MR G N GEARY v AMEC LOGISTICS & SUPPORT SERVICES LTD [2007] UKEAT 0232_07_0111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0232_07_0111Case No Appeal No. UKEAT/0232/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G N GEARYAPPELLANTAMEC LOGISTICS & SUPPORT SERVICES LTDRESPONDENT
Before
His Honour Judge SerotaDate 1 November 2007
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent MR ROBERT MORETTO (of Counsel) Instructed by: Messrs Dickinson Dees Solicitors St Ann's Wharf 112 Quayside Newcastle upon Tyne NE99 1SB SUMMARY Time Limits: Reasonable practicability Contract of Employment: Mutual trust and confidence Employment Tribunal decided that various claims for detriment by reason of alleged public interest disclosures, health and safety activities and trade union activities were brought out of time and that the Claimant had not shown that it was not reasonably practicable for them to have been brought within time. These findings were upheld. Respondent's cross appeal dismissed. The Employment Tribunal was entitled on the facts that it found to conclude that there had been a breach of the implied term of trust and confidence that entitled the Claimant to claim constructive dismissal. HIS HONOUR JUDGE SEROTA QC Introduction We have before us today an appeal and cross-appeal relating to the decision of the Employment Tribunal at Birmingham dated 9 August 2006. The Chairman was Ms Joanna Heal and the decision was given after an 8-day hearing. The Employment Tribunal dismissed a number of the Claimant's claims. Firstly, that he had suffered a detriment by reason of trade union activities contrary to s146 of the Trade Union and Labour Relation Act (1974 ). Secondly, that he had suffered a detriment by reason of health and safety activities contrary to s44 of the Employment Rights Act 1996 and, thirdly, that he had suffered a detriment by reason of making a protected disclosure under s47(b) of the Employment Rights Act 1996 . The Employment Tribunal upheld his claim for unfair dismissal in relation to which there is a cross-appeal. HHJ Clark stayed the appeal on 5 October 2006 pending the result of the review application to the Employment Tribunal, which was unsuccessful. HHJ Clark then ruled that the matter should not proceed under rule 3 on 1 December 2006; and on an application to me under rule 3(10) on 2 May 2007, when Mr Geary had the benefit of being represented by Mr Auburn of Counsel instructed under the ELAAS Scheme, I considered that the matter warranted going to a full hearing.[2]We should note before we go further into this appeal that the Claimant suffers from mental health issues. He has sought an amendment to allege that the Chairman extended his time for making certain applications which in the decision are treated as having been time barred. He also has not attended but wrote to the Employment Appeal Tribunal asking that the matter should go ahead in his absence.[3]The Respondent has disputed that any extension of time was granted or indeed that there was any evidence as to the Claimant's medical condition. On 18 October of this year, the Registrar refused permission to amend so we are not concerned with that ground of appeal.[4]It is necessary to say something about the background to this matter. The Claimant is a member of the Amicus trade union. On 24 November 1997 he joined the Respondent, which is a contracting company, at its plant at Swynnerton as an electrician. He became a fire warden in 2000. He suffered an accident at work in October of that year. From the year 2000 it was traditional for there to be some form of Christmas party or Christmas lunch. These matters were treated fairly light-heartedly, but the Claimant for Christmas 2000 received a certificate describing him as "The Biggest Stirrer of 2001". The following year the certificate referred to "Sick note of the Year" and "Nick, 'Never Happy' Geary". On 21 March 2002 Amicus approached the Respondent seeking union recollection. The Claimant maintained that by reason of this approach and of his profile as a member of Amicus his overtime was stopped. Towards the end of March 2002 the Claimant raised an issue with the Respondent that the work force should be paid Joint Industry Board (JIB) rates. He maintained that as a result of raising this matter he was not sent out of the depot to work on various construction sites in the summer and August of 2002. The Respondent's case always has been that the reason that he was not called on to work outside the site was completely unconnected with his union activities. In the Christmas party of that year his certificate described him as being "Officially the biggest Whinger". He resigned as a fire warden in early 2003 and claims that there had been some form of retaliation against him. In March he was to receive a health and safety award but he refused to accept it on the basis that Mr Harper, whom we believe to have been his foreman, had verbally abused him and lost his temper. Between 11 April and December 2003 the Claimant maintains he was not given any overtime to work because of an approach by Amicus for recognition. The Respondent say that was not the reason and he did not get to do overtime because another electrician had been employed and it was not necessary for him to do overtime. His case in this regard was rejected by the Employment Tribunal.