BRIDAL FASHIONS LTD v MRS M BURKE [2009] UKEAT 0038_08_0701

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0038_08_0701Case No Appeal No. UKEATS/0038/08Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
BRIDAL FASHIONS LTDAPPELLANTMRS M BURKERESPONDENT
Before
Lady Smith Mr M Sibbald Mr R ThomsonDate 7 January 2009
[1]APPEARANCES For the Appellant MR P WILSON (Representative) For the Respondent MR G LOCHRIE (Representative) Glasgow-Maryhill Citizens Advice Bureau 25 Avenuepark Street Glasgow G20 8TS SUMMARY UNFAIR DISMISSAL: Constructive dismissal Grievance procedure; whether reasonable for employers to refrain from progressing it whilst employee off work due to ill health in circumstances where employee in fact fully recovered but GP signing certificates finding the employee unfit for work on a diagnosis of stress. Parties also agreed that resignation letter not received by employers. Tribunal found that the claimant was unfairly constructively dismissed. On appeal, held that the tribunal had erred. There had been no effective dismissal, the Tribunal had not addressed the correct question in law when considering whether or not the claimant had been constructively dismissed and proceeded on the basis of assumptions that were not founded in fact. THE HONOURABLE LADY SMITH INTRODUCTION This is an employers' appeal from the judgment of an Employment Tribunal sitting in Glasgow, Employment Judge Mr A Worthington, registered on 1 April 2008. We will continue to refer to parties as claimant and respondents.[2]In terms of their judgment, the Tribunal found that the claimant had been constructively and unfairly dismissed and awarded her the sum of £4,016.85, a sum which had included a 50 per cent uplift to the compensatory award under and in terms of s.31 of the Employment Act 2002 . BACKGROUND[3]The claimant was employed by the respondents at their store in Bath Street, Glasgow, as a sales consultant. The tribunal found that that store was one of two stores that the respondents, as at the date of the hearing, operated in Glasgow but made no finding that the respondents had any store other than the Bath Street store prior to that.[4]By letter dated 19 December 2006, the claimant wrote to the respondents enclosing a sick line which is not quoted by the tribunal but was found by them to have: "covered her for stress caused within the claimant's working environment" (paragraph 7 of the Tribunal's judgment). We do, however, note that, according to a report provided much later by the claimant's GP (a matter to which we will return), the medical certificates in respect of the claimant all stated, simply "stress at work".[5]The claimant remained absent from work thereafter, on the basis of sick lines in the same or similar terms and did not return to work for the respondents. The Tribunal also states that the claimant, in her letter, identified the cause of stress as being her manager, who was named in the letter. She asked for a response within 7 days.[6]The respondents' payroll manager replied to the claimant's letter by letter dated 22 December which included the following terms:
"…we would not want to contribute to your stress and therefore we may delay our reply to such a time as you turn (sic) to work."
[7]The respondents' payroll manager wrote again to the claimant, by letter of 18 January 2007 in which she advised that the respondents took the claimant's allegations very seriously but it was important to have the issues investigated. She asked the claimant to summarise other incidents to which the claimant had referred and added:
"We will then investigate the matter in accordance with the company's Grievance Procedure."
[8]The respondents' Grievance Procedure is contained in their employee handbook and states that one of the purposes of the procedure is to deal with any grievances:
"……within as short a time as possible…"
It also states that:
"………each step and action of the procedure must be taken without unreasonable delay."
[9]The claimant provided further details of her allegations by letter dated 2 February 2007. As she had not heard anything by late February 2007, she re-sent her letter. The respondents' payroll manager replied by letter dated 27 March 2007 which included the following terms:
"…we are investigating your claims and once we have concluded we will contact you with our findings."
[10]The claimant heard nothing further and so she wrote again in August 2007, asking for an update and for a response within 7 days. She did not receive one. She wrote again stating:
"I am very distressed at the length of time it has taken for this situation to be addressed."
[11]The respondents' Human Resources Manager, Paul Wilson, gave evidence before the Tribunal and at paragraph 16, they found:
"By file note date (sic) 24 th September 2007 (R13) Paul Wilson, who has been the respondent's Human Resources Manager since February 2007, and who was previously their Recruitment Manager, made a file note that he had spoken with ACAS about the claimant and that they had advised the respondents to reply to the claimant advising her that her grievance would be heard once she was declared fit to return to work. Mr Wilson also understood the advice to include the proposition that hearing a grievance while the claimant was absent from work as the result of stress could result in the medical condition being exacerbated and that it should therefore be avoided."
