CAMDEN AND ISLINGTON MENTAL HEALTH AND SOCIAL CARE TRUST v MRS E ATKINSON [2007] UKEAT 0058_07_2008

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0058_07_2008Case No Appeal No. UKEAT/0058/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CAMDEN AND ISLINGTON MENTAL HEALTH AND SOCIAL CARE TRUSTAPPELLANTMRS E ATKINSONRESPONDENT
Before
His Honour Judge McMullenDate 20 August 2007
[1]APPEARANCES For the Appellant Miss K Newton (of Counsel) Instructed by: Beachcroft LLP Solicitors 100 Fetter Lane London EC4A 1BN For the Respondent Mr N Primost (of Counsel) (Appearing under the Bar Direct Access Scheme) SUMMARY Unfair dismissal – Constructive dismissal The Claimant, a long serving charge nurse accused of institutional abuse of patients, was suspended in breach of contract for she was not offered trade union representation at a suspension meeting. Suspension, and the refusal to lift it at an investigatory meeting, destroyed the relationship of trust and confidence without reasonable cause. The Claimant retired as a result of that treatment. The majority Employment Tribunal Judgment of constructive unfair dismissal was upheld. HIS HONOUR JUDGE McMULLEN QC This case is about constructive unfair dismissal following the suspension of a charge nurse pending investigation of allegations against her of institutional patient abuse. The judgment represents the views of all three Members. We will refer to the parties as Claimant and Respondent. Introduction[2]It is an appeal by the Respondent in those proceedings against a reserved majority judgment of an Employment Tribunal sitting over five days at London Central, Mr D A Pearl Chairman and Mr J G Moher; Mrs J Cameron dissenting on one issue and thus on the outcome. The reasons were registered on 1 December 2006.[3]The parties are represented respectively by Mr Norman Primost and Miss Katharine Newton of counsel; different counsel having appeared for the Respondent below. The issues[4]The essential issues as defined by the Employment Tribunal were these:
"1 This is a claim of constructive unfair dismissal which was instituted by ET1 received on 14 February 2006. The Claimant is a charge nurse who worked in the field of mental health for about 32 years. She resigned her employment on 31 October 2005, giving notice which expired on 12 December 2005. Her claim is that she was entitled in law to resign and claim dismissal, i.e. constructive dismissal. 2 The broad issue which we have to decide is whether or not, within the terms of section 95(1)(c) of the Employment Rights Act 1996, the resignation constitutes a constructive dismissal. If so, it will be for the Respondent to establish the reason for the dismissal within the terms of section 98(1), (2); and it will be for us then to determine whether the dismissal was unfair within section 98(4). However, the predominant issue to which alt attention has been focused in this case is on the question of alleged fundamental breach of contract by the Respondent entitling the Claimant to resign. There is no point taken against the Claimant as to waiver, delay or acquiescence. There is, however, a further issue in the case which is whether or not she resigned in direct response to such fundamental breach as she is able to establish. The Respondent's case is that she resigned for family reasons which are unrelated to the actions of the Respondent which she complains about. 3 Those actions are (a) suspending her on 20 October 2005; and (b) thereafter, by the conclusion of the meeting on 31 October 2005, not revoking the suspension so as to permit the Claimant to return to work as a charge nurse."
