CLEVELAND POLICE AUTHORITY v MRS S FRANCIS [2010] UKEAT 0262_09_1103

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0262_09_1103Case No Appeal No. UKEAT/0262/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CLEVELAND POLICE AUTHORITYAPPELLANTMRS S FRANCISRESPONDENT
Before
His Honour Judge Richardson Dr B V FitzgeraldDate 11 March 2010
[1]APPEARANCES For the Appellant MR COLIN BOURNE (of Counsel) Instructed by: Cleveland Police Headquarters Legal Service PO Box 70 Ladgate Lane Middlesbrough TS8 9EH For the Respondent MR JOSEPH FRANCIS (Representative) SUMMARY PRACTICE AND PROCEDURE: Perversity UNFAIR DISMISSAL: Constructive dismissal Constructive dismissal – appeal on the ground that the Tribunal's reasons were perverse – appeal dismissed HIS HONOUR JUDGE RICHARDSON This is an appeal by the Cleveland Police Authority ("CPA") against a judgment of the Employment Tribunal sitting at Thornaby (Employment Judge Rogerson presiding) dated 1 April 2009. Following a hearing which lasted 11 days in January 2009 the Tribunal upheld the complaint of Mrs Susan Francis that she had been unfairly and constructively dismissed. The Tribunal also rejected an argument by CPA that she could and would in any event have been fairly dismissed soon afterwards.[2]There is no suggestion by THE CPA that the Tribunal made any error in its understanding of the law which it had to apply. Rather CPA's appeal is to a large extent grounded on an allegation that the Tribunal's findings were perverse. Since there is an appeal to the Appeal Tribunal only on a question of law, the scope for an appeal which effectively challenges factual conclusions is limited. The test is set out in the well-known judgment of Mummery LJ in Yeboah v Crofton [2002] IRLR 634 at paragraph 93-95: . .. 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': British Telecommunications plc v Sheridan [1990] IRLR 27 at paragraph 34.94. Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the extended reasons of an employment tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination of the Employment Appeal Tribunal.95. Inevitably, there will from time to time be cases in which an employment tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal.[3]In this appeal Mr Bourne on behalf of CPA submits that, although individual findings of the Tribunal might be supportable, taken together the findings of the Tribunal demonstrate perversity. In an attempt to make this submission good he has taken us at considerable length through a substantial amount of the documentation which was before the Tribunal in its eleven day hearing. We will, in accordance with his invitation, look not only at individual findings of the Tribunal but also at the overall picture. We must however bear in mind that we have not seen all the documentation which was before the Tribunal; and more importantly still, we do not have the Tribunal's great advantage of seeing and hearing the witnesses.[4]We record that, although Mr Bourne has made frequent reference to the lack of a written grievance in respect of certain allegations, he has confirmed that it is not his argument on appeal that any part of the claim was barred by section 32(2) of the Employment Act 2002 . His point is rather that Mrs Francis made allegations later which were not part of a formal grievance at the time, and that the Tribunal ignored this matter when reaching its conclusions. There has, at times, also been a sub-theme in Mr Bourne's submissions that a matter was not properly pleaded by Mrs Francis. The background facts and issues[5]Mrs Francis was employed by CPA at its Middlesbrough headquarters. Her employment commenced on 10 October 2005.[6]Initially she worked in the Central Crime Bureau as a VDU operator. While she was in the Central Crime Bureau there were two teams. On 14 March 2006 a member of her team presented a grievance in which he complained of bullying and harassment by the other team, who became called "the Famous Five". While she did not herself present a grievance Mr Francis was interviewed as a witness and described incidents which supported her colleague's grievance and amounted to what the Tribunal described as "exclusionary or isolating" behaviour towards her. When the grievance was investigated CPA's manager found that there had indeed been inappropriate conduct and exclusionary behaviour towards Mrs Francis' colleague.[7]On 18 May 2006 Mrs Francis was promoted to be a Police National Computer ("PNC") operator. She remained in this post until her resignation with notice, which took effect on 13 October 2007. Two members of the other team at the Central Crime Bureau were also promoted. It was Mrs Francis's case that she was deliberately isolated and excluded by the rest of the team while working in that department.