal with the matter. They found in paragraph 3(i) that in order to identify someone who was effectively to be directed to do the work in the absence of volunteers Mr Barlow, the Service Manager of the team of which the Applicant was part, drew up criteria and applied them. The Applicant was identified, they found, as the person most suitable to be placed at Maplewell Hall, but on being informed about it the Applicant said he did not wish to teach there. He was then directed to teach there on a short-term basis and this clearly upset the Applicant and there were a number of meetings and discussions about it. During this time, towards the end of November 2000, the Applicant was at times away from work with compassionate leave.

[7]There were meetings, so the Employment Tribunal found, at which the Applicant had with him Union representatives and in the end, after the Applicant's return to work, there was a meeting on 28 November at which the Applicant was told that he had only to work for three weeks up until Christmas and that the classes were to be of no more than ten pupils. He was also to be given classroom support, an honorarium of £3,000 and two management points and to be paid travelling expenses. But the Applicant then informed the Respondents that he was unable to take up the post and he was advised, by his doctor, to take a week from work. The sequence of events then seems to be rather important.

[8]Although in December 2000 the Applicant sent a draft letter of resignation to his Union representative, he did not submit a letter of resignation to his employer until 23 February 2001. What happened in the meantime was that initially the Applicant was away, apparently through stress, or his doctor certainly diagnosed stress, and the advice given to the Applicant was, following the draft of the resignation letter being sent to the Union, that the Union believed that, in fact, the claim of constructive dismissal would be likely to be unsuccessful and the Applicant was asked to reconsider his position. The Applicant was concerned about this and took it up further with his Union and then sought to see if there could be a negotiation for early retirement.

[9]In the meantime, school term ended and the requirement for the Applicant to work at Maplewell Hall in the way arranged came to an end. Other staff had been found. The temporary emergency had been resolved and by that time, therefore, the continued employment of the Applicant with the Respondents was not then to be at Maplewell Hall in the way that the Applicant found unacceptable.

[10]In mid-January the Applicant was told that his request for early retirement had been rejected and in February he submitted his letter of resignation. Throughout this time the Applicant was unfortunately on sick leave and in due course his employment came to an end. It is quite clear to us that during that period the Applicant went through a very difficult time indeed and it is quite clear to us, from what we have seen, that he genuinely felt on the findings of the Tribunal that, in the crude way I put it in the beginning of this judgment, this was not work for him or work that he could bring himself to do, notwithstanding the fact that he had considerable experience and expertise in this area of work, although not in the sort of particular circumstances nor necessarily with these sorts of groups of pupils.

[11]In reaching their decision the Employment Tribunal said that they were satisfied that the criteria were reasonable and the selection of the Applicant was fair. The decision is criticised on the basis that the criteria are not set out but, of course, the parties had the criteria before them and must have known what the Tribunal was talking about. Furthermore, we have been told, that the criteria was that the person concerned should have had experience with small groups of secondary-aged children with learning disabilities, and we have been told today by Ms Busch, who has helpfully put the matter as fully and comprehensively as it possibly could be on behalf of the Applicant, that he did not qualify for that category. He had taught for an hour or so in his home, a few together, not just one to one, but he did not fulfil that criteria.

[12]We accept the point made that that was not spelt out in the decision of the Tribunal but we note that they went on to say, "We accept that he did not have experience of teaching pupils with moderate learning difficulties in class but neither did any of the other candidates". However, the Applicant had taught such pupils on a one to one basis and in small groups. Whether the phrase "such pupils" is strictly correct or not, may be a matter of dispute and it may be, as we understand the position, that the Applicant would say that the pupils he had taught came into a rather different category. The Tribunal found that he had taught at Maplewell Hall itself and they set out his qualifications and they concluded that he had qualifications and some experience of what was required.

[13]The criticism therefore, it seems to us, that the criteria were not spelled out and that the Tribunal erred, in fact, is really marginal to their findings. It may be that a different view would have endorsed the position of the Applicant that he did not qualify but the Tribunal had an issue between the parties. The employer said, "We considered that his experience and his qualifications did fit him for this sort of work". He said that it did not. We can only entertain an appeal on a point of law and it seems to us, on all the material before it, the Tribunal were entitled to come to the view on that that they did.

[14]In paragraph (f) the Tribunal came to the conclusion that the local authority had the contractual right to direct the employee to work at Maplewell Hall for the three-week period and to remind him that, if he refused without reasonable excuse, disciplinary proceedings would follow. They said, in terms, the fact that he was told this cannot, in the circumstances, amount to a breach of contract. They recognise in paragraph (g) that the Applicant would have preferred to have carried on the work he was doing at the time and feared he would not be able to bring the relevant expertise to bear. There is a criticism of that finding in the sense that the Tribunal, it is said, should not have looked at the psychological approach of the Applicant. But we read that in a rather different way. They were saying in effect, it seems to us, that they recognised there are arguments on both sides and, on the one side, it may be said that this was not, by the Applicant, the sort of work that he should be doing but that the Respondents had a different view and we come to the conclusion that, therefore, there is nothing wrong with that paragraph and we are supported in our conclusion by what the Tribunal then said, which was "but a balance had to be struck".

[15]The findings of fact reveal that the Applicant sent in his letter of retirement after three events had taken place. First, the direction that he objected to was no longer applicable because it had expired. Secondly, he had sought the advice of the Union and they had cautioned him against constructive dismissal as being a valid claim and, thirdly, he had failed in his application for early retirement.

[16]In those circumstances we cannot see how any Employment Tribunal, directing itself on those facts about which there is no dispute, could come to any other conclusion than that the decision to leave was not caused by a breach of contract because, although it came some months later in chronological terms, in notional terms, and putting it at its highest the Applicant "jumped too soon". If an employee is given an instruction which he resents and is warned that there may be disciplinary action if he refuses, there is still quite a lot of water to flow under the bridge.

[17]An employer is entitled to give instruction and to explore the belief that there has been an unreasonable refusal. That is not a breach of contract. That is because, during such disciplinary procedure that may follow, who knows what may happen. The employer may accept that there should be no disciplinary action. The employer might say, "Well, alright, we accept that on this occasion you may have a case. We will take no action". It surely is only if the employer acts in breach of contract that one can begin to argue that there is a dismissal, but where an employer simply threatens a particular action that may not, in the event be fulfilled, it cannot be argued, it seems to us at that point, that there has been a dismissal.

[18]In this case the Employment Tribunal in their conclusion went further. They said this; that the local authority had the contractual right to direct the Applicant to work at Maplewell Hall for the three-week period. So that they found, quite clearly, that the Respondents did not act in fundamental breach of contract. It may have had unfortunate results which led to the decision of the Applicant to leave his employment, but we can find no point of law to support the proposition(a) that there was a breach of contract which should have been found by the Tribunal and that

(b) even if there had been such a breach that that was the cause of the dismissal.

[19]Accordingly, this appeal if heard in full would be bound to fail for containing no arguable point of law and we are driven to dismiss it at this stage.