Before us, the issues have been conveniently summarised as (1) breach of contract; and (2) causation. The Employment Tribunal decided by a majority in favour of the Claimant on breach of contract and unanimously in her favour on causation. The Respondent appeals. Directions sending this appeal to a full hearing were given at a preliminary hearing by HHJ Serota QC and Members. The legislation[5]The sole relevant provision of the legislation is the Employment Rights Act 1996 , Section 95(1)(c), which deals with constructive dismissal and provides that it will occur if the employee terminates the contract under which she is employed, with or without notice, in circumstances in which she is entitled to terminate it by reason of the employer's conduct. The Employment Tribunal directed itself by reference to that provision and what we hold to be the leading authorities, which are cited in the reasons at paragraphs 40 to 42, to which we will return. The facts[6]The Respondent is an NHS Trust in North London. The Employment Tribunal introduced the parties as follows:
"6 The Claimant has been a nurse in the field of mental health for many years and it is accepted by all those who gave evidence (as is also reflected in the ET3) that she was a conscientious and dedicated employee. The evidence goes a little further and was to the effect that she has much compassion for the patients for whom she cared. From about 1993 she had worked as a charge nurse in Daleham House and she was working there at the time of her resignation. Daleham House has a number of residents, about one-third of whom are detained under the Mental Health Act 1983. Other patients at the unit have been referred to as "informal" and we assume that they are not subject in the same way to the Mental Health Act. There are some 20 beds at the unit and in 1993 it was designated as an intensive rehabilitation unit for psychiatric patients. Technically, it appears that the unit was treated as a hospital ward and it had formerly been part of the Royal Free Hospital……CHKthey carried out some of the unit manager's responsibilities. We received no detailed evidence on this topic. The next tier of management is the Service Manager and in September 2005 Mr Evans had been fulfilling that role for about three months. 7 There were no earlier complaints against the Claimant and the chronology begins with a complaint that was made on 5 October 2005 to Mr Evans by Mr Stanfield. He had been working for the Respondent for about five years and was a manager of another rehabilitation unit. However, he was also undertaking training as a nurse at Middlesex University and he was on placement to Daleham House. We ought also to add that Mr Evans qualified as a nurse in 1989 and has worked in the field of mental health since at least 1991. On 5 October 2005 Mr Stanfield told Mr Evans about concerns that he had about the way in which patients were treated. He said that he had drawn these to Ms Graham's attention and, although we have no direct evidence, the implication is that nothing had been done about them. Mr Evans took the view on that day that the allegations were extremely serious and involved matters which could amount to institutional abuse. The allegations covered various different areas and were made against a variety of nurses. Mr Evans told us that institutional abuse was a term which in his mind connoted punitive treatment, a denial of choice to patients, the withholding of treatment from patients, denying them access to privacy and treating patients in a uniform manner, rather than as individuals with individual needs. 9 The allegation at paragraph 12 is directed towards the Claimant and it is alleged that on 4 October, at a shift handover, she stated to Mr Stanfield that a patient was angry with her because she had caught him smoking in the quiet room £80 I locked his door'. Paragraph 22 is that she was heard to state to a patient: 'I'm not letting you out with your father without a bath.' 10 Mr Evans, therefore, had a sizeable number of allegations before him and he took the view, as we find, that taken together they were extremely serious and could amount to institutionally abusive practices."
[7]There was a series of meetings by Mr Evans including a meeting with the Claimant. The Tribunal said this:
"We do not find that the lock out policy was regarded by Mr Evans as giving rise to an emergency. In relation only to that policy, we find that he was of the view it could be dealt with in due course."
There had been further meetings and then, on 20 October 2005, suspensions:
"16 On 20 October 2005 the Claimant and three others were suspended. It is convenient at this point to consider the Respondent's policies concerning suspension. There is a disciplinary procedure which (page 134) provides under the heading 'suspension' the following: "5.1 Suspension is not a disciplinary act and does not imply that there has been any misconduct, nor that there is any suggestion of guilt. It is a neutral act enabling the individual to be released from her or his place of work while receiving full pay, pending an investigation of allegations made." 5.2 Staff may be "suspended on full pay until the results of enquiries are known. Except in emergency, the local representative of the trade union or professional organisation will be contacted." 5.3 If it is undesirable for the employee to remain on the premises in a case of serious misconduct or other cause, e.g. health and safety, then she/he should be suspended on full pay ... as if working normally pending investigation…" 17 Claimants who are suspended are given a suspension information pack and this provides (page 150) that suspension is the temporary removal from the place of work and may be for a variety of reasons "the most common being to allow an investigation to take place following an allegation of misconduct, usually of a very serious nature."
It is again said that it is not a form of disciplinary action. 18 This document also provides (page 151) that at the suspension meeting the employee should have the opportunity to be represented by the trade union or professional body or to be accompanied by a friend or colleague. The exception is "in an emergency where the immediate removal of the employee is required" where the opportunity for accompaniment may not be possible. 19 This document also provides at page 153 that the investigating manager should be someone who is not connected with the allegation or be someone who has had no previous involvement in the matter being investigated." Those references to the procedure are borne out by the documents before us. Miss Newton, on behalf of the Respondent, accepted that the disciplinary procedure, only one page of which do we have in extract, is likely to be regarded as having contractual effect. It is a collectively agreed procedure with the relevant trade unions in a major public sector employer, capable of giving rise to contractual obligations as to the way in which the disciplinary process would be operated against any individual employee within its scope. The reference accompanying it to the suspension pack repeats the obligation which we hold to be contractual relating to suspension on full pay, and involvement of a local representative except in an emergency. Similarly, that provision is made clear by paragraph 3.1 which is as follows:
"3.1 At the suspension meeting you should have the opportunity to be represented by your trade union or professional body, or to be accompanied by a friend or colleague. However, in an emergency where the immediate removal of the employee is required, this may not be possible, Local representatives of the appropriate staffside organisation will be informed of the suspension as soon as practicable."