[8]While she was in that department Mrs Francis was managed by Inspector Veitch. It was her case that he treated her in an intimidating and unacceptable manner. She was working substantial hours of overtime – not, it seems, as a PNC operator, but clearing a backlog in the Central Crime Bureau. She says that she was also entitled to time off by reason of the overtime she worked; but when she pursued that claim he criticised and tore up the sheets on which she presented it. In late February 2007 she presented a grievance concerning his bullying. A meeting between the two of them took place in a canteen in March 2007 for the purpose of resolving this grievance.[9]On 2 April 2007 at a meeting very shortly before she went on 12 days leave CPA placed Mrs Francis on an "action plan" on the grounds that she had committed inputting errors. Thereafter she went on sickness absence. Initially this was for a cold and viral infection; she was admitted to hospital for the viral infection on 26 April 2007. Thereafter, however, the absence was certified on the grounds of work related stress.[10]CPA operated its "capability procedure". On 10 August there was a lengthy meeting at her home described by CPA as a "welfare visit". On 3 September a sickness capability hearing lasting more than 3 hours was conducted at her home. As a result of this hearing CPA issued her with a verbal improvement notice and action plan. On 16 September Mrs Francis resigned. The Tribunal's reasons[11]Mrs Francis relied on implied terms of her contract with CPA – in particular the implied term that CPA would not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.[12]She relied on a cumulative series of acts taken together to amount to a breach of an implied term of her contract of employment. She said that the issuing of the verbal improvement notice and action plan on 13 September 2007 was the last straw.[13]In its conclusions the Tribunal analysed her case in the following respects:(1) bullying and harassment by the other team during her time in the Central Crime Bureau (paragraph5.1 ),(2) deliberate isolation and exclusion by the rest of the team while working as a PNC operator with the knowledge and participation of the training mentor (paragraph5.2 ),(3) the conduct of Inspector Veitch (paragraph5.3 ),(4) the manner of issuing the action plan to her in April 2004 (paragraph5.4 ),(5) the allegedly intimidating and unsupportive circumstances in which the capability meeting was held in September 2004 (paragraph5.5 ),(6) the issuing of the verbal improvement notice and action plan (paragraphs 5.5 and5.6 ). In all these respects the Tribunal found to a substantial extent in favour of Mrs Francis.[14]Prior to reaching its conclusions the Tribunal had set out its findings of fact. These findings are in 52 paragraphs of closely typed text. Sometimes the findings would have read more easily if they had been set out in shorter paragraphs. But there are detailed findings underlying the conclusions in paragraph 5 of the Tribunal's reasons.[15]We will address the arguments of CPA separately in the six respects which we have identified. (1) The Central Crime Bureau period[16]The Tribunal's conclusion was:
"5.1 Looking at the series of acts the first was that she had been subject to bullying/harassment by the 'famous five' during her time in CCB (see paragraphs 2.2-2.5). The respondent was aware of the claimant's complaints and had a duty to provide a safe working environment free of bullying and harassment. Once notified of the complaints during the Axford grievance the supervisors/managers had a duty to act even though the claimant had not raised a grievance. Management had recognised that the claimant had also been subjected to this treatment. There was no follow up or monitoring of Sarah Peacock and Katy Duck, the 2 individuals from the 'famous five', who were going to be working with the claimant in the new role in PNC. The claimant was quite rightly concerned about taking the role and was assured that she would not have to work with them because of the way the shifts would be arranged but the promised arrangements were changed. Those were all actions likely to damage trust and confidence and the respondent had acted without reasonable and proper cause. The respondent's counsel in his submission contended that on this and the earlier acts relied on, if they were found to be breaches of the implied term of mutual trust and confidence, the claimant had affirmed the breach because she did not protest/resign, she accepted the changed arrangement. Even if she had affirmed the earlier breaches, it was the claimant's case that this was a "last straw" case. She relied on the cumulative effect and the final straw and it was immaterial if the claimant affirmed earlier breaches unless we found the final straw was 'entirely innocuous and not capable of contributing to that series of earlier acts'."