[5]The Claimant maintained that he had been subjected to a degree of bullying and harassment as well as the treatment to which we have referred by reason of his health and safety or trade union activities, but the evidence before the Employment Tribunal from the Claimant was that the last incident of which he complains was in December 2003, and he had assumed thereafter that, as he put it, things had got back to normal.[6]On 10 March 2004 the Claimant wrote to a director, Mr Parkin, and the General Manager about certain health and safety issues. The Claimant complains that his identity was disclosed to Mr Winfield, the Operational Director, and that that amounted to a breach of confidence.[7]The Respondent denied that his name had been disclosed. The Employment Tribunal found that Mr Winfield had received a copy of an investigation report which did not identity the Claimant but Mr Winfield was subsequently able to work out for himself that the person raising the complaint must have been the Claimant.[8]In June 2004 and in July 2004 the Claimant had a number of telephone conversations with Mr McAulay, the Human Resources Manager. According to the Employment Tribunal Mr McAulay was told that the Claimant had information "to blow his socks off" but he would not tell Mr McAulay what it was over the telephone and that information was never disclosed.[9]By July 2004 the Claimant says he realised that things had not returned to normal so in early August he issued a grievance. During the course of the grievance process he claimed that he had been harassed by Mr Harper and others; and he alleged that the Respondent failed to protect him by not moving him to another department. We know that a grievance was taken out on 18 August. The Employment Tribunal also refers to a grievance on 14 August 2004 and it may be that that date is not correct.[10]The Respondent investigated the Claimant's grievance. On 29 September 2004 the Claimant had a meeting with Mr McAulay and with the Operations Director, Mr McCrimmon, when he complained of the following: He had been bullied and verbally abused by Mr Harper. He had raised an issue about certificates, site work and JIB rates and as a result was given menial duties. He referred to his work accident of 2002 and the difficulty he had in reporting it. He complained that he had been prevented from doing overtime. He complained that he had been indirectly threatened with violence by Mr Harper. He had decided not to pursue the grievance procedure further because there had been no incidents since December 2003 Only in July 2004 did he realise things had not returned to normal so he issued the grievance.[11]Mr Virgo, who is a retired police officer and also involved in security with the Respondent's parent company, together with Mr Gray, who is the Training Manager, began to carry out an investigation. In December 2004 the Claimant says that during the course of an incident Mr Harper had said that he was ready to twat the Claimant ("twat" being interpreted by the Employment Tribunal as some kind of physical assault) and that evidence was in fact accepted by the Employment Tribunal that this was because Mr Harper had been irritated by the grievance rather than as a result of any health and safety activities. Mr Virgo and Mr Gray carried out their investigations. The Claimant claims that he told Mr Virgo of Mr Harper's threat but the Employment Tribunal rejected that evidence.[12]On 22 November 2004 the Claimant went on leave by reason of stress and in fact he never returned to work prior to his resignation in February 2005. In a letter of 14 December 2004 the Claimant complained in a letter to Mr McAulay that his absence was due to further intimidation by Mr Harper, who had glared at him and appeared to be laughing at him and had made indirect physical threats behind his back.[13]It was on 14 December 2004 that Messrs Virgo and Gray completed their report. The report, as the Employment Tribunal found, was detailed. It took some time and considerable resources - some 40 people were interviewed. It is right to say, as we shall come on to shortly, that the report did uncover significant evidence of bullying or harassment. We say 'evidence of', and that is not of course the same as saying that Mr Virgo and Mr Gray found that the evidence was correct.[14]On 12 January 2005 the Claimant met Mr McAulay to be told the result of the investigation. He was told there was no evidence of harassment or bullying. He was not shown the report but the report, as we have mentioned, did contain evidence of bullying by Mr Harper. On 13 January a letter was sent to the Claimant dealing with his grievance by Mr McAulay and at that point in time the Claimant had not been shown the report. The letter confirmed what had been said in the meeting and under bullying and harassment , it said: "there is no evidence that would constitute bullying and harassment".[15]It was on the following day, that the Claimant, according to the Employment Tribunal, received a copy of the investigatory report. The Employment Tribunal had this to say at paragraph 35:
"Mr Geary received the report itself on or about 13th January 2005. Despite what was said at (a) above, there was evidence of bullying and harassment in that (i) There was the undisputed evidence of the Christmas certificates; (ii) Wayne Bamford and Alan Steele both described Mr Harper to the investigation as a bully; (iii) Wayne Bamford and Alan Steele both described harassment by Mr Harper of Mr Geary to the investigation. Mr Bamford told the investigation that he heard Mr Harper abuse Mr Geary on a daily basis as a "stupid fat prick"; and Mr Steele gave an example of Mr Harper discrediting Mr Geary over the Friday afternoon tea break."
