OPAL TELECOM LTD v MISS C ROWE [2007] UKEAT 0515_06_1904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0515_06_1904Case No Appeal No. UKEAT/0515/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
OPAL TELECOM LTDAPPELLANTMISS C ROWERESPONDENT
Before
His Honour Judge J BurkeDate 19 April 2007
[1]APPEARANCES For the Appellant MISS S MALIK (Of Counsel) Instructed by: EEF North West Legal Services Mount Pleasant Glazebrook Lane Warrington Cheshire WA3 5BN For the Respondent The Respondent MISS C ROWE (In Person) SUMMARY Constructive dismissal Perversity The employee was found to have been constructively dismissed by the employers on the basis of a series of events including unfair and delayed disciplinary procedures culminating in a last straw. The employers' appeal was put on the basis of perversity; but the findings which the ET reached were all open to them; there was no perversity; appeal dismissed. HIS HONOUR JUDGE BURKE QC The Appeal This is an appeal by the employers, Opal Telecom Ltd ("Opal"), against the judgment of the Employment Tribunal sitting at Bristol, chaired by Mrs Harper and sent to the parties with written reasons on 11 August 2006.[2]Miss Rowe was employed by Opal from November 2002 until she resigned with effect from 9 July 2005. She made three claims before the Tribunal, namely:(1) Victimisation contrary to Section 4(1)(d) of the Sex Discrimination Act 1975.(2) Unfair Constructive Dismissal.(3) Unlawful deduction from wages.[3]The first of these claims failed; Miss Rowe does not seek to appeal against that part of the Tribunal Decision. The third of those claims succeeded; Opal do not seek to appeal against that part of the Decision. This appeal concerns only the Tribunal's conclusion that Miss Rowe had been unfairly constructively dismissed. Miss Sarah Malik of Counsel has appeared before us on behalf of Opal, as she did before the Tribunal. Miss Rowe, who was represented by Counsel before the Tribunal, has not been represented before us; it appears that, although her legal expenses insurance covered the two-week hearing before the Tribunal, she has now run out of cover. We are grateful to Miss Malik and to Miss Rowe for their helpful submissions. The Law[4]Miss Malik has not sought to disguise the fact that this appeal is put entirely on the basis that the Tribunal Decision was perverse. She accepts that the relevant principles of law relating to constructive dismissal are as set out in the judgment of the EAT in Barke v Seetec (EAT/0917/04 Judgment 13 January 2006), at paragraph 26, and that the Tribunal did not make any error of law so far as those principles are concerned; Miss Malik's case is based on perversity; and it is convenient to set out the law which applies to grounds of appeal based on perversity at the outset; for it is not and cannot be in dispute. In Piggott Bros and Co Ltd v Jackson [1991] IRLR 39 the Court of Appeal, restoring the judgment of the Employment Tribunal which had been set aside on perversity grounds by the EAT, referred to and endorsed the well-known dictum of May LJ in Neale v Hereford and Worcester County Council [1986] IRLR 168 that:
"Deciding these cases is the job of industrial tribunals and when they have not erred in law neither the appeal tribunal nor this Court should disturb their decision unless one can say in effect: 'My goodness, that was certainly wrong'."
In Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 the EAT (Mummery J presiding) said this of perversity, at paragraphs 33 – 35:
"33 (2) Whenever an appeal is based on the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence. An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of. the case or the interpretation of the facts. This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is 'irrational', 'offends reason', 'is certainly wrong' or 'is very clearly wrong' or 'must be wrong' or 'is plainly wrong' or 'is not a permissible option or 'is fundamentally wrong' or 'is outrageous' or 'makes absolutely no sense' or 'flies in the face of properly informed logic'. This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals, all within the realm of reasonableness. It is an area in which there may be no 'right answer'. The consequence of this approach, also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to 'meticulous criticism' or 'detailed analysis' or to trawl through it with a 'fine-tooth comb'. What matters is the substance of the Tribunal's decision, looked at 'broadly and fairly' to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion!~\7ièweã in that way, the decision of the Industrial Tribunal is not perverse. 34 (3) We recognise that in this area no one is better placed to make a decision on the facts of a particular case than the Industrial Tribunal. It heard evidence from the witnesses, saw the material which Miss Stewart found to be offensive and considered the detailed arguments on the law and the facts. There is, of course, room for disagreement among different groups of people, such as Tribunals, as to what is or is not less favourable treatment and as to the extent to which women in the workplace are vulnerable to such treatment. 35 A lesson to be learnt from this case is that it is crucial that complaints of the kind made by Miss Stewart are not treated as trivial. They should be taken up, investigated and dealt with in a sympathetic and sensible fashion. In most cases, if not all, it should be possible, by a combination of sensitivity and common sense, so to arrange matters that the reasonable wishes of all those concerned are accommodated. If they cannot be and the result is proceedings of this kind, it is for the Tribunal, as the 'industrial jury', to hear all the evidence and decide the case. This Tribunal only has jurisdiction to determine an appeal against the decision of the Industrial Tribunal if there is an error of law. If the error of law relied upon is the argument that the Industrial Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the facts and law, would have reached, an overwhelming case to that effect must be made out. That case has not been made out here. The appeal will, therefore, be dismissed."