[17]On behalf of CPA Mr Bourne's challenge to this part of the Tribunal's reasoning is limited. There is no challenge to the finding that Mrs Francis was subjected to the treatment she alleged. There is no challenge to the finding that she was assured she would not have to work with the two individuals, and that the promised arrangements were changed.[18]Mr Bourne submits that the Tribunal ought to have discounted these allegations because Mrs Francis did not set out a grievance at the time. He says that the matters first formed part of a grievance only in the very last days of her employment, and that no detail was given until further and better particulars of the claim were served during the Tribunal process. As we have already said, Mr Bourne's submission is not directed to section 32(2) of the Employment Act 2002 (which at the time relevant to this case had the effect of barring a complaint to the Tribunal unless an employee had set out a grievance in respect of it in writing). His submission is rather that in evaluating the allegation of breach the Tribunal ought to have taken into account the lack of any grievance by Mrs Francis at the time of the events.[19]There is, to our mind, nothing of substance in this point. The Tribunal accepted that there was no grievance at the time; but found specifically that Mrs Francis made complaints during the investigation of her colleague's grievance, and that CPA's management had a duty to act. This conclusion, which we have quoted, was amply supported by its findings of fact, especially in paragraph 2.5 of its reasons. It is supported by the note we have seen of an interview conducted with her. There is no error of law in the Tribunal's reasoning and its conclusion is not perverse.[20]Mr Bourne also complains that a particular finding of the Tribunal was perverse. Mrs Francis complained that members of the "famous five" group used the phrase "big monkey, little monkey" as a code to refer to certain other people without naming them. She was cross examined to the effect that at different times she had interpreted the phrase as referring to different people. Mr Bourne has taken us through documents tending to indicate that at first Mrs Francis considered the code to refer to supervisors, but later came to identify it with a member of her own team and with her husband. It was said that this went to her credibility.[21]The Tribunal said:
"2.3 …We did not accept that it did. We preferred the claimant's evidence, the phrase was as code and regardless of who it was intended for the use of coded language by the famous five in this way was another example of exclusionary behaviour, consistent with the other types of exclusionary behaviour described by the claimant and Dean Axford which the respondent had found had taken place."
[22]We see nothing perverse in this conclusion. It is a conclusion which a Tribunal of fact, having seen and heard the witnesses, was fully entitled to reach.[23]These were Mr Bourne's principal points on the first part of the Tribunal's reasons. He complained also in his skeleton argument of a finding by the Tribunal at paragraph 2.9 of its reasons; but that finding appears to us to be correct. He developed oral submissions, not immediately related to anything in his grounds of appeal or skeleton argument at this point, concerning an occasion when a member of the other team "offered outside" Mrs Francis; but again this seemed to us no more than a detailed recitation by Mr Bourne of evidence which was a matter for the Tribunal. (2) The Police National Computer period[24]The Tribunal's conclusion was:
"5.2 The claimant also relied on the way she was deliberately isolated and excluded by the rest of the team whilst working in PNC, and the way she was unfairly treated during the training period with the knowledge and participation of the training mentor, Eric Linberg. Judged sensibly this was conduct likely to damage the trust and confidence term and there was no reasonable and proper cause for Mr Linberg to conduct himself in this way given the position he held. The claimant was excluded in the exchange of telephone numbers and texts, the sharing of information or help between the PNC operators, and the exchange of emails/jokes shared between Mr Linberg and the other PNC operators. It was also clear from the emails that we saw (see paragraph 2.8) that whilst working in PNC the claimant quite rightly perceived that they were continuing to behave in a exclusionary way towards her, they were picking on her (bullying and harassing her) and were setting her up to fail by deliberately and secretly logging her mistakes. It was not their job as fellow employees to do this. There was no reasonable or proper cause for this behaviour. It was conduct that was conduct that was likely to damage trust and confidence. Even if the diary was kept with the knowledge and approval of the respondent there was no reasonable or proper cause for doing this. If an employer has concerns about an employee's work, then the employee's managers should raise those matters directly with the employee instead of asking other employees to spy on the employee."