A manager is appointed to investigate and this should be someone who has no previous involvement in the matter being investigated. See clause 6.2[8]The Claimant was suspended at a meeting on 20 October 2005. She was not represented. There was no advance notice of the seriousness of the suspension meeting. Her union representative is Mr Hunter who was found by the Employment Tribunal, itself highly experienced, to be himself highly experienced in this area of work, who had dealt with many suspensions in the past. He was told of the suspensions of the Claimant and others on 20 October, and he was also told by Mr Evans that Mr Evans suspected institutional abuse of patients.[9]Mr Hunter met the Claimant and her husband on 28 October 2005 and it was intimated to him that the Claimant was intending to retire. This was conveyed to the Respondent's HR manager, Ms McCarroll. On 31 October 2005 an investigatory meeting was conducted by Mr Evans and the Tribunal said this:
"27 The investigation meeting took place on 31 October 2005 and it was towards the end of that meeting that the resignation letter (page 354) was handed in by the Claimant. It gave no reason for retiring and it only occupies two lines of text. The detailed meeting notes kept again by Ms McCarroll are at pages 356-360 although the notes are disputed. The meeting began with the Claimant being asked by Mr Evans about the lock out and smoking allegation that had been made."
At that meeting, a defence was put up on the merits relating to the existence of a long-standing policy of effectively locking patients out, and in respect of the requirement that patients have baths, although it is right to say that the allegation about baths somehow had disappeared by that stage. The Tribunal noted that the policy did not expressly say, "Patients should be locked out" but it regarded it as the policy and the practice of the employees to encourage the non-smoking policy of the Respondent.[10]The sequence of events during that meeting continued in this way:
"32 We find that Mr Hunter gave clear advice in the adjournment to the Claimant that the suspension would be unlikely to be lifted that day. The Claimant in her witness statement (paragraph 88) states when she realised that the suspension was not to be lifted "
I made a very abrupt decision without thinking to hand in a note to resign from work because of the false accusations, wrong allegations, great stress and pressure that I have been subjected to." This witness statement does not record any discussion of resignation or retirement with Mr Hunter at the earlier meeting when the Claimant had been accompanied by her husband." The Tribunal examined the reasons said later by the Claimant to be the reason for her handing in the letter, which she did after the adjournment during that meetin. The letter is very short:
"I would like to inform you that I am retiring from work. I hereby give you one month's notice as from today."
[11]Mr Evans tried to persuade her not to resign, as he was not in possession of all the facts and the investigation was ongoing.[12]There then occurred the following:
"He said she remained suspended, therefore, and when she asked whether she would be allowed to attend a course that she was booked on, she was told this was not normally allowed. She then handed in her letter. She stated that she was approaching retirement age and was intending to retire now anyway but had difficulties getting support from her manager (this last point had already been made by Mr Evans when the parties reconvened)."