[5]Mummery LJ, as he had become, returned to the subject in the Court of Appeal in the well-known and regularly cited case of Yeboah v Crofton [2002] IRLR 634 where he said, in a passage with which Brooke LJ and Sir Christopher Slade agreed at paragraph 93:
"93 Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care'…"
[6]The principle which we must apply is that set out at paragraph 93 of the judgment in Yeboah:
"A perversity appeal.can only succeed where an overwhelming case of perversity is made out. That test is no different from the test, in different words, propounded in earlier cases over the years."
The Facts[7]The Tribunal set out the facts which they found and the reasons why, where the evidence was conflicting, they found as they did in considerable detail in paragraphs 6 – 35 of their judgment. They did not accept all the evidence on one side or the other; they accepted evidence from different witnesses on different matters as, of course, they were entitled to do. We will set out the facts found in summary form.[8]Miss Rowe was employed as a Corporate Account Manager, selling telephone services to and managing accounts for larger customers of Opal. She was, until November 2004, regarded by Opal as a successful employee. From June 2003 until January 2004 her line manager was Mr McSherry; he raised no issues as to her performance. In February 2004 her line manager became Mr Andreou. In March/April Miss Rowe first raised with Human Resources informal complaints about bullying and harassment on the part of Mr Andreou. Initially the complaints were not of sexual harassment; but by July 2004 that was a component of her complaints; she was distressed when she so reported to Mr Chisnall, Opal's Group Services Director. He regarded her complaints as formal; and a disciplinary investigation was carried out, albeit which one fell well short of compliance with Opal's disciplinary procedures so far as Mr Andreou was concerned. The conclusion was that there was insufficient evidence to uphold the sexual harassment complaint. The Tribunal found as fact, at paragraph 14, that Miss Rowe was satisfied that appropriate action had been taken.[9]Over the following two weeks or so there were various meetings which culminated in an agreement that Miss Rowe would move back to Mr McSherry's team and would be treated, in terms of her performance, as a new starter, with her achievements measured by her activity i.e. the number of phone calls, e-mails, meetings and other steps to building business rather than on orders achieved.[10]In early September Miss Gilham queried with Mr Chisnall an expenses form put in by Miss Rowe and approved by Mr McSherry; the form claimed £14.80 for two hours parking. Mr Chisnall thought that the receipt had been doctored. The Tribunal found that when an inaccurate expenses claim was made (apparently not an infrequent event) Opal's practice was to give a warning in a letter to the employee without going through the disciplinary procedure. This happened in Miss Rowe's case. Miss Rowe was asked for an explanation by Mr McSherry; she provided an innocent explanation for what she said was a mistake – she had not checked the receipt; the Tribunal found that the explanation was accepted by Mr Chisnall; but nevertheless he sent her a letter which said:
"Further to your discussion with your manager Steve McSherry concerning the Paradise Street parking receipt. You accepted that the actual cost was £4.80, not £14.80 as claimed. As you will be aware, the company takes such issues very seriously. I would remind you that falsification of expenses may be treated as gross misconduct. On this occasion your manager accepts mitigating circumstances, therefore please treat this letter as a recorded verbal warning. Should such an incident re-occur, the company reserves the right to treat any further misdemeanour as gross misconduct."
[11]This letter did not offer a right of appeal; but the Tribunal found that Miss Rowe was aware of her right to appeal but did not exercise it. However it is not in dispute that Opal failed, in giving Miss Rowe in writing this formal verbal warning, to comply with their disciplinary procedure. There was no disciplinary meeting; Miss Rowe was not given the opportunity to put her case or to have a colleague present at such a meeting. She had the opportunity to give an explanation only informally to Mr McSherry. We should add that the letter did not inform Miss Rowe that the warning would be removed from her file for only six months although that was what was prescribed by the disciplinary procedure.[12]Shortly after this, in October 2004, after Miss Rowe had been again under Mr McSherry for one month, she had a satisfactory one-to-one monthly review meeting with him. The next monthly review, on 16 November 2004, took a different course. Mr McSherry was disappointed by Miss Rowe's level of activity; the Tribunal found that Miss Rowe understood this and did not dispute that her level of activity had been lower than expected. She explained that she lacked morale and motivation after receipt of the warning to which we have just referred and that she had been unwell; she had had two days off work through sickness shortly before this meeting. Mr McSherry, without going through any form of disciplinary process at all and without seeking advice from Human Resources, decided that Miss Rowe, of whose performance there had been no previous criticism, should receive a first written warning. This was sent to her, signed by Miss Lascelles, the HR Manager, on behalf of Mr McSherry.