MRS BRENDA HEDGECOCK v COMMISSIONERS FOR HM REVENUE & CUSTOMS [2005] UKEAT 0083_05_0107

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0083_05_0107

Case No Appeal No. UKEAT/0083/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS BRENDA HEDGECOCKAPPELLANT

COMMISSIONERS FOR HM REVENUE & CUSTOMSRESPONDENT

Before

His Honour Judge Reid

Date 1 July 2005

[1]APPEARANCES For the Appellant MR GERALD LEAN (Representative) For the Respondent No appearance but written representations on behalf of the Respondent SUMMARY Constructive Dismissal Appellant was to do some receptionist duties as well as typing. She felt unable to deal with the public, and went sick with stress. The employer(a) offered training and

(b) told her that if there was a medical reason for not doing reception work, she might be excused. When her doctor signed her off as fit to work, she resigned. Held: no breach by employer of duty of trust and confidence. The employer had no duty to launch its own medical investigation and keep her off reception duty HIS HONOUR JUDGE REID QC This is an appeal from a Decision of an Employment Tribunal held at Reading on 22 November of last year. The Decision was sent to the parties and entered on the Register on 2 December. By that Decision, which was a majority Decision, the Tribunal found that the Appellant's (Mrs Hedgecock) claim of constructive dismissal failed and was dismissed.

[2]She appeals against that Decision and we are extremely indebted to Mr Lean, her representative who has appeared for her today, who has put the argument on her behalf cogently, attractively and succinctly.

[3]The factual background to the matter is that Mrs Hedgecock was employed as a typist by the Inland Revenue back in November 1991. In February 2001 the job was re-graded and she became an "E2" which was an integrated typist, as it was described in the job redefinition in September 2001. In March 2004 there was a meeting at which all the "E2"s were advised that they must take turns working on the IREC, that is effectively the reception desk dealing with people coming in and raising queries. She did her first stint accompanied by a more experienced receptionist on 2 April but, as a result of that, she suffered from anxiety and stress. There had been something in her background when she was young which made it difficult for her to deal with the public at large. She was, at the time, under considerable stress from other domestic matters and was, it appears, also suffering from high blood pressure.

[4]Her husband wrote to the Inland Revenue on 4 April and delivered the letter by hand. The second and third paragraphs of that letter read: "I understand that Brenda has repeatedly advised you she is not happy with this instruction that she should work on reception. She is not only, not confident when working face to face with the public, she has an almost pathological dread of being put into this position. She has already been advised by her doctor that her blood pressure is extremely high, and I am genuinely concerned that your actions could have grave results. She has worked in similar positions on two previous occasions and found both untenable, which is why she returned to typing where the situation should not occur. In addition to the obvious health implications of this instruction I would also question whether any consideration has been given to the safety issues which inevitably affect staff in government agencies dealing face to face with members of the public, many of whom may have grievances and act irrationally. As far as I am aware, she has not been given any training in how to deal with customers who may, not only be verbally abusive but also physical. I have every admiration for your staff who can cope with these problems, but Brenda is not, and never will be comfortable in this role".

[5]She went off sick at the same time and medical certificates were provided describing the diagnosis as stress-related. The first certificate was for a period of two weeks from 6 April. The response to the letter, so far as the Inland Revenue were concerned, was that Debbie Jones, who was the relevant manageress, e-mailed the Area Human Resources Officer and asked if she could "pick her brains": "I have an integrated typist in this office. Recent changes here have meant that all E2s are being expected to take a turn on the IREC reception as there is no longer a dedicated Customer Service team. This has caused a major problem with this individual and has led to a letter being received from her husband indicating that we have no right to make her do this work and the thought is making her ill. It is likely to blow up and before I reply I need to know where I stand. I can fax a copy of the letter over to you if it would help. Are there any specific instructions regarding the duties of the integrated typist and where would I find them? Where would we stand if I stood my ground? The problem would be that if I excuse this individual from IREC reception, there are a few others who would jump onto the band wagon".

[6]A substantive response was then sent to the Appellant in which, at paragraphs 3 and 4 of the letter, Ms Jones wrote:

"The letter from John suggests that you are still employed as a typist. This role has changed over the years and you are now considered to be an integrated typist and as such you are expected to undertake all duties of an E2 officer. I have taken further advice on this, both from Area and Regional personnel sections who confirm my understanding. Training can be provided on dealing with difficult customers if you feel it would be necessary and initially you would not be left alone on reception. However, should you still consider that acting as a receptionist for part of the day will increase your health problems, then it may be possible to seek further advice from BMI"

BMI being the Inland Revenue's health consultants. There was a telephone conversation on 6 April between Mrs Hedgecock and Mrs Gould who was the line manager and also the Union representative of Mrs Hedgecock. Mrs Gould's note in relation to that includes this passage: "Brenda reiterated she was a typist and did not accept or see IREC receptionist was a role for her. I said she was an integrated, typist and as such, was expected to do E2 duties. She replied she had done this, such a returns logging etc and it was not her fault this work had gone. I explained that she could not pick and choose her duties. She was an E2 and as such, was under an obligation to do as asked. Unless she had a valid medical reason that excused her from specific duties, she would be expected to do any and all duties appropriate to her grade. I stressed that I did not want to see her getting into problems over this. I asked her to phone us after she had gone to the doctor's so that we had some idea of expected time off; also whether it was certified sick leave or annual leave. Brenda agreed to this".