[13]At that stage, Mr Hunter is recorded as saying that the Claimant's husband was terminally ill and the Claimant wanted to retire to be with him. That was the end of the meeting. The Claimant's employment terminated on 12 December 2005 after a period of service of some 32 years, all of which was unblemished.[14]The Tribunal was addressed on the law. As to the first issue, breach of contract, the majority view was that the Claimant had been denied the right to representation, which could have been crucial and was very important indeed. The Respondent regarded the situation facing it as serious, but the Tribunal accepted that there had been no reason to regard this as an emergency falling within the terms of the procedures which we have described. The Tribunal noted that in these circumstances the criticisms weighed against the Tribunal as to the bath incident and the lockout incident were not neutral acts, since they involved allegations of serious patient abuse. Thus, the Tribunal held that could seriously damage the relationship of the parties.[15]The Tribunal examined the decision to suspend the Claimant. She was suspended amongst a group of employees and the Tribunal held that there was what it described initially as an unreasonable exercise of the right to suspend, for it said this:
"50 We regard this as an unreasonable exercise of the right to suspend. The unreasonableness was to give no regard to the allegations the Claimant faced and to weigh their seriousness in the overall picture. It was compounded by the unjustifiable decision to deny her representation at the suspension meeting. When we turn to the detail of the two grounds of criticism, the decision to suspend can itself be seen to be unreasonable, such that we conclude that there was lacking any reasonable or proper cause to suspend her. The 'bath' allegation was relatively slight and she gave an answer at the suspension meeting that, as far as we can tell, was complete. It referred to a written care plan. The lock-out allegation amounted, potentially, to involvement in an unjustified practice. It was, however, a practice that had been carried out for eleven years and had the imprimatur (again, as far as we can judge) of the next two levels of management above the Claimant. The decision not to suspend Mr Kirk, because he no longer worked with patients, only serves to heighten our disquiet that the Claimant was suspended at all. We also know that the Respondent failed to consider the most obvious option to suspension. This was to ensure that the Claimant abandoned the policy there and then. We see from the subsequent interview that she had no difficulty in accepting the advice that the policy was 'illegal', using her term. It was not, we conclude, necessary to suspend her for the better protection of patients. The reality, rather, is that she was suspended because all the Daleham employees complained about by name were suspended."
[16]As it later put it for the sake of completeness, it found against the Claimant's submissions in two respects. That is that the Claimant contended she was suspended simply for performance of contractual obligations, and that the involvement of Mr Evans breached the procedure for having an independent investigator.[17]Turning then to the minority view. The Tribunal recorded the view of Miss Cameron who held that there was no breach in the suspension of the Claimant.[18]As to causation, the unanimous Employment Tribunal decided, surprisingly, the following, and since it has been the subject of considerable examination by the advocates, we will cite it in full:
"56 The next question is whether the fundamental breach of contract we have identified directly led the Claimant to resign. We are in no doubt that she told her representative that she was resigning because of her Husband's health. Although other parts of her evidence are credible and accurate, in respect of the resignation we have found the Claimant's evidence to be unreliable. However, the issue for us is not what she said at the time, but whether she resigned because of personal or health circumstances which are unrelated to the breach. It is notable that neither she nor her Husband were questioned as to the actual or perceived state of his health at the time. The Respondent's stance is that, because this was given as the reason for resignation, it must have been: see paragraphs 25 and 26 of written submission. Other grounds for resignation are also suggested. 57 Our unanimous conclusion on this issue is that the Claimant has established that the reason for hr resignation was the suspension. Regardless of what she asserted at the time, a troubled time for her, we find no good evidence that there was any other reason to resign. She was greatly aggrieved at the decision to suspend and the failure to lift the suspension was the principal reason why she resigned."
In those circumstances, a remedy hearing was set up. It has not yet taken place, we think. The Respondent's case[19]The Respondent submitted that the Tribunal had erred in law in its approach to suspension. Relying upon the judgment of the Court of Appeal in Gogay v Hertfordshire County Council [2000] IRLR 703, a mere suspension in these circumstances absent the pejorative allegation attached in Gogay would not give rise to a breach of contract. It was further contended that this was simply a neutral act of taking a person from a senior position and putting her on suspension while the matter was investigated. The finding of the Tribunal that Mr Evans regarded the matter as serious must be supported. As to representation, it was conceded that whatever the policy was, it appears to have been a contractual term to allow representation, and, albeit not a fundamental term, breach of it could contribute to a fundamental breach.[20]It was contended that the Tribunal had in the passage relating to unreasonable exercise of the power to suspend, committed the grave legal error of adopting a reasonableness test, rather than a contract test contrary to the judgment in Western Excavation v Sharpe [1978] IRLR 27 CA.[21]As to causation, the burden of proving this is upon the Claimant. It was accepted that the Claimant does not have to say in terms that there is a breach or to identify it. All the circumstances available at the time should be weighed in the round. The Tribunal's conclusion was contrary to its finding that the Claimant was an unreliable witness, as was her husband, on this subject, and all of the oral and written contemporaneous evidence pointed towards this being a retirement and not a dismissal, constructive or otherwise.