[25]Again it is important to note the limited scope of the appeal.[26]The Tribunal found that other members of staff had kept a secret diary about Mrs Francis and that they communicated with members of management about this secret diary. The intention behind the emails of these members of staff was to highlight her mistakes in a derogatory and mischievous way to cause trouble. There is no challenge to the Tribunal's findings in this respect, which are set out in considerable detail in paragraph 2.8 of its reasons.[27]These emails were not disclosed until these proceedings; so Mrs Francis was not aware of the specifics, but she was aware in general terms of what was going on, and once saw a diary on the desk of another employee. As the Tribunal put it, she formed her belief at the time that information was being kept on her, and that she was being set up to fail; and she was right. This was, to our mind, a conclusion the Tribunal was fully entitled to draw from the facts it found.[28]On this point, Mr Bourne submits that the Tribunal made findings which it was not entitled to make. Since Mrs Francis did not know the full detail of what happened about the secret diary until the emails were disclosed, the Tribunal ought not to have found that it was part of the cumulative series of acts resulting in her dismissal. There is no substance in this point. As the Tribunal made clear in paragraph 2.8 of its reasons, Mrs Francis was aware in general terms of what was going on; the fact that some of the detail only emerged once CPA was required to disclose contemporaneous emails and then in evidence at the Tribunal only goes to establish that Mrs Francis was correct in her belief at the time as to what was happening.[29]Mr Bourne again submits that Mrs Francis's complaints in these respects were not the subject of a grievance at the time. Again, however, this does not in any way prevent the Tribunal from adjudicating on them; what weight, if any, the Tribunal attached to the lack of a grievance at the time is a question of fact and evaluation rather than a question of law. Where, as here, an employee relies on cumulative acts and omissions as constituting a breach, it is not inherently surprising that a period of time may elapse before an employee starts to make formal complaints. We should, however, note in passing that Mrs Francis did complain at the time to Mr Lindberg about the behaviour of her colleagues – for example, in a supervision meeting as early as 12 August 2006, about which the Tribunal made findings in paragraph 2.7 of its reasons. There was a sound factual basis, set out in paragraph 2.7 of the reasons, for the Tribunal's conclusions concerning this period.[30]Mr Bourne submits that the Tribunal made a specific mistake of fact in stating, in paragraph 2.7 of its reasons, that there was no evidence that Mrs Francis spent more time on the computer during training than her colleagues. He says there was specific evidence from Chief Inspector Simpson on this issue, involving the production of a table; and that it was not disputed in cross examination. This is, however, a very minor point casting in our judgment no doubt whatever on the Tribunal's overall findings.[31]We have considered Mr Bourne's submissions on this part of the appeal both individually and cumulatively. They come nowhere close to establishing that the Tribunal's conclusion was perverse. (3) Inspector Veitch[32]The Tribunal's conclusion was:
"5.3 The claimant also relied on the conduct of Inspector Veitch as part of the cumulative effect, which resulted in her resignation. In her grievance about Veitch (see paragraph 2.14) she described being "appalled by his manner, his bullish attitude and what seem to be none other than intimidation and behaviour which was unacceptable"
. We found the conduct of Inspector Veitch (the manner in which he spoke to the claimant about her claim, which had been authorised at the time of the overtime worked, the unnecessary and repeated requests for information from the wages dept, refusing to meet with her, pushing her to make a grievance etc) was conduct likely to damage trust and confidence and was without reasonable and proper cause. The claimant may have affirmed the breach by accepting an apology (which we found was not in fact made) but it was one act in a series of acts relied on. His subsequent victimisation of the claimant for raising a grievance about him and his overreaction to the curry recipe email and the 'punishment' files he gave her were acts likely to damage trust and confidence and were done without reasonable or proper cause."[33]Once again it is important to note the limited ambit of Mr Bourne's submissions. The Tribunal found the following facts to which there is no challenge. Mrs Francis had cause to present a grievance about his behaviour towards her; that grievance was justified (the behaviour included tearing up time sheets in front of her on the grounds that they were wrongly completed); he agreed to apologise to her; the matter was not handled in accordance with the grievance procedure; she was left to meet the perpetrator of the bullying at a meeting with him alone in a darkened canteen when she was pressurised to compromise the value of a claim for overtime or time in lieu; and after she presented her grievance he criticised her unduly over a recipe which she posted on the computer system and gave her additional work to do saying that it was "as a punishment".