[12]Mr Wilson thus wrote to the claimant by letter dated 24 September 2007, stating that he was happy to investigate her grievance but he could only do so once she had returned to work, otherwise there was a risk of causing her further stress. Thereafter, with the claimant's consent, the respondents obtained a report from her General Practitioner. Her doctor provided reports dated 25 and 2 November 2007. This was the first occasion on which the respondents were provided with any detail as to the cause of the claimant's absence from work other than what was contained in the sick lines (as above) which had evidently been in the usual very brief terms. The claimant's general practitioner, Dr Wiggins, advised that when he first signed her off work, she was suffering from significant anxiety and stress and that when he saw her on 15 January 2007, the claimant had complete resolution of her symptoms but "as the situation at work had continued she was still waiting a response to her original letter."[13]The claimant had apparently not told Dr Wiggins that she had received a response from the respondents by letter of 22 December or that they had, in that letter, expressed concern at the risk of their contributing to her stress in dealing with her grievance prior to her return to work.[14]The claimant's doctor thus stated that he thought it appropriate to continue her sick line in circumstances where she was still, he thought, waiting for a reply to her original letter. He proceeded on the basis that the claimant had told him that if she returned to work her symptoms would recur (not on any assessment of his own as to that matter) and that was why he had continued to certify her as unfit for work.[15]We observe that Dr Wiggins was, accordingly, issuing certificates which stated that he diagnosed the claimant as suffering from "stress at work" at a time when the claimant was in fact fit and symptom free. We do not require, in this judgment, to make any determination as to whether or not he was, somehow, justified in doing so but we cannot help but express surprise that a doctor, on his professional responsibility, can think it appropriate to sign a certificate to the effect that he diagnoses his patient as suffering from symptomatology from which she is in fact free. Any general practitioner is well aware that such a certificate has important legal consequences. Were it the case that it is appropriate to issue sick lines on the basis that the stated diagnosis is not what the doctor considers his patient is presently suffering from but what he thinks the patient is at risk of suffering from if they go to work, a plethora of such certificates could be seen as justified in, for instance, the winter months, with a diagnosis of "flu" being written as the cause for the certificate because of the risk of him catching flu at work, despite the fact that as at the date of the certificate, the employee is fit and well. The absurdity and impropriety of such an approach is obvious.[16]Separately, what, we note, the doctor's approach meant here was that although the claimant knew that she was well and symptom free throughout 2007, the respondents did not know that. They were in receipt of regular certificates telling them that the claimant was in a continuing state of ill health.[17]The claimant did not communicate any further directly with the respondents. She moved straight to signing her form ET1 on 5 November 2007. By letter dated 12 November 2007, the Maryhill Citizens Advice Bureau wrote to the respondents on her behalf in terms which included:
"..our client therefore feels that due to your lack of response in dealing with this matter you have left her with no alternative but to consider herself constructively dismissed."
[18]Parties were, however, agreed (as was confirmed in the course of the hearing before us) that that letter was not received by the respondents.[19]She lodged her form ET1 on 14 November 2007. She began to look for and found alternative employment, which commenced on 20 December 2007.[20]Consistently with their not having received the letter of 12 November 2007, the respondents stated in their form ET3 that the claimant was still employed by them.[21]It was in these circumstances that the tribunal found that the claimant had been unfairly constructively dismissed. We refer to their reasons for so concluding in our discussion below. Relevant Law[22]Firstly, as a simple matter of the law of contract, for a withdrawal from any contract to be effective, including a resignation by an employee from a contract of employment, that withdrawal requires to have been communicated from the party withdrawing to the other party. It is not enough that the employee knows that she has decided to resign or that she or her agent have written a letter of resignation or indeed, that the letter has been sent. Until the resignation is communicated to the employer, the contract remains intact and unchanged. The employee remains in the employers' employment.[23]It was suggested to us by Mr Lochrie that the claimant's form ET1, which was communicated to the respondents effectively, could serve as a communication of her resignation. We very much doubt whether that could ever be the case but we note, from the terms of the ET1 that that was not the claimant's approach in this case. She refers to her constructive dismissal having been in the past and does not seek to suggest that the ET1 is being used as intimation of her resignation.[24]Secondly, constructive dismissal arises only where an employee has resigned in circumstances where the employer is in fundamental breach of contract. The fundamental breach relied on in this case was a breach of what is, in shorthand, referred to as the implied term of trust and confidence. Put more fully, as discussed by this Tribunal in the case of Abbey National PLC v Fairbrother [2007] IRLR 320 , under reference to Malik v BCCI SA (in liquidation) [1997] ICR 609, Western Excavating v Sharp [1978] IRLR 27 and Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347 , the question that requires to be addressed is whether the employee has resigned because of the employer having, without reasonable and proper cause, conducted itself in a manner which is calculated to destroy or seriously damage the relationship of trust and confidence. The Appeal[25]Mr Wilson, the respondent's Human Resources Manager, represented them at the appeal. He submitted that the tribunal had erred in finding that the respondents had acted unreasonably. He relied on the case of Dr PA Harlow v General Healthcare Group Ltd UKEAT/ 0436/01, as being in point. There, a tribunal had found that it was reasonable for an employer to wait until an employee who was off sick due to stress was well enough to return to work before progressing a grievance procedure and this tribunal had agreed with that conclusion. He also referred to Abbey National plc v Fairbrother for a submission that the range of reasonable responses test applies to the question of whether or not there had been a constructive dismissal in the context of a grievance procedure. He submitted that the test for constructive dismissal had not been met. He also confirmed that the tribunal were aware that the respondents had not received the letter of 12 November 2007 and submitted that they should have taken that into account.