[22]In reply to Mr Primost's six grounds as to the reasons for the Claimant resigning, it was contended that there was no finding in this case that the simple allegation of patient abuse was sufficient to constitute a breach of contract. The Tribunal had found against the Claimant's argument in relation to merely carrying out her contractual duties in respect of bathing and no smoking. The Respondent's answer in respect of independent investigation was not a matter which was raised by the Claimant at the time and therefore could not form part of the reasoning.[23]As to the failure to lift the suspension, there was no finding that that itself was part of a series of matters constituting, in aggregate, a fundamental breach of contract.[24]It was accepted that the Claimant had been told she could not go on the course. This was not a knee-jerk reaction as identified by Hale LJ in Gogay , but was a considered response to a serious situation by Mr Evans. The Claimant's case[25]. On behalf of the Claimant, it is contended that breach of the implied term relating to the maintenance of trust and confidence between the employer and the employee is a breach of a fundamental term; there was a breach here in six respects causing the Claimant to see as a last straw denial of access to the course and so to terminate the relationship. Decisions on these matters are questions of fact. The allegations in this case were comparable to those made in Gogay , for the Claimant was in a care position of vulnerable patients; she had long service and the allegation of institutional abuse of patients was akin to that of sexual abuse; it was hurtful and demeaning for a carer of such long-standing.[26]As to causation, this again is a matter of pure fact and the findings by the Tribunal, whilst slim, were deeply rooted in the findings of fact earlier in the judgment. The central question is: what influenced the Claimant to do as she did? That was the suspension, and notice that it was to continue. The legal principles.[27]The legal principles to be applied in this case emerge from the following authorities. In Western Excavating above, it was held that the test for constructive dismissal, as there termed by Lord Denning, MR, is one of contract, and an employee seeking to rely on a repudiatory act of an employer, must do so quickly and in response to a fundamental breach.[28]In Woods v W.M. Car Services [1981] ICR 666, EAT Browne-Wilkinson J (President), and Members, dealt with a form of constructive dismissal known then as "squeezing out", and was minded to overturn an Employment Tribunal which had decided that there was, in the circumstances, a fundamental breach. However, as is made plain, the EAT turned back from that course regarding itself as bound by the findings of the Tribunal on this matter and would not disturb them. Woods was appealed to the Court of Appeal, where Lord Denning saw no difficulty in applying the construction of the EAT to his own judgment in Western Excavating for, by that time, Pedersen v London Borough of Camden 1981 ICR 674 Court of Appeal, had been decided. Thus the issue to be determined for fundamental breach is one of determining the facts, and it is to be left to the fact-finding body, in this case an Employment Tribunal. The determination as to its seriousness for the purposes of being a fundamental repudiatory breach is also one for the Tribunal.[29]In Weathersfield v Sargent 1999 ICR 425 , the Court of Appeal returned to this point, this time in the judgment of Pill LJ, who analysed the judgment of Judge Butter QC, and Members, and came firmly to the conclusion which is adopted as follows: I reject as a proposition of law the notion that there can be no acceptance of a repudiation unless the employee tells the employer, at the time, that he is leaving because of the employer's repudiatory conduct. Each case will turn on its own facts and, where no reason is communicated to the employer at the time, the fact-finding tribunal may more readily conclude that the repudiatory conduct was not the reason for the employee leaving. In each case it will, however, be for the fact-finding tribunal, considering all the evidence, to decide whether there has been an acceptance. In Norwest Holst Group Administration Ltd v. Harrison [1985] I.C.R. 668 Neill L.J. was doing no more than concluding on the facts of that case that there was no unconditional acceptance of the repudiation before the repudiation was withdrawn and no longer remained open for acceptance by the employee. There is no mention in the analysis of the law of repudiation in the employment field by Buckley L.J. in Gunton v. Richmond-upon-Thames London Borough Council [1980] I.C.R 755. Acceptance of a repudiation of a contract of employment will usually take the form of the employee leaving and saying why he is leaving but it is not necessary in law for the reason to be given at the time of leaving. The fact-finding tribunal is entitled to reach its own conclusion based on the "acts and conduct of the party," as to the true reason. If the appeal tribunal in Holland v. Glendale Industries Ltd [1998] I.C.R. 493 were stating as a proposition of law that there can be no constructive dismissal-unless the employer is told the true reason for leaving they were in my respectful view in error.[30]A similar approach was taken in Nottinghamshire County Council v Meikle [2004] IRLR 703 CA.[31]In respect of the duty to maintain trust and confidence between the parties, the most recent comprehensive expression of the principles is that given on reflection of all the authorities by Newman J in Horkulak v Cantor [2004] ICR 697, which includes the following passage: 27 The leading authority on the implied term of trust and confidence is now the decision of the House of Lords in Mahmud v Bank of Credit and Commerce International S.4 [1997] ICR 606 . See the speech of Lord Steyn, at pp 620-621:
"The applicants do not rely on a term implied in fact. They do not therefore rely on an individualised term to be implied from the particular provisions of their employment contracts considered against their specific contextual setting. Instead they rely on a standardised term implied by law, that is on a term which is said to be an incident of all contracts of employment: Scally v Southern Health and Social Services Board [1992] 1 AC 294, 307B. Such implied terms operate as default rules."