[7]There was, a couple of days later, an internal communication from Ms Jones to the Oxford & Bucks Area Office about Mrs Hedgecock which included this passage under question 6:

"Have you noticed any change in the employee's performance or have they advised you of any problem that they have been experiencing either at work or at home? Performance has been fine but Brenda has had significant problems…"

Ms Jones then specified what the problems were. "….She has been and looked totally worn out and she has continued to run the family home. It was due to this that she reduced her hours to that of part-time working but intends to return to full-time working in due course". It was also noted that the IREC reception work might bring her into contact with difficult customers, but she would not be expected to deal with them. Maximum IREC duties were 1½ hours to 3 hours, two or three hours a week with support from the whole office.

[8]The Tribunal's findings of fact were that following a further medical certificate for two weeks from 19 April, again identifying stress-related problems, Mrs Hedgecock saw Mrs Gould and discussed matters with her. Part of the discussion related to the difficulties about the IREC but there was then the finding at paragraph 21 of the Decision. The Tribunal accepted also that Mrs Gould explained to Mrs Hedgecock that if there was some medical reason as to why she could not undertake the IREC duties, then that medical evidence would be considered and could result in her being exempted from those duties. Unbeknown to Mrs Hedgecock, Ms Jones referred her sickness certificate to HR for onward transmission to BMI, although there is no evidence it ever reached them. The Tribunal also made the observation that it might have been helpful for the Claimant to have known that this was happening.

[9]The next stage was that there was a final sickness certificate which indicated that Mrs Hedgecock was fit to return to work. She was signed off from 3 May to 10 May and the diagnosis was again repeated to be a stress-related problem. This time there was a note under item B on the right hand side of the form. "If the doctor has given you a date to resume work: date you intend to start (or seek) work for any employer or as a self-employed person: Monday 7 May 04. " I think Monday, in fact, was 10 May. But on that self same day, on 7 May when she said she was going to resume work, she resigned. The letter of resignation was set out in full at paragraph 23 of the Decision and I do not need to repeat it. It suggested, in essence, the object was to make typists redundant. It was accepted that she had been told that subject to there being some medical reason why she should not, she would probably have to do the IREC duties and it was this that had led her to her resignation. The letter of resignation was accepted with, one might say, unseemly alacrity by the Inland Revenue.

[10]What has been submitted to us was that the minority member in the Decision was correct in his assessment of the situation. He was recorded as saying as follows at paragraph 30 of the Decision:

"The breach in question was a breach of a duty of care and duty of trust and confidence by failing to investigate fully the Claimant's condition fully post 2 April 2004 and, in particular, the reason why she had suffered from stress and evidenced in her GP's medical certificate following her carrying out reception duties on 2 April the Respondent was in breach of the duty of care of mutual trust and confidence that must subsist in any employment relationship. Had the Respondent troubled to fully enquire into the reasons for stress and its relationship for the carrying out of receptionist duties following 2 April, then, in his view, the Claimant may well not have resigned. She might have waited to see what guidance was given by the BMI on their consideration of the matter and she did not have this opportunity."

[11]What was said to us was that the duty was clearly on the employer, once they had been been told of the problem to make investigation and the way they had dealt with the matter was incorrect. They had not told her that they were seeking medical advice of their own and they had made it clear that if she came back, she was going to have to do the job that she did not feel she was able to do.

[12]It seems to us that we sit here in an appellant capacity and the question for us is not whether we would have shared the minority's view had we been trying the case, but whether the view of the majority could be said to be wrong in law or otherwise wholly unsustainable on the facts. The majority were unable to accept the view that there was a breach of duty of trust and confidence. They took into account the wording of Ms Jones's letter of 5 April confirming that she was expected to undertake all duties, but pointing out that there would be training available and also they made it clear that they accepted the CIR's evidence that the extent of her distress was not apparent. That she was unhappy with having to do the duties was clear, but that was the extent of it. The training that was available and the fact that she was not to be left alone in reception was one factor but also the employers made clear that there were options open. If there were medical grounds, then she could be excused. The fact that the BMI were involved seems to us to be a factor. It seems to us also that she was certified fit for work by her own doctor who, we must assume, knew full well what the work would entail and why it was that she had suddenly become so particularly unhappy. It does not seem to us that in all those circumstances, where she has been certified fit for work, and where the possibility of her being excused from particular duties if there were proper medical evidence, was still open, the employers were in a position where they must be said to have been in breach of the duty of trust and confidence.

[13]We have considered the view expressed both by the majority and the minority with care. We have looked at the totality of the documentation and we take the view that this is not a case where it can be said that there has been any error of law in the Decision that was made by the majority. They set out the tests of law correctly, they then provided an answer to it, and it was an answer that was available to them on the material that they had. It follows that attractively though the appeal has been presented to us, there is no basis in law on which the Decision can be upset and the appeal will, therefore be dismissed.