[26]Mr Wilson also relied on paragraph 80 of the ACAS Code of Practice 1 – "Disciplinary and Grievance" at Section 2, page 26, which states that the statutory grievance procedure did not need to be followed if circumstances beyond the control of either party prevent one or more steps being followed within a reasonable period, and cites long term illness as an example of such a circumstance.[27]For the claimant, Mr Lochrie of the Citizens Advice Bureau confirmed that it was accepted on behalf of the claimant that the respondents had not received the letter of 12 November. So far as the problem that created for the claim was concerned his response was that it was not the CAB's or the claimant's fault if it had not been received; the CAB had a massive workload and sent out very many letters. They did not know it had not been received and only found out that that was the case at the stage of the tribunal hearing.[28]Otherwise, Mr Lochrie approached matters on the basis that the respondents had acted unreasonably because they knew that the claimant could not go back to work since to do so would make her ill and they knew that her doctor was saying that she could not go back to work until such time as her grievance was addressed. This was, it seemed, his approach so far as the whole of the period between the original intimation of the claimant's grievance and the letter of 12 November was concerned, notwithstanding the fact that until Dr Wiggin's letters to the respondents at the end of October and beginning of November 2007, they did not have any idea at all of what lay behind the doctor's thinking in continuing to sign certificates that the claimant was unfit for work.[29]Mr Lochrie stated that he felt the tribunal had looked at the whole situation. The respondents could have sent the claimant to work in one of their other stores and got her back to work that way.[30]Regarding the ACAS Code, Mr Lochrie referred to that part of paragraph 80 of the code that indicates that where possible "another manager should be appointed" to deal with the grievance procedure. We were not, however, entirely clear why, since the respondents were not relying on long term sickness absence of the manager that was dealing with the claimant's grievance, which is the only situation with which that part of the paragraph is concerned.[31]Mr Lochrie was also critical of the respondents for having failed to seek to sist the claimant's tribunal claim and take the grievance procedure forward. He did, however, accept that any sist would have been within the discretion of the tribunal and the success of such an application would not have been a foregone conclusion. Further, he did not explain how, given that it was the claimant's position that she had resigned and the contract of employment therefore at an end, on what basis the respondents could be said to have been in any position to deal with an employee grievance at that stage. Discussion[32]The reasoning by which the tribunal arrived at the conclusion that the claimant had been unfairly constructively dismissed was, firstly, that the claimant had done all that she could to have her grievance considered and resolved. Secondly, they considered that the respondents had "wholly failed" to follow their own grievance procedure (paragraph 36). Also, they considered that the respondents should have realised that what they were wanting the claimant to do, namely to return to work before they were prepared to discuss her grievance, was not likely to happen because the rationale for her sick leave was stress and anxiety brought on by her workplace and more particularly, her boss.[33]Then the tribunal state, at paragraph 37, that it is clear to them that the respondents should, as reasonable employers, have arranged to visit the claimant at home to discuss her grievances or they could have interviewed her boss for her version of events.[34]As regards the first of the matters relied on by the tribunal in paragraph 37, they do not address the question of why it was that the respondents should have thought that it was appropriate to visit the claimant at a time when she was sending in certificates telling them that she was in a state of ill health. As regards the second matter, they do not suggest what the respondents would have been able to do if the claimant's boss had referred to matters which were not covered by the claimant's existing written grievance, how they would have gone about satisfying the claimant that her "case" had been properly put to her boss or more importantly, how such a procedure would have complied with the statutory requirement that the employer invite the employee to a meeting to discuss the grievance ( Employment Act 2002 Act Sch 2, Part 2 para 7).[35]The tribunal goes on, in paragraph 37, to suggest that the respondents could have interviewed independent witnesses but there are no findings in fact to the effect that there were any independent witnesses to the matters in respect of which the claimant raised her grievance. They finally comment that the respondents could have offered the claimant work in their other Glasgow store "since it was clear from Dr Wiggins' report that the reason he continued to sign the claimant off was essentially because he assumed that if the claimant returned to work, she would once again meet up with" her boss. But the Tribunal make no finding that that would not happen if she worked for the respondents in another store nor do they find there was a post available at another store in Glasgow. More fundamentally, they do not make any finding in fact that, in 2007, the respondents operated another store in Glasgow. And the tribunal, further, appears to have overlooked the fact that it was only at the beginning of November 2007 that the respondents were made aware of the true basis on which Dr Wiggins was signing the claimant off work.[36]Finally, the Tribunal states at paragraph 38 that:
"One way or the other, what the respondents were not entitled to do was nothing."