Lord Steyn adopted at p 621, the definition of this term set out in Woods vWM Car Services (Peterborough) Ltd [1981] ICR 666, 670 and approved by the Court of Appeal in Lewis v Motorworld Garages Ltd [1986] ICR 157 and also by Sir Nicolas Browne—Wilkinson 7-C in Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] 1CR 524, that an employer shall not "without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee". Lord Steyn further set out in Mahmud [1997] ICR 606 , 621-622:
"The major importance of the implied duty of trust and confidence lies in its impact on the obligations of the employer And the implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between an employer's interest in managing his business as he sees fit and the employee's interest in not being unfairly and improperly exploited. The evolution of the implied term of trust and confidence is a fact. It has not yet been endorsed by your Lordships' House. It has proved a workable principle in practice. It has not been the subject of adverse criticism in any decided cases and it has been welcomed in academic writings. I regard the emergence of the implied obligation of mutual trust and confidence as a sound development." 28. Lord Nicholls of Birkenhead, at p 610, described the implied obligations as: "no more than one particular aspect of the portmanteau, general obligation not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages… The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer." 29) The term was further considered by the House of Lords in .Johnson v Unisys Ltd [2001] ICR 480 in the context of the termination of an employment relationship. In the Johnson case Lord Hoffmann also had regard to the evolution of the implied term of trust and confidence. He stated, at p 495: "35….At common law the contract of employment was regarded by the courts as a contract like any other… But over the last 30 years or so, the nature of the contract of employment has been transformed. It has been recognised that a person's employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. The law has changed to recognise this social reality. Most of the changes have been made by Parliament. The Employment Rights Act 1996 consolidates numerous statutes which have conferred rights upon employees. European Community law has made a substantial contribution. And the common law has adapted itself to the new attitudes, proceeding sometimes by analogy with statutory rights. '36 The contribution of the common law to the employment revolution has been by the evolution of implied terms in the contract of employment. The most far reaching is the implied term of trust and confidence." 30 The test as to whether there has been a breach of the implied term of trust and confidence is an objective one. As Lord Steyn put in Mahmud [1997] ICR 606 623: "
The motives of the employer cannot be determinative, or even relevant, in judging the employees' claims for damages for breach of the implied obligation. If conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise." 31 Furthermore, an employer can breach the implied term of trust and confidence by one act alone or by a series of acts which cumulatively amount to a repudiatory breach of contract, even if the last event in that series is not actually a breach of contract at all: see Lewis v Motorworld Garages Ltd [1986] ICR 157, 169, in which Glidewell LJ stated:
"The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is does the cumulative series of acts taken together amount to a breach of the implied term'? (see Woods vWM Car Services(Peterborough) Ltd [1981] ICR 666). This is the 'last straw' doctrine."