[16]Mr Geary, say the Employment Tribunal, felt devastated:
"He thought that the authors of the report had ignored evidence in his favour. We think that he was right. His trust and confidence in his employer was seriously undermined. As a result he resigned. He wrote a letter dated 17th January 2005 in which he said he was resigning because no measures had been put in place to protect him by preventing harassment after his initial complaint. He did not say in terms that he resigned because of the report or its contents. Given the chronology, however, we think it is demonstrably the case that he resigned in response to the report and its findings."
[17]We have a copy of that report in our papers. That report appears to be a comprehensive report and it deals specifically with the allegations raised by Mr Geary. As Mr Shrigley pointed out during the course of submissions, findings in relation to all of the allegations were made except in relation to the allegation of bullying. Now it is right to say that so far as that is concerned the investigation set out the complaints and the evidence that it had taken. It referred in particular to the presentation of the three abusive certificates. It refers to Mr Geary's complaints and it refers to other matters which we have already referred to. The report, however, surprisingly makes no findings at all beyond setting out the evidence that had been collected, but evidence there undoubtedly was of bullying or harassment. Whether that evidence was accepted is, of course, another matter.[18]The Claimant in a recent letter to the Employment Appeal Tribunal claims that he suffered a breakdown in his mental health shortly after 13 January. On 17 January 2005 he gave notice of his resignation effective from 1 February; and he has treated that as amounting to constructive dismissal. He launched a grievance in relation to certain protected acts and an appeal. The appeal was dismissed. The hearing in the Employment Tribunal commenced on 19 December 2005. The hearing took place over several days in December and then resumed in May 2005. We do not know when it was during the course of the hearing that Mr Geary gave evidence but he says in a letter to the Employment Tribunal that he was sedated at a time when he was being cross-examined. We understand from Mr Moretto, who appears on behalf of the Respondent, that his evidence was given in December so the time when Mr Geary was cross-examined at a time when he claims to have been sedated would have been in December 2005.[19]The Employment Tribunal had to consider a number of complaints as we have mentioned by Mr Geary that he had suffered a detriment by reason either of his trade union activities, raising health and safety issues or making public interest disclosures.[20]In relation to the question of his trade union activities, the Employment Tribunal was satisfied that he had raised an issue on 29 March in relation to payment of JIB rates. His case was that as a consequence he was not sent out to work on various sites. The Employment Tribunal, however, rejected this allegation on the facts, see paragraph 15 of its decision, saying that he was not sent out on site because he was needed to work in a depot or alternatively the sites were dealt with by other contractors. On 21 March 2002 there was an approach by Amicus for recognition. The Employment Tribunal was not satisfied with the Claimant's claim that as a result of this approach he was stopped from doing overtime. The Employment Tribunal, again at paragraph 15, was satisfied that a new electrician had been hired and there was therefore no need for overtime; and it was not satisfied on the facts that work was duplicated and that the new electrician had been taken on to deprive the Claimant of his overtime.[21]The Employment Tribunal rejected a claim by the Claimant that he had been in effect isolated.[22]So far as the health and safety issue was concerned, the Claimant maintained that he acted as a fire warden in 2000 and 2003 when he declined to act further, and claimed that he was the victim of retaliation, being required to sweep up and do menial tasks. The Employment Tribunal rejected that.[23]The Employment Tribunal noted that Mr Harper had presented the certificates at the Christmas dinner, which were insensitive and designed to give offence and had been given in a spirit of dislike (see paragraph 21)[24]On 10 March 2004 the Claimant had written a letter to Mr Parkin raising health and safety matters. He complained that Mr Winfield had been told about this in breach of confidence. Again, this is a matter, which at paragraph 22 of its decision the Employment Tribunal rejected. Mr Winfield had worked out for himself who the author was in October 2004 and Mr McAulay, the Human Relations Manager, was not aware of this until August 24 (see paragraph 23 of the decision).