[37]Whilst the Tribunal has had regard to the fact that the claimant did not herself write a letter of resignation, they appear to have had no regard to the fact that the respondents did not receive the letter of 12 November. Indeed, despite it being agreed between parties that it was not received (we were advised by parties that the tribunal was told of that agreement), they have proceeded on the basis that they did.[38]Further, the Tribunal does not explain how and why, in the whole circumstances of the case, the test for constructive dismissal was met, namely that the respondents had, without reasonable and proper cause, conducted themselves in a manner which, objectively considered, was likely seriously to undermine the necessary trust and confidence in the employment relationship. In particular, the Tribunal did not consider whether, given that all that the respondents knew until the beginning of November 2007 was that the claimant was in a continuing state of ill health, they had reasonable and proper cause for their conduct in not moving forward with processing her grievance and inviting her to a meeting. Nor, apparently, did they consider whether the conduct complained of was calculated to destroy or seriously damage the employer/employee relationship of trust and confidence, something which they should have done. Nor did they have regard to there being a range of reasonable responses open to an employer as to the manner in which a grievance is dealt with ( Abbey National plc v Fairbrother ). Decision[39]We are readily persuaded that we should uphold this appeal.[40]Firstly, the tribunal wholly failed to recognise that the claimant had not effectively communicated her decision to resign to the respondents. That meant that there was not, on any view, a basis for her claim of constructive dismissal at all. That alone is sufficient for the appeal to be upheld and the claimant's claim dismissed.[41]We would, however, add that we are not persuaded that the tribunal applied the correct test for constructive dismissal. Whilst they decided that the conduct complained of was that the respondents did not progress the claimant's grievance and they refer to the Western Excavating case, they do not begin by asking themselves whether the respondents had reasonable and proper cause for so doing. They ought to have done so. It was the respondents' case that it was reasonable for them to hold off progressing the grievance whilst they were receiving medical certificates telling them that the claimant was in a state of ill health and the tribunal required to consider whether that amounted to reasonable and proper cause for not progressing the grievance. Nor did they go on and consider whether the respondent's conduct was, in all the circumstances, such as could be said to be calculated to destroy or seriously damage the relationship of trust and confidence between employer and employee. Not all defects in the progression of grievance procedures will justify that conclusion being drawn, as was discussed in Abbey National plc v Fairbrother .[42]Further , the tribunal's conclusion was reached by reliance on a list of things that they state, at paragraph 37, that the respondents should have done but in the case of two of them (interviewing independent witnesses and transferring the claimant to another store in Glasgow) they were not based on any findings in fact and in respect of the proposal that the respondents should have visited the claimant at her home and should have gone ahead with the grievance procedure without her, they did not consider the very significant questions that needed to be addressed regarding them to which we have already referred. In the light of these failings, their conclusion that the claimant was unfairly constructively dismissed was flawed as a matter of law.[43]Had the correct approach been adopted to the facts of this case, we conclude that the only conclusion that would have been open to the tribunal would have been that the respondents did have reasonable and proper cause for not progressing matters so long as they were under the impression that the claimant was in a state of ill health and, further, no conclusion could have been drawn that they should have proceeded as is suggested at paragraph 37 of their judgment. Whilst the respondents eventually learnt from the claimant's general practitioner what the true position was, that exchange of information was not completed until the doctor's letter of 2 November 2007, a date which was rapidly followed by the claimant signing her form ET1 (on 5 November 2007), the CAB sending the letter of resignation of 12 November 2007 and the ET1 being copied to the respondents on 16 November 2007. The respondents did not, as we have noted, receive the letter of 12 November. In all the circumstances, they cannot be criticised for not having taken action to progress the grievance once they knew, from the exchange they had with Dr Wiggins, that she was in fact fit and well. Matters were then rather taken out of their hands by the claimant's somewhat precipitate decision to present a claim to the tribunal. Disposal[44]We will, accordingly, pronounce an order upholding the appeal and dismissing the claim.