[32]As those principles are applied to a suspension, the Court of Appeal, in Gogay above, established clear rules that a suspension is only lawful if it is made for just cause. Hale LJ said the following:
"52…[I]t does not follow that a staff member should be suspended simply because inquiries, whether or not characterised as a s.47 investigation, are being made. There is always a separate decision to be taken about the implications for staff. It is not alleged that the decision was in breach of the express terms of the claimant's contract of employment. It remains to be considered, however, whether the authority's actions in this case were in breach of the implied term of confidence and trust. The implied term of confidence and trust 53 It is now well settled that there is a mutual obligation implied in every contract of employment, not, without reasonable and proper cause, to conduct oneself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. This requires an employer, in the words of Lord Nicholls of Birkenhead in Malik v BCCI [1997] IRLR 462 , at p464, 13 and 14, "…not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages…The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.' Lord Steyn emphasised, at p.471, 70, that the obligation applies 'only where there is "no reasonable and proper cause" for the employer's conduct, and then only if the conduct is calculated to destroy or seriously damage the relationship…" 55 Did the authority's conduct in this case amount to a breach of this implied term? The test is a severe one. The conduct must be such as to destroy or seriously damage the relationship. The conduct in this case was not only to suspend the claimant, but to do so by means of a letter which stated that 'the issue to be investigated is an allegation of sexual abuse made by a young person in our care.' Sexual abuse is a very serious matter, doing untold damage to those who suffer it. To be accused of it is also a serious matter. To be told by one's employer that one has been so accused is clearly calculated seriously to damage the relationship between employer and employee. The question is therefore whether there was reasonable and proper cause' to do this. 56 In my judgment, there clearly was not. The information considered by David Gibson and strategy meeting was indeed difficult to evaluate'. The difficulty was in determining what, if anything, EL was trying to convey. It warranted further investigation. But to describe it as an 'allegation of sexual abuse' is putting it far too high. A close reading of the records coupled with further inquiries of the therapist were needed before it could be characterised as such. 59 On analysis, therefore, the actions of the local authority towards the claimant in this case were indeed in breach of its implied obligation not without reasonable and proper cause to act in a way which seriously damaged the relationship of confidence and trust between them. But in reaching this conclusion, I would not want local authorities to feel in any way inhibited in making the inquiries which they feel appropriate to safeguard the children in their care. Nor should there be any doubt that if there is a conflict between the interests of a child in their care and the interests of an employee, the interests of the child should prevail. But the employee is entitled to something better than the 'knee-jerk' reaction which occurred in this case."
Peter Gibson and May LJJ agreed with that approach. That itself was followed and applied with additional wisdom by Silber J and Members in Milne v The Link Asset and Security Company Limited (UKEAT/0867/04) where, having analysed Gogay , the EAT said this: 28. In our view, the suspension of an employee does not automatically mean that the employer has acted in breach of the implied duty of trust and confidence and no authority as been cited to us which says otherwise. Indeed the judgment of Hale U, which we have just quoted, indicates and implies that suspension by itself does not constitute a breach of the implied duty of trust and confidence. In order to determine if a suspension constitutes a breach of the implied duty of trust and confidence it is, however, necessary to consider the surrounding circumstances in which the suspension was imposed, which include what was said to the employee about the circumstances justifying the suspension, the length of the suspension, whether the employee has lost any income because of the suspension, whether the employee has been replaced and whether the terms of the contract of employment require the employer to provide work for the employee (see William Hill Organisation Limited v Tucker [1998] IRLR 313) [we think the ellipsis was a typographical mistake]"[33]In addition to that, borrowing from criminal law, it is quite clear that a witness can give evidence in open court different from her first statement made, for example, to the police or to an employer, and be believed as to the evidence she gave at the hearing. Conclusions[34]We prefer the arguments of the Claimant and have decided that the appeal should be dismissed. Breach of contract[35]We accept there must be a breach. The breach here was suspension without representation. It was, as the Tribunal categorised it, a serious breach of contract. With the assistance of Miss Newton's acceptance of the contractual force of these provisions, very sensibly made, and corresponding precisely to the experience of all three members of this EAT, a failure to accord a right to be represented is capable of being a serious breach, and it was so held in this case. Further, the breach was in continuing the suspension after one of the allegations had been disposed of, and in the light of the material before Mr Evans. Thus, there was a breach.