[25]The allegation that the Claimant was subjected to ongoing abuse by Mr Harper as a result of the letter was rejected on the basis that Mr Harper did not know of the letter to Mr Parkin.[26]Similarly the Employment Tribunal, at paragraph 25, was satisfied that the Claimant had not been excluded from certain departmental meetings as a result of his having sent the letter to Mr Parkin.[27]So far as the public interest disclosure issue was concerned, the Claimant alleged that he should have been moved from Mr Harper's department. The Employment Tribunal at paragraph 28 found that Mr Harper was in fact moved and the Claimant then went on sick leave, so that no detriment flowing from any disclosure was made out.[28]So far as unfair dismissal was concerned, the Employment Tribunal, at paragraphs 34 to 46, found there was evidence of bullying and the fact that, the way the Employment Tribunal put it, the report said there was no evidence of bullying was sufficient to destroy the trust and confidence that the Claimant had in his employer. We will come back to this matter.[29]The Employment Tribunal directed itself as to the law. In relation to trade union activities the Employment Tribunal at paragraph 43 directed itself that the claim was presented on 19 April 2005 so prima facie only those matters that had occurred since 20 January 2005 were in time unless those others matters formed part of a series of acts - that is an act extending over a period - or if time for bringing the claims was extended.[30]The Employment Tribunal was satisfied the detriment could not have continued after December 2003 and it concluded that all complaints were out of time. The Claimant when he was asked why he had not brought his claims earlier (see paragraph 45) did not give the reason that he has sought to give now, for example in relation to not appreciating until very late in the day that there had been a breach of confidence by the disclosure of his name, what he said was he did not put in a claim earlier because he did not raise the complaint "as simple as that". That was the answer that he gave at the time. The Employment Tribunal was satisfied it could not be said it was not reasonably practicable for him to bring the claim at an earlier stage, and they noted that all times he had access to support from his trade union.[31]The Employment Tribunal then went on to consider the health and safety aspects of the claim (see paragraph 47) and the Employment Tribunal came to the same conclusion that it had in relation to trade union activities.[32]So far as the alleged protective disclosures were concerned, the Employment Tribunal was satisfied that no complaint could have arisen after 17 November 2004 (see paragraph 49).[33]The allegations of the detriment were out of time and the matter was similar to the issues raised by the delay in bringing his health and safety and trade union activities claims. Further the grievance did not refer to any public interest disclosure so time could not be extended. The grievance was dated 14 April 2004 which was over three months from the last act complained of.[34]The Employment Tribunal then went on to consider questions of unfair dismissal. The Employment Tribunal had this to say:
"54. This claim is in time. The claim form was received by the tribunal on 10th April 2005. Mr Geary resigned by letter dated 13th January 2005 which was received by the respondent on 18th January 2005. Mr Geary gave two weeks' notice which would have expired on 1st February 2005. 55. We consider that the respondent was in fundamental breach of contract. Mr Geary had made very serious allegations that he had been bullied and harassed by Mr Harper. He had made those allegations sincerely and trusted that his employer would investigate them fairly. Although the respondent commendably poured much time and effort into the investigation the final report concluded that there was no evidence of bullying and harassment: although in fact there had been such evidence. 56. Mr Moretto submits that in fact what the respondent did was to prefer the preponderance of the evidence. This is not however what the report says: it says that there was no evidence of bullying. We consider that it must seriously undermine the relationship of trust and confidence when - in a matter so emotive, stressful and important to the employee as an allegation of bullying - the employer asserts that there is no evidence to support the allegation when there is. 57. There was no reasonable or proper cause for the respondent to deny the existence of such evidence and accordingly the respondent is in breach of the implied term of trust and confidence. 58. Mr Geary resigned in response to that breach and we consider that the chronology leading to his resignation makes this clear. There was no delay and he has not waived the breach. He has therefore been constructively dismissed."