[34]Mr Bourne has taken us in some detail through the documents relating to the canteen meeting. The Tribunal found that the date of this meeting was 27 March 2007. There is documentary material indicating it is likely that the meeting was earlier than this – prior to 22 March. But nothing in Mr Bourne's submissions persuades us that the Tribunal's overall assessment of the meeting, which undoubtedly took place, was wrong.[35]Otherwise Mr Bourne's challenges in respect of this part of the case do not, in our view, have any substance. He complains of the way it was pleaded on her behalf; but there was a contemporaneous written grievance dealing with much of her complaint, so to our mind no great detail was required for CPA to know the case it had to meet. He complains that the Tribunal found that Inspector Veitch did not apologise at the meeting in the canteen; but the Tribunal's consideration of this matter in paragraph 2.23 of its reasons was detailed and careful – and supported by Inspector Veitch's own later assertion that he did not apologise in the true sense of the word. Mr Bourne submits that if Inspector Veitch's conduct amounted to a breach it was waived; but the Tribunal found that there was a cumulative series of acts encompassing behaviour before and after this period, so the Tribunal did not decide the case on any mistaken view of the law about waiver. He submits that the Tribunal should have recorded that Inspector Veitch gave Mrs Francis the additional work as a joke. We do not think the Tribunal had forgotten the evidence that he said this. But it was an unattractive joke, given the grievance and his promise to apologise.[36]Again, nothing in Mr Bourne's submissions persuades us that the Tribunal's conclusions were perverse. (4) The Action Plan[37]The Tribunal's findings concerning the Action Plan were as follows: "5.4 The claimant also relied on the manner in which the Action Plan was issued to her on 2 April 2007, as a breach of trust and confidence and we found that the circumstances in which it was issued (without notice, just before her annual leave and in an unsupportive way) were likely to damage trust and confidence without reasonable and proper cause.[38]Again, it is important to keep in mind the findings of the Tribunal which were not challenged. On 19 March it was noted that she was making errors in inputting data to the PNC. The data controller asked that Mrs Francis's supervision should be informed "so that appropriate advice be given". Mrs Francis was spoken to by Sgt Wilson sympathetically. There were no further errors between 19 March and 28 March. Nevertheless an Action Plan was issued to her just before she was to go on 12 days' annual leave.[39]Mr Bourne submits that the Tribunal ought to have held that there was reasonable and proper cause for presenting the Action Plan. He submits that the fact that it could have waited or been better handled is nothing to the point. He has taken us through the documents indicating that she was making errors in her work.[40]The Tribunal essentially made three criticisms of CPA in its reasoning. The first was that the action plan was issued without notice. We think that criticism is borne out not only by the facts which the Tribunal found, but also by the action plan document itself. The action plan document states that it "has been drawn up and agreed by all parties". That would be good practice. But it had not happened. The action plan was drawn up prior to the meeting with Mrs Francis, without any input from her, and was presented to her in its final form at the meeting. The second criticism is that it was presented to her just two hours before she went on leave for 12 days. This again we think is a justified criticism, especially bearing in mind that the action plan required improvement over 3 months. The third criticism is that it was issued to her without support. This is a finding of fact the Tribunal, having heard the evidence, was entitled to make.[41]We think the Tribunal was entitled to the view it took; it was not perverse to hold that the circumstances in which the Action Plan was issued were likely to damage trust and confidence without reasonable and proper cause. (5) The Capability Meeting on 3 rd September[42]The Tribunal's findings concerning this meeting were as follows:
"5.5 The circumstances in which the capability meeting were conducted on 3 rd September were intimidating and unsupportive, with all the microphones, the set up etc especially given the claimant's illness. Up to date medical evidence from occupational health, which ought to have been obtained, was not obtained. The claimant's requests for redeployment were dismissed without due consideration (an option which occupational health subsequently stated they would have supported to keep the claimant in employment). The respondent had failed to continue to seek , and act upon up to date medical advice when making important decisions about the claimant's future. They were not carefully assessing all the information available. Prior to the capability hearing they had decided they needed to obtain further medical information but decided to continue to go ahead without it, without any explanation. There was no reason given as to why they could not wait -given that the appointment was rescheduled for the 6 th September 2009."