[13]After that meeting Miss Rowe e-mailed Mr McSherry as to her distress at the original verbal warning and the manner of it and Mr McSherry's response. Mr McSherry replied that he considered that warning to have no bearing on her performance.[14]Miss Rowe appealed against the first written warning on 9 December. She complained about the defects in the procedure, that her activity level which she accepted was low was caused by her being unwell during the relevant period and that, a three-month plan having been agreed with Mr McSherry on 12 October, she had been judged on only one month's performance. The Tribunal summarised that letter in paragraph 23 of their judgment.[15]On 20 December a further monthly review meeting took place. Mr McSherry was still unhappy with the activity level and advised Miss Rowe that a formal disciplinary hearing would take place on 4 January, a date which was deferred until 4 February because the letter advising her of that hearing was delayed and then Miss Rowe was off work sick, effectively from 6 – 31 January. Before that hearing, on 1 February, Miss Rowe submitted a detailed grievance as to the recent events to Opal's Managing Director. At the 4 February hearing Miss Rowe's appeal against the first formal written warning was still outstanding, as Mr McSherry knew. Nevertheless the result of that hearing was a final written warning which, under the disciplinary procedure, would have been inappropriate if the appeal against the first of Mr McSherry's warnings were to be allowed. Miss Rowe appealed against this warning too.[16]On 10 February Ms Lascelles heard the appeal against the first written warning. She concluded that procedures had not been followed and that a first written warning was premature after only one month performance; she varied the warning to a verbal warning. She did not investigate Miss Rowe's allegation that she was being picked out.[17]The next step was the hearing of Miss Rowe's grievance. It was heard by Mr Blumenthal on 3 March 2005; he had never dealt with a grievance before and received no guidance as to how to do so. There was conflicting evidence as to what occurred at that hearing; it is not necessary to go into the details of Tribunal's findings. So far as is relevant for present purposes the Tribunal found that the sexual harassment claim had been appropriately dealt, with, that there were breaches of procedure in relation to the warning given by Mr Chisnall about the expenses, but that warning was upheld and that, although the first written warning was justified, there had been breaches of procedure and it had been downgraded to a verbal warning. In conclusion Mr Blumenthal said:
"I believe the best outcome for Carolyn would be to seek urgent assistance (counselling and/or medical) for her emotional state, accepting that she is clearly troubled and therefore lacking perspective and understanding on the events of the past few months."
The Tribunal found that assessment to be inappropriate and insensitive; that finding of the Tribunal has not been criticised in this appeal.[18]Miss Rowe was off-work for eight working days in February and from 8 March to 12 April 2005. While off-work she appealed against the result of the grievance hearing and sought progress on her appeal against the final written warning - which appeal, we point out, was highly likely to succeed once the first written warning had been varied; for the terms of the disciplinary procedure provided as follows:
"Verbal Warning A Verbal Warning will be issued where minor breaches of company discipline occur or if you are under-performing. A disciplinary meeting will be arranged with Department Manager or Area Manager and if, following that meeting a warning is considered necessary, you will be given a warning and the warning will be recorded in your personal file for a period of six months. Standards will be set and you will be required to make improvements. Any further breach will result in further disciplinary action. First Written Warning Where there is a further or more serious case of misconduct of if you fail to improve and maintain the improvement with regard to conduct or job performance, the matter will be referred to a further disciplinary meeting. If, following that meeting, a warning is considered necessary, a first written warning will be issued specifying the cause of the complaint, restating the standards of performance required, setting out any remedial action that is required. The warning will remain on file for a period of nine months during which any specified required standard must be allowed. Final Written Warning If, following the first written warning there is no improvement in work performance, a repetition of the offence or a further or more serious offence/misconduct is committee, then the matter will be referred to a disciplinary meeting. If, following that meeting, a warning is considered necessary, a final written warning will be issued which will remain on file for a period of twelve months. If there is any further repetition of this behaviour, or if any other offences are committed this may result in dismissal."