[35]When the matter came before me on the hearing under rule 3(10, I gave permission for an amended Notice of Appeal to be served. As I have said, on that occasion the Claimant was represented by Mr Auburn of Counsel, who settled the amended Notice of Appeal. It raised three points. Firstly, that the Employment Tribunal failed to consider whether the various acts of detriment and ill-treatment were part of a continuing campaign of detriment such as would constitute acts extending over a period. Secondly, the Employment Tribunal should have found that the time limit had been extended by virtue of the Employment Act 2002 Dispute Resolution Regulations. And, thirdly, the Employment Tribunal should have granted an extension of time as it was not reasonably practical for the Claimant to have brought his claims earlier. It was only in March 2005 that he claims to have discovered who was responsible for his detriments. He maintains that this was ignored by the Employment Tribunal.[36]We have received a letter dated 12 October 2007 in which the Claimant has also sought to raise the issue that his time had been extended. That is a matter which, as we have already said, has been rejected by the Registrar.[37]There is a further letter from the Claimant of the 10 October 2007 in which he says that he does not wish to proceed with certain claims but wishes to proceed with what he says were his protected disclosures on 10 March, 14 August, 29 September, 17 November and failure to investigate complaints of bullying and harassment fairly. The Respondent's Case[38]We start with the suggestion that there was a continuing act. In relation to trade union activities, the Employment Tribunal at paragraph 44 found that the last act was in December 2003.[39]So far as health and safety issues were concerned, the Employment Tribunal, at paragraph 48, finds that there was no effective grievance which would have extended the Claimant's time. It is submitted that the Claimant's claim should have been found to have been barred under s32(2) in any event.[40]So far as the public interest disclosure matter is concerned, at paragraph 49 the Employment Tribunal found that the latest act was 22 November 2004. As the claim form was presented on 19 April 2005 all complaints were more than three months from the last act complained of. Accordingly there was no need to consider if there was a continuing act.[41]In relation to the second ground of appeal, in relation to the grievance and the question as to whether the time might have been extended by the Dispute Resolution Regulations, the Respondent has submitted that the complaint related to matters raised 15 months before the complaint was presented so there was no basis upon which the extended six month period would have enabled the Claimant claims to have been brought in time. Further, the acts of which complaint was made had all taken place prior to October 2004 when the Dispute Resolution Regulations came into effect so they were not applicable at the time.[42]So far as the health and safety issue was concerned, the Respondent submits that no grievance had been raised in relation to health and safety matters. Again, that would have been a reason for the Employment Tribunal to dispose of the matter under s32(2) of the Employment Act 2002.[43]So far as public interest disclosure was concerned, the grievance of 18 August made no reference to any disclosure detriment. The first grievance relating to detriment caused by a disclosure was at 14 April 2004, over three months following the last act complained of on 22 November 2003. That therefore would be ineffective to extend time under Regulation 15 of the Dispute Resolution Regulations.[44]As to whether it was reasonably practicable, the third ground in the amended Notice of Appeal, although the Claimant maintains he only discovered relevant information in March 2005 that was not the explanation that he gave to the Employment Tribunal. We have already referred to the fact that he said he did not raise a complaint "as simply as that". He gave no explanation for the delay. The reason on which the Claimant now sought to rely, even if accepted, would not explain his failure to present a claim in time in respect of his trade union activities nor would it be grounds for an extension of time in respect of detriment on the grounds of health and safety issues. If the Claimant was aware of the facts giving rise to his complaint in March 2005 that would not make it not reasonably practicable to have filed his complaint prior to 12 April 2006.[45]So far as our conclusions on the appeal are concerned, we are satisfied that the submissions made by the Respondent to which we have referred are correct, and that accordingly the decision of the Employment Tribunal that the various claims disposed of as being out of time were properly found to be out of time. The Employment Tribunal is also right and there is no basis for attacking its finding that it could not be said not to have been reasonably practicable for the complaints to have been presented within the initial three months period. That disposes of the appeal.