[36]We acquit the Tribunal of an error of law as alleged by Miss Newton in its paragraph 50, which we cited above. This is not to introduce a test of reasonableness into the right to suspend, for, as the Tribunal says in terms, the issue was whether there was an unjustifiable decision and whether or not there was just cause. In our judgment, the Tribunal here has followed Gogay and indicated that there was no just cause for the suspension of the Claimant at that time, and its finding as to that is one which not only it is entitled to make, but is one which, in our view, the majority was correct to make.[37]The subsidiary points made by Mr Primost must be considered only as peripheral. For what it is worth, we would uphold Mr Primost's first contention that the involvement of Mr Evans was a breach of the relevant provisions. However, that point was not made at the time. It was not a reason for which the Claimant resigned and cannot therefore be advanced now. As we say, we would uphold the Respondent's Answer on the point, but it takes the case no further.[38]As to the other two points found against the Claimant, we would reject the Respondent's Answer in respect of the performance of contractual obligations point, it having been correctly analysed by the Employment Tribunal.[39]In our judgment, Gogay directly applies to this case for the reasons we have given, and the Tribunal was correct to apply it.[40]We hold that the approach of the EAT in Milne is also instructive. Considering all of the circumstances in which the suspension was imposed, including what was said to the employee justifying the suspension, the length of the suspension and loss of pay, and whether there had been replacement, the lack of an emergency corresponding to the provision in the disciplinary framework and the nature of the allegation itself consisting in two parts, only one of which was pursued, the Employment Tribunal's conclusion was correct.. Causation[41]We then turn to the second point, causation. It will be recalled that on this, the Employment Tribunal spoke with one voice. We accept it. It was accepted also by Miss Newton. We hold that since all of the circumstances are to be considered, there can quite properly be consideration of evidence after the relevant event. In this case, Mr Primost argues without objection that after the date of the investigatory meeting, the Claimant went to work as a support worker at a care home for substantially less pay, working much longer hours, and so on. As he put it, if she had intended to be with her husband during his terminal illness, and to retire for that reason, she would not have undertaken this employment. That apparently was the evidence before the Employment Tribunal.[42]More important, however, is the connection between the events on 31 October, the investigatory meeting, and the factual analysis of the reason for the termination. In this respect we have to say that both sides have a strong point. It is true that in paragraph 57, which we have extracted above, there is not an amplitude of reasoning. However, it must be borne in mind that these are conclusions from the findings of fact which the Tribunal has set out without criticism. In paragraph 57 there are two specific reasons. The Tribunal holds that the Claimant was greatly aggrieved at the decision to suspend her and not lift the suspension. That constitutes a finding of fact by the Employment Tribunal, and it is well borne out by the evidence. It also deals with both the suspension itself and the continuation of it.[43]The second matter relates to timing. The chronology is important; it is also a matter of fact. The decision to utter the letter of resignation was made only after the Claimant was told that the decision to suspend her would continue and that she could not go on the course. This was the trigger. Thus, within that short paragraph 57, two important matters of fact are relied on by the Employment Tribunal, whose sole jurisdiction it is to determine these matters. As Pill LJ has said, "Once there is evidence of factual matters, then a decision by the Employment Tribunal cannot be overturned". It cannot be perverse for it to find as it did, based upon those two matters, that the Claimant's otherwise unreliable account should not be accepted. At first sight, it troubled us, and at first sight there was considerable force in Miss Newton's point, that the Tribunal had evidence before it going all one way, at least at the time relevant to these proceedings which was 31 October 2005. The Claimant had tried to distance herself from the oral and written evidence that she was intending to retire. Nevertheless, it may be trite to say it, but the Tribunal had four days of evidence before it in order to weigh up what the correct position was. It was at all times looking to see what the real reason and principal reason for the resignation was, and it was entitled to come to the conclusion which it did in paragraph 57.[44]It may be a surprising conclusion in light of the contemporaneous material, but it is not one which we can say is perverse, as we have indicated in our consideration of the legal principles. The Tribunal plainly had in the forefront of its mind the contemporaneous oral and written statements from the Claimant and her husband; it rejected them.[45]What we said earlier about Miss Newton having force in her arguments is this: that the critical issue in this case was to determine what caused the separation of the Claimant from the Respondent. The vehicle for it was the letter of resignation indicating the Claimant wished to take retirement. The correct juxtaposition in this case is not between a resignation or a retirement on the one hand, and dismissal on the other, but to answer the question, "What caused the severance?" and in this case, by reference to the two findings by the Employment Tribunal as to the Claimant being greatly aggrieved and the timing of her decision, it is plain that the answer is the suspension and the failure to lift it. That is a strong basis for the Tribunal's finding which we uphold, that the principal reason why the Claimant resigned was those two matters.[46]In those circumstances, therefore, the Tribunal's conclusion was correct. We will uphold the judgment of the Tribunal, dismiss the appeal, and give any further directions for onward transport in this case.