[19]Miss Rowe also made it clear that she would return to work on 12 April 2005 and wished to move forward. Ms Lascelles replied that the appeal against the final written warning would take place on 13 April and the appeal against the grievance decision would be heard two days later; she told Miss Rowe that Opal would like her to stay at home until those matters were resolved or until they were satisfied she could return to work without risk to her health. The Tribunal found that this letter was an instruction to Miss Rowe to stay at home and that she was, in effect, thereby suspended. That finding, too, is not criticised. If suspended, the suspension should have been on full pay; but she received only basic pay, a shortcoming which gave rise to her successful claim for unlawful deduction. Miss Rowe stayed at home, as instructed.[20]The dates of the two outstanding appeals were both re-arranged; on 15 April Mr Cocker heard the grievance appeal. He said that he would investigate Miss Rowe's areas of concern and would reach a decision in two weeks; he did so, in fact, somewhat later on 6 May. He rescinded all the previous warnings (except the original warning given by Mr Chisnall; see paragraph 41 below). He said he would speak to Mr Dermody, the sales manager, about his findings before Miss Rowe met him to discuss arrangement for her return to work; but he did not do so.[21]Only the final written warning remained; on 21 April Miss Rowe's appeal against that warning was heard by Ms Lascelles. Ms Lascelles said that she would give her decision no later than 29 April. In fact she produced her conclusion on 5 May; she rescinded the outstanding warning.[22]Two weeks later, on 20 May, Miss Rowe and her representative met Mr Dermody. While Miss Rowe had been away there had been a reorganisation in the Corporate Sales Department; Mr Dermody felt that Miss Rowe would not want to return to her previous post; but he did not tell her that her previous post was not in existence; and there was no discussion as to whether she wished to return to that post. Mr Dermody had formed the view that Miss Rowe did not so wish and that it would not be prudent that she should do so. In effect the Tribunal's findings were that Mr Dermody told Miss Rowe she was to be forcibly moved to another post. He put forward an alternative post which he felt would suit her. Miss Rowe raised Mr Cocker's findings; but Mr Dermody, who had not been told of them, declined to talk about them although Miss Rowe had been led to believe that they would be discussed with him.[23]On 9 June Miss Rowe rejected the offer of the alternative post and resigned. The Tribunal summarised her letter of resignation at paragraph 34 of their judgment in this way:
"In summary, the reasons given are, firstly, the manner of dealing with her grievances and the bungling of the company's procedures. Secondly, the unacceptable outcome of the appeal by Mr Blumenthal and the inconclusive appeal by Mr Cocker, the failure to discuss the outstanding issues on 20 May 2005 which she had been led to believe would be discussed, the manner of the meeting on 20 May which she had been led to believe would be discussed, the manner of the meeting on 20 May and what was said in relation to the Dealer role, the fact that she had been told to remain at home during this period, a request that she return to work on 13 June without confirming her location or position and the removal and the removal of her job coupled with a lack of answers to her reasonable questions. She ended by saying that she continued to feel victimised and further bullied by the company's lack of clarity, lack of procedure and honesty and increased concern as to the nature of their intentions towards her if she were to accept the position."
The Tribunal's Decision[24]In paragraphs 36 – 48 the Tribunal set out their decision upon the agreed issue which arose from the victimisation claim; we do not need to explore those aspects of the Tribunal's decision in any detail. They decided that in the case of each issue there had been no less favourable treatment of Miss Rowe and/or that any less favourable treatment was not by reason of the relevant protected act, namely the complaint of sexual harassment. Some of the findings are, however of some significance for present purposes. In paragraph 38 the Tribunal said:
"it is clear that during this particular period the respondent and its Managers generally paid little regard to the company's procedures"
In paragraph 40 the Tribunal said, of Mr McSherry's attitude to Miss Rowe's explanation of the admitted shortcomings in her activity level that she had been sick and had been affected by Mr Chisnall's warning:
"Mr McSherry did not accept that her activity could be so affected. He appears to have had little regard to her circumstances and no understanding of how she could have been affected by these things. His focus at the meeting was on problems relating to the business market rather than her own personal problems. This was insensitive …"
[25]At paragraph 41 the Tribunal said of Mr Blumenthal:
"41. We now move on to the finding by Mr Blumenthal that the claimant should seek urgent assistance, namely counselling and/or medical for her emotional state. This relates to Mr Blumenthal's conclusions. He was concerned at the claimant's distressed state at the meeting. He had no previous experience of dealing grievances. He believed that it was appropriate that she should seek urgent medical or other advice. He had received no guidance from Human Resources as to handle this grievance and he put this inappropriate comment in his conclusions."
[26]At paragraph 43 the Tribunal concluded that the written warning issued in November 2004 was issued both in breach of Opal's own procedures and in breach of a fair procedure.[27]At paragraph 46 the Tribunal said:
"46. We turn to the final matter which is whether the claimant's job was removed and the conduct of the meeting on 20 May. We have found that at no point did the respondent tell the claimant that her job was being removed. There had been a re-structuring of the Corporate Sales Team so that most other Corporate Account Managers had moved into the Acquirers Team. The job had changed. There was no discussion with the claimant regarding returning to the team because the claimant had raised at a meeting with Frank Cocker whether there were other opportunities within the company and Mr Cocker, together with Mr Dermody, decided it would not be prudent for the claimant to return to the Corporate Sales Team in the light of her complaints against the Managers and her indication that she should not work with certain people and had reservations about others. They offered her the opportunity of the post of Dealer Manager on the same earnings and terms and conditions. Although no other alternative posts were posed at this point, the letter made it clear that if she considered that the Dealer Manager post was not suitable after a period of time she could apply for other posts."