[46]There is, however, a cross-appeal. So far as the cross-appeal is concerned the Respondent essentially makes four points. Before so doing it is right to remind ourselves, and we do remind ourselves, that the Claimant was relying on a breach of the implied duty of trust and confidence. The authorities on a repudiatory breach giving rise to a constructive dismissal are well-known and we have no doubt that the Employment Tribunal had in mind cases such as Western Excavating v Sharp [1978] IRLR 27 . Further, it is submitted that the Employment Tribunal in considering whether there has been a constructive dismissal in the context of a grievance procedure should look at the whole of that grievance procedure. It is not every item of unwanted conduct on the part of a Respondent employer that might be regarded as constituting a repudiatory breach of contract, the matter must be of appropriate gravity. It was submitted by Mr Moretto that the Employment Tribunal here did not look at the grievance process at a whole but has taken one comment, that is "that there was no evidence of bullying" out of context or have given it undue prominence; nor did the Employment Tribunal look at the fact that there was an appeal.[47]Looking at the decision of the Employment Tribunal as a whole we do not accept this criticism, and it is quite clear that what the Employment Tribunal found to have happened was a matter for them to weigh up in the context of the history which we have recounted and of the case as a whole and it seems to us that they were entitled to regard what had taken place - the apparent denial of their being any evidence of bullying or harassment, when there manifestly was - as amounting to a repudiatory breach of contract.[48]It was submitted that the Employment Tribunal had applied too high a burden. That the obligation of the employer was to reasonably and promptly afford a reasonable opportunity to someone bringing a grievance to have that grievance addressed. The Employment Tribunal refer to the procedure at paragraph 30 of its decision and at paragraph 55 it found that the Respondent had:
"commendably poured much time and effort into the investigation"
The report was detailed, and it was submitted that in effect and the most that could be said is that the Claimant had been told, not in the report but in the letter verbally, that there was no evidence of bullying. Also it was right to say that there had been no evidence of bullying for the previous nine months.[49]We do not consider that the Employment Tribunal had applied too high a burden. The facts as found by the Employment Tribunal were capable, in our view, of justifying the conclusion that there had been a repudiatory breach. There was an investigation, evidence was thrown up, no view as to whether that evidence was correct or otherwise was taken; and it is quite clear from the findings of the Employment Tribunal, in particular, in relation to three certificates, that they were regarded as being offensive and they were not intended to be friendly at all,. Yet, despite this evidence having been collected the Claimant was told that there was no evidence and received a letter to that effect. He could only in those circumstances assume in those circumstances that his complaints were not being taken seriously.[50]The third point raised by Mr Moretto was of inconsistency. The report does, as the Employment Tribunal say at one point, set out the evidence that there was as to bullying. Yet the Employment Tribunal then goes on to say in the passage at paragraph 55 of its decision that the final report concluded there was no evidence of bullying and harassment. It seems to us that this paragraph is infelicitously drafted and that the Employment Tribunal was clearly referring to the letter that was sent to the Claimant and also as to what the Claimant was told. The Claimant was told in terms in the letter and at the meeting as found by the Employment Tribunal that there was no evidence whereas there was in fact evidence that had been thrown up. It seems to us that this particular point is a semantic point, looking at the decision as a whole and in the round, because the Claimant was clearly being told that his employers regarded there being no evidence of bullying; and it enabled the Employment Tribunal to conclude so far as the Claimant was concerned that his complaints were not being taken seriously as they should have been.[51]The final point raised by Mr Moretto is that the decision is perverse. He says, that looking at the process as a whole, including the lengthy and detailed investigations, the production of a report generally consistent with the views of the Employment Tribunal save possibly in relation to the threat of indirect violence and bearing in mind that the breach of duty must go to the root of the contract, that no reasonable Tribunal could have concluded as it did. Mr Moretto realistically accepts that the burden of establishing perversity is a very high one, having regard to such cases as Yeboah v Crofton [2001] IRLR 634.[52]We do not consider that the Respondent comes close to discharging that high burden. In the circumstances, therefore, we are not satisfied that the decision in relation to unfair dismissal was in error of the law and therefore the cross-appeal as for the appeal will be dismissed.