[43]The background to this meeting was set out carefully by the Tribunal in paragraphs 2.29 to 2.40 and may be summarised as follows.[44]Mrs Francis was absent from work with doctor's certificates confirming work related stress. On 21 June CPA was advised by its occupational health service that she was not currently fit to attend a review meeting.[45]On 9 July her GP provided a report stating that it was expected that she would be incapable of work "for a matter of months rather than weeks". He said that she would require a minimum 6 month treatment with an anti depressant and at least 8 sessions with a counsellor. On 24 July CPA's medical adviser said that he was not anticipating her return to work in the next few months and that any return would only be when work place issues had been resolved. This was the latest occupational health advice prior to the capability meeting. An appointment had been arranged for 30 August; but was put back until 6 September. CPA did not wait to see what the up to date medical advice might be.[46]The meeting itself was a formal meeting, taking place after a formal letter indicating that a review might lead to action up to and including dismissal, lasting some 3 hours, tape recorded.[47]Mr Bourne submits that the Tribunal was perverse in its criticisms of CPA for holding this meeting. He submits that the Tribunal was not entitled to criticise CPA for the following principal reasons. The meeting was held at her home at her request. A proper reading of the transcript shows that the representatives of CPA sought to be supportive of her. There was evidence on which the Tribunal could have concluded that she was not telling the truth about refusal of redeployment. The issue for the Tribunal was whether CPA had reasonable and proper cause for conducting the meeting as it did. The Tribunal ought to have held that it had such cause.[48]We reject these submissions. We do not think the Tribunal's conclusions were perverse.[49]Indeed in one respect we wish to state emphatic agreement with the Tribunal's view. Where an employee is off work with significant work related stress it is of the greatest importance that an employer should conduct formal procedures in accordance with current and up to date medical advice from occupational health or other sources. At the Capability Meeting, which as we have said was a long and formal meeting, Mrs Francis was asked to go back over the events which, on her account, led to her stress related absence. The potential danger of such a meeting to a person in fragile psychiatric health ought to have been plain to CPA. Up to date medical advice as to whether Mrs Francis was fit to attend such a meeting was to our mind essential. We therefore find ourselves in complete agreement with the Tribunal on this point. We consider it quite impossible to say that the Tribunal's view was perverse.[50]We consider, further, that CPA indeed misunderstood the advice of its own occupational health adviser, as the Tribunal found. At the capability hearing CPA said that the adviser considered her to be "medically fit". This is not what the letter dated 24 July 2007 says – rather it refers to the danger of a continued adverse affect on her health. The letter says that the problem underlying her health was not medical; it does not say she is medically fit. To the contrary, she continued to be certified sick.[51]We further consider that the Tribunal was entitled to reach the conclusion that the meeting was intimidating and unsupportive. Mr Bourne took us through the lengthy transcript of the meeting in an attempt to persuade us of the opposite. But the transcript itself shows repeated questioning of Mrs Francis over a period of three hours. It is entirely plain at two points in the meeting that she is stressed; and the Tribunal was to our mind fully entitled to reach the conclusion it reached. (6) The Verbal Improvement Notice and Action Plan[52]The Tribunal said:
"5.5 … Instead the respondent had decided to issue the claimant with a verbal improvement notice, which required the claimant to return at the end of her current sick note (3/11/07) or face the next stage of the capability procedure i.e. a written warning. The respondent issued this warning knowing that the claimant was unlikely to be well enough to return by then and without the benefit of any up to date advice from Occupational Health. They could have sought advice as to whether the date set was realistic given the nature of her illness (workplace stress), and without any resolution of the workplace issues. They could have sought advice about redeployment given the vacancies available at the time and the claimant's skills. We concluded that the respondent acted in a way that was likely to damage trust and confidence without reasonable or proper cause. 5.6 The claimant resigned relying on the receipt of the written action plan and verbal improvement notice as the final straw. These documents confirmed the requirement to return to work no later than by 3/11/07 or face the likely consequence of further action if her attendance did not improve (see paragraph 2.43). Those documents (action plan and verbal improvement notice) were not innocuous and were capable of contributing to the series of earlier acts. They confirmed that the claimant has been issued with a warning and was under threat of further disciplinary action in circumstances where she was complaining of work related stress and was unlikely to be able to return unless those issues were resolved. The claimant had lost all confidence in the respondent's procedures, the grievance procedures (her experience in the Axford grievance, the Veitch grievance, the comments by Kathy Prudhom) and the capability procedures (failure to consider redeployment, issuing of warning and threat of further action in circumstances where she was complaining of work related stress and was unlikely to return etc). She had repeatedly asked the respondent to look at the emails of the PNC operators, which confirmed the bullying (exclusionary behaviour) was continuing, but they did not do so. They did not investigate any of the issues she had highlighted at the capability hearing. We reminded ourselves, that the last straw need not in itself be a breach of contract it need only contribute to the series of acts and we concluded that it did. The claimant was therefore constructively dismissed which breached the implied term of trust and confidence."