[28]Having explained their reason for rejecting Miss Rowe's victimisation claim, the Tribunal then turned to the unfair dismissal claim. At paragraph 48 they set out the law in orthodox and unexceptionable terms. Having done so they addressed the issues of fact which it had been agreed arose for decision, namely – Did the alleged treatment of Miss Rowe (whether taken individually or together) amount to a breach of contract and, if so, was the breach sufficiently important to justify Miss Rowe's resigning on the last series of incidence justifying her leaving.[29]They said at paragraph 49:
"49. We now turn to issue 2.1 and 2.1. The claimant contends that she was entitled to resign as the respondent breached the implied term of mutual term of mutual trust and confidence. We have found that in this particular case there was a series of significant breaches of procedure. She was given a verbal warning without a meeting with Mr Chisnall, a first written warning at a review meeting, which was converted to a disciplinary hearing in breach of the respondent's own procedure and in breach of the statutory disciplinary procedure. Her explanation for low activity level was not considered sympathetically or reasonably by Mr McSherry. She was then subjected to a further disciplinary hearing and although proper procedures, such as notification were complied with, it was held prior to an appeal against the first written warning. When the disciplinary hearing took place the claimant had been off sick for some time with stress-related issues. Whilst the sickness may not have impacted on her activity for an earlier period it is relevant as to how an employer would administer a disciplinary sanction. No proper regard was taken by Mr McSherry of the claimant's circumstances at the time of the disciplinary hearing. He took no proper account of the fact that she had been recently signed off sick with stress which would have leant weight to her earlier explanation of her low level of activity He proceeded to give her a final written warning which was later found by other of the respondent's Directors to be awarded prematurely and too harsh. In addition, the claimant raised grievances regarding her treatment since she had raised the sexual harassment complaint and complained of breaches of procedure. It took the respondent several months to deal with those issues. Some of the delay was attributable to the fact that the claimant was unavailable due to her absence, but she was subjected to an inappropriate comment from Mr Blumenthal which is likely to have distressed her and whilst her warnings were extinguished she was not given details of Mr Cocker's findings on her specific complaints. This was important to her. Her feelings were compounded by the expectation raised by Mr Cocker that she would receive the results of his findings and discuss those and associated issues with Mr Dermody on 20 May 2005. It is likely that she lost trust and confidence when Mr Dermody told her that he had no knowledge of those matters and could not discuss them with her. Whilst the respondent offered the claimant a comparable alternative post, i.e. that of Dealer Manager, by this time the claimant had lost trust and confidence in the respondent and was not persuaded that the post offered was of a similar status and that her job had been removed."
And they continued at paragraph 50:
"50. We bear in mind the guidance in Malik v BCII [1997] IRLR 462 . Was this conduct so serious that justified the claimant resigning when she did? We accept that there can be cases where an employer commits minor breaches of procedure, and these do not necessarily lead to a breaching of trust and confidence. However, where an employer continually, over a long period of time, disciplines an individual without following their own procedures or, indeed, a fair procedure, that behaviour is likely to breach trust and confidence. Further, a failure to deal with justifiable grievances adequately is likely to further compound the situation. The claimant had quite justifiable grievances about the respondent's breaches of procedure in disciplining her. In this case there were flagrant breaches of procedure in the disciplinary process. Further, some of the actions by Mr McSherry were found to be too harsh. There was a failure to deal with her grievances adequately so that by the time that the claimant had been offered the Dealer Manager post, she had lost trust and confidence in the respondent. We find that the respondent's conduct in breaching the disciplinary procedures and the failure to deal with her grievances adequately was likely to breach that trust and confidence. Therefore to answer the question posed at 2.1.1 the respondent's conduct amounted to a breach of contract, namely breach of the implied term of mutual trust and confidence. We refer to issue 2.1.2 and find that the breach was sufficiently important to justify the claimant resigning. To answer 2.2 we find that she did not delay too long in resigning. The failure to discuss Mr Cocker's findings on 20 May, when she was specifically told they would be, we find was the last straw. She decided, following the receipt of the job description and the letter, shortly after 1 June, that she could no longer continue working for the respondent and she resigned on 9 June. That resignation was prompt. We find that the claimant was constructively dismissed."
The Grounds of Appeal Statutory Procedures[30]The first ground of the Notice of Appeal, at paragraph 5 appears as there set out to be a free standing point of law. It has, however, not been put that way in Miss Malik's skeleton argument, nor has it been put that way in her oral submission; it has been developed as part of Opal's perversity case. Miss Malik's criticises the Tribunal for saying, as they did at paragraph 43 in considering the procedural failures which occurred when Miss Rowe was given a third written warning in November 2005, that those failures were not only in breach of the fair procedure and of Opal's own disciplinary procedure but also in breach of the statutory disciplinary procedure, which, they said, was by that time in force. The Tribunal used similar words in paragraph 49. She submits that the breaches of procedure which undoubtedly occurred and which the Tribunal plainly regarded as serious did not constitute and that there were not breaches of the statutory procedure to which the Tribunal was referring, namely the standard dismissal and disciplinary procedure contained in Schedule 2 Chapter 1 of the Employment Act 2002, because that statutory procedure applies, pursuant to Regulation 3(1) of the Employment Act 2002 (Dispute Resolution) Regulation 2004 where an employer contemplates dismissing or taking relevant disciplinary action against an employee; and relevant disciplinary action is defined by Regulation 2(1) as:
"Action, short of dismissal, which the employer asserts to be based wholly or mainly on the employee's conduct or capability, other than suspension on full pay or the issuing of warnings (whether oral or written)"
[31]Miss Malik is technically correct in her submission that the Tribunal erred in forming the view that there was a breach of the statutory procedures set out in the 2002 Act, as indeed the Tribunal themselves accepted at a subsequent remedies hearing; there was no evidence of any disciplinary action being contemplated other than a warning; but(1) the Tribunal did not decide that the dismissal was as a result of such a breach of statutory procedure automatically unfair pursuant to Section 98(A)(1) of the Employment Rights Act 1996, which would have been the consequence in law in the circumstances of this case of a failure on Opal's part to comply with the statutory procedure; if it had been a major or substantial part of the Tribunal's approach to this case their view that there had a breach of statutory procedure would inevitably have led to a finding of automatically unfair dismissal(2) the statutory procedures in this case added nothing to Opal's existing procedures; for the statutory procedures, if they had applied, would have required no more of Opal than did their own disciplinary procedures. In our judgment the Tribunal's decision as to the seriousness of the breaches of procedure and absence of fairness on the part of Opal cannot be said to have been undermined or weakened by the erroneous inclusion of a reference to breach of statutory procedures – which inclusion was not followed up by the application of Section 98(A)(1) of the 1996 Act, particularly in the light of the Tribunal's view that the breaches of procedure were, in substance flagrant, – which view they were plainly entitled to reach irrespective of any statutory principles as to the correct procedure and on the basis of Opal's own procedure alone.[32]We conclude, therefore, that this argument does not adversely affect the Tribunal's decision that there were flagrant breaches of procedure on the part of Opal in their treatment of Miss Rowe. Breaches of Procedure[33]We should first point out that there had, in the history of this appeal, been difficulties into it is not necessary to go between the parties as to agreement of notes of evidence; we record, without criticism in this case, that the Tribunal Chairman's notes had not been obtained. It emerged, however, from discussion with Miss Malik and Miss Rowe that notes of evidence were not needed for the presentation of the parties' arguments; and we were able to proceed, with the parties' agreement, without them.[34]We are grateful to Miss Malik and Miss Rowe for their realistic approach to a problem which might otherwise have made progress more difficult.[35]The attack on the Tribunal's judgment on the basis of perversity is put in the Notice of Appeal on two broad grounds, the first relating to the Tribunal's conclusion at paragraphs 49 and 50 that there was a series of significant breaches of procedure and delays in the procedure, the second relating to the Tribunal's views in those paragraphs as to what had happened to Miss Rowe's job. We will address those two grounds in the same order.[36]There were, in essence, three limbs to Miss Malik's first ground, namely that the Tribunal's conclusion that(a) there was a series of breaches of procedure(b) that the breaches of procedure were significant and(c) that Opal were guilty of delay were perverse. In support of (a) Miss Malik submitted that there were only two breaches of Opal's disciplinary procedure, namely the issuing of the recorded verbal warning by Mr Chisnall in September 2004 and the issuing of the first written warning by Mr McSherry in November 2004 and no relevant breach of any statutory procedure (see above). In support of (b) she submitted, that as to the oral warning Miss Rowe knew of her right to appeal but did not exercise it, that the November warning was justified by reason of Miss Rowe's shortfall in performance which she did not dispute and when she had been off work sick for two days only during the relevant period and that both warnings were removed through the appeal process in any event before Miss Rowe resigned. The Tribunal, it was submitted, could not properly regard Miss Rowe's subsequent longer sickness in January and February 2005 as lending weight to a very brief sickness absence in November 2004. As to (c) the thrust of the submission on this point was that Opal had acted with due speed, having regard to Miss Rowe's periods off-work; for example the appeal against the first written warning had to be put off by reason of Miss Rowe's ill-health; the disciplinary hearing arising from the December review meeting had to be postponed for the same reason; the grievance hearing in response to Miss Rowe's grievance letter of 1 February 2005 took place on 3 March after she had been off work on 11 February and from 18 February to 1 March, the grievance appeal was sought on 23 March and was heard on 25 April, again after a lengthy period off work; if the chronology was looked at as a whole, there was no delay.[37]The word 'series' is not, at least in the present context, a statutory word or a term of art; we see no reason why of itself it should not be used to describe two consecutive events; but it is, in our judgment, a mistake to focus too closely on the specific meaning of one word; had the Tribunal used the word 'sequence' or 'number' instead of 'series' the thrust of their judgment would have been the same. It is important to concentrate not on semantics but on what the Tribunal said in paragraphs 49 and 50 as a whole; and if that is done it can be seen that the Tribunal were considering both failures on the part of Opal to comply with their own procedures (on two occasions – see the third sentence of paragraph 49) and the fairness with which Opal carried out those procedures. At paragraph 50 the Tribunal said:
"50 … where an employer continually, over a long period of time, disciplines an individual without following their own procedures or, indeed, a fair procedure, that behaviour is likely to breach trust and confidence."