[53]Mr Bourne submits that the Tribunal's criticism of the issuing of the Verbal Improvement Notice and Action Plan was misplaced. He submits that since the sickness note expired on 3 November, and it was unknown whether she would be fit to return to work, CPA was entitled to issue the warning. He submits that redeployment could and would have been considered later in the process again; and that Mrs Francis appeared to be resistant to redeployment in any event.[54]We stress again that we can interfere with a Tribunal's conclusions only if they are perverse. There is no error of law in the Tribunal's reasoning; it was taken in particular to the leading cases on what may amount to a "last straw": London Borough of Waltham Forest v Omilaju [2005] IRLR 35 . We think the Tribunal was entitled to reach the conclusions it did. In particular we ourselves see real force in the Tribunal's view that CPA should have waited for their own up to date occupational health advice before taking the steps which they took. An employer is, of course, entitled to manage absence on grounds of ill health; but the highly specific action plan put forward without waiting for occupational health advice or obtaining an up to date GP's report is to our mind open to criticism. At all events, in our judgment the Tribunal's conclusion cannot be described as perverse. Credibility[55]A section of CPA's notice of appeal is directed to an attack on Mrs Francis's credibility. Mr Bourne submitted that the Tribunal ought to have formed an adverse view of Mrs Francis's capability. He took us to documents which, he said, showed that she must have lied on 1 May 2007 when she said she had been prescribed anti depressants but had decided not to take them. It is certainly true that the medical records first indicate she was prescribed anti depressants on 4 May, but there are earlier discussions on the subject of her depression. The Tribunal dealt with this issue in paragraph 2.32 of its reasons; it concluded that she did not deliberately lie on 1 May. It had the great advantage of seeing and hearing her give evidence, and we do not think its conclusion can be described as perverse, especially bearing in mind that she was on any view ill at the time and unwilling to start on anti-depressants. But, even more fundamentally, this was not to our mind a case which turned mainly on the credibility of Mrs Francis. Large parts of her case were accepted to be true or borne out by contemporaneous documents. Whether Mrs Francis would have been fairly dismissed[56]The Tribunal held:
"5.8 We considered whether the dismissal was fair for the reasons advanced by the respondent of capability and some other substantial reason. We were not satisfied that the claimant was fairly dismissed by reason of her lack of capability to attend work, the respondent failed to properly investigate or update itself on the medical position, or consider alternatives like the possibility of redeployment. We were also not satisfied that the respondent had shown that the claimant was fairly dismissed for some other substantial reason justifying dismissal, namely the claimant's lack of co-operation in facilitating that return, when up to date medical information had not been obtained on steps to facilitate her return and the alternatives put forward by the claimant were not given due consideration. We did not make any findings that would support the respondent's case that the claimant contributed to her dismissal and we were not satisfied, on the evidence we had before us that she would have been fairly dismissed within the period following the expiry of her sickness certificate on 3 November 2007. In those circumstances the claimant's claim of constructive unfair dismissal succeeds and will be listed for a remedy hearing."
[57]Mr Bourne criticises the reasoning in two respects.[58]Firstly, he criticises the Tribunal for failing to have regard to the fact that Mrs Francis was considering ill-health retirement. Irrespective of any question of fact which may arise in this respect, an ill-health retirement will be a voluntary act, not a dismissal.[59]Secondly, he criticises the Tribunal for not considering what the chances were