The Tribunal were, in our judgment, plainly entitled on the basis of their primary findings of fact to conclude that in addition to failures to comply with their own procedures – which failure is of itself capable of being regarded as unfair – Opal had acted unfairly; the Tribunal specifically identified at paragraph 49 Mr McSherry's failure to consider Miss Rowe's explanation for her low level of activity reasonably or sympathetically, Miss Rowe's being subjected to a further disciplinary hearing when an appeal against the first written warning was still outstanding (and, we would add, bound to succeed because a proper disciplinary process had been gone through – see paragraph 43), the reaching of a decision insensitively (see paragraph 40) and which was later found to be premature, the initial decision to put her grievance before Mr Chisnall, who was somebody about whom she was expressing grievance, and the subsequent handling of it by Mr Blumenthal who had no relevant experience or knowledge.[38]We have addressed earlier in this judgment the Tribunal's view that there was a breach of the statutory disciplinary procedure. Miss Malik, with good sense, did not seek to contend the Tribunal's error in this respect amounted to more than support for her perversity case; but in our view it adds nothing of substance to that case. The Tribunal did not suggest that any failure of statutory procedure on Opal's part added to the damage to the relationship of trust and confidence.[39]While it is correct that Miss Rowe did not appeal against the oral warning given by Mr Chisnall, the fact that she did not do so did not necessarily remove the effect of Opal's unfair treatment of her. We have referred above to the Tribunal's conclusion that Opal paid little regard to their own procedures. It is open to a Tribunal to take the view that, irrespective of any right to appeal, the giving of a warning without any attempt to go through proper procedure is destructive of the relationship of trust and confidence. An employee is not bound to attempt to relieve herself of the effect of her employer's conduct by appealing against it. The Tribunal clearly had in mind that Miss Rowe had not appealed; for she disputed knowledge of the right to appeal; and the Tribunal made a specific finding of fact as to that at paragraph 19 of their judgment (a finding which Miss Rowe wished, but in the absence of any reference to the point in her answer, was not permitted to challenge).[40]Miss Malik's point that Miss Rowe was only off-work through ill-health for two days prior to the November meeting and the consequent first written warning is not, in our judgment, persuasive. It is obvious – and if it is not it is open to the Tribunal to take the view that – an employee's performance may be adversely affected by illness before and, indeed, after a period of actual absence from work. Most employees do not go off work immediately they feel ill or under par; and the Tribunal found at paragraph 21 that Miss Rowe explained to Mr McSherry that she lacked morale and motivation as a result of Mr Chisnall's warning and had been unwell and absent from work for a couple of days but that Mr McSherry's view was that those matters could not have affected her activity level. He was, the Tribunal found, insensitive to her explanation for her lack of activity. These were findings of fact plainly supported by evidence and open to the Tribunal, as was their conclusion at paragraph 49 that Miss Rowe's explanation for her low activity level was not considered sympathetically or reasonably by Mr McSherry.[41]Nor is their, in our judgment, any validity in Miss Malik's point that the various warnings were removed on appeal or through the grievance procedure. The Tribunal were well aware that that was so – they specifically said so in paragraph 49; they took that into account. It is manifestly open to a Tribunal to regard the giving of warnings to an employee unfairly or in breach of procedure as affecting the relationship of trust and confidence even if subsequently, after going through an appeal or grievance process, the employee succeeds in securing their removal. We should add that the Tribunal may not have appreciated, as was made clear by Miss Malik to us, that the oral warning given by Mr Chisnall was not rescinded by Mr Cocker because, pursuant to the disciplinary procedure, it lasted for six months only and that period had passed when Mr Cocker decided the grievance appeal. Thus while that warning was time-expired, the original giving of it was not expunged.[42]As to delay, in our judgment it was open to the Tribunal to regard delay as a relevant factor. Two months passed between Miss Rowe's appealing against the first written warning (on 9 December 2004) and the hearing of that appeal (on 4 February 2005). While Miss Rowe was off sick for some of that period she was at work for most of December. Further her appeal was not satisfactorily dealt with by Miss Lascelles who did not remove the warning altogether. The grievance letter was sent on 1 February 2005; but the issues which Miss Rowe raised were not finally dealt with until after the appeal heard by Mr Cocker. There was, when the findings of fact are looked at as a whole, evidence to support the Tribunal's conclusions in paragraph 49 that there had been delay, some of which was attributable to Miss Rowe's absence from work. The Tribunal did not find that every aspect of the various processes to which Miss Rowe was subjected were affected by delay; but it was open to them to conclude as to delay as they did.[43]For these reasons we are satisfied that the Tribunal did not reach any conclusion as to the procedural history between Miss Rowe and Opal which has been demonstrated to have been a conclusion which no reasonable Tribunal could have reached or as to which we should or could say 'My goodness that must be wrong'. Miss Rowe's job[44]At an earlier hearing the Tribunal identified as issue 1.7 'Did the Respondent remove the claimant's job?'; that issue arose because removal of her job was one of the reasons Miss Rowe gave for her resignation in her letter of 9 June 2005. On that issue the Tribunal found, at paragraphs 32 - 34, that Mr Dermody met Miss Rowe on 20 May 2005, that he had formed the view that she did not want to return and that it would not be prudent for her to return to her old job. He discussed with her the details of an alternative post which would afford her the same on-target earnings as Miss Rowe was entitled to at the time; but he did not tell her that her previous role was no longer in existence. She asked for a job description which was sent to her, accompanied by a letter which confirmed that her basic salary and other terms and conditions would be the same in the alternative post. At paragraph 46 the Tribunal found that at no point did Opal tell Miss Rowe that her job was being removed. It is, however, important that, at paragraph 39, they found that there was no discussion at all about her returning to her original team and that, when she raised the issue of Mr Cocker's findings on associated matters which she legitimately expected would be dealt with by Mr Dermody, he had no knowledge of those matters and referred her back to Human Resources. She was, understandably, upset when she was not, at this meeting, given the findings that Mr Cocker had led her to believe would be given and was unable to discuss them, as she had expected.[45]At the end of paragraph 49 the Tribunal, having referred to the previous history and to Miss Rowe's disappointment that she did not get at that meeting what Mr Cocker had led her to expect, said (and we do not apologise for repeating it):
"It is likely that she lost trust and confidence when Mr Dermody told her that he had no knowledge of those matters and could not discuss them with her. Whilst the respondent offered the claimant a comparable alternative post i.e. that of Dealer Manager, by this time the claimant had lost trust and confidence in the respondent and was not persuaded that the post offered was of a similar status and that her job had been removed."
[46]It was a common view in argument, that in that quotation, the word 'not' ought probably to have appeared in the last words of paragraph 49, between 'had' and 'been removed'. Miss Malik submitted that, having reached the factual findings we have set out, the Tribunal's conclusion in the last sentence of paragraph 49 was contradictory or alternatively perverse; the Tribunal, having found that Miss Rowe understood that the alternative post would have the same on-target earnings could not consistently or permissibly have found that she was not persuaded that the alternative post was of a similar status and, having found that her original job had not been removed, could not consistently or permissibly have found that she was not persuaded that her own post had not been removed.[47]In our judgment the Tribunal did not commit the errors for which Miss Malik contended. It was, as we see it, open to the Tribunal to conclude(1) that the alternative post carried the same package of terms and conditions as Miss Rowe's existing post(2) that Miss Rowe appreciated that the alternative post carried the same on-target earnings(3) that she was not persuaded that the post was of a similar status. There is no inconsistency of conflict between findings (1) and (2) and finding (3). The fact that the alternative post carried the same total package did not necessarily lead to the conclusion that Miss Rowe was so persuaded. The fact that she understood one aspect of the alternative post, the on-target earnings, was the same as in her existing post, did not necessarily lead to the conclusion that she was persuaded that the whole package was the same.[48]Similarly, a finding that her existing post had not been removed would not have been inconsistent with the finding that she was not persuaded that that was so. The Tribunal's finding was that Mr Dermody did not tell her that her existing post was no longer in existence; but there was no finding that he told her it was still in existence. On the Tribunal's findings there appears to have been no discussion about whether her original post had or had not been deleted. Mr Dermody believed that Miss Rowe did not want that post and did not want her to return to it. For that reason her existing post appears not to have been discussed; but if it was, there is, in the absence of the finding that Miss Rowe was told and understood that her previous post had not been removed (or that it had), no contradiction in the Tribunal's conclusions and no perversity. It was open to the Tribunal to make a finding as to her state of mind about the existence or removal of her existing post. We should add that there is no express finding that the existing job was or was not removed; but that is of no significance to the above analysis.[49]In any event, whether Miss Rowe was so persuaded or not was, on the Tribunal's conclusions, of no relevance. That is so because the Tribunal did not find that Opal's desire to move Miss Rowe to a new post was the last straw which finally caused her to treat the implied terms of trust and confidence as broken. It was, after all the matters set out in paragraph 49, Mr Dermody's telling Miss Rowe that he had no knowledge of the matters which Mr Cocker had given her to expect would be addressed at her meeting with Mr Dermody which the Tribunal, in the passage we have quoted above from paragraph 49, clearly regarded as the last straw. The Tribunal found that it was likely that i.e. on the balance of probability Miss Rowe lost trust and confidence at that stage; and in paragraph 50 they concluded that Miss Rowe was justified in treating the matters set out in paragraph 49 (which did not include the actual removal or actual non-removal of her original job) as amounting to a breach of the implied term of trust and confidence and in resigning. The Tribunal did not find that Opal had further broken or damaged the implied term by deleting her post or by offering her the lesser terms. It is significant, that at the end of paragraph 49, they restricted themselves to a conclusion as to Miss Rowe's state of mind or belief.[50]For these reasons we do not accept that the second limb of Miss Malik's appeal succeeds. Conclusions[51]No misdirection as to the law is suggested in this appeal. We are satisfied for the reasons we have set out that no perversity or other similar error of law on the part of the Tribunal has been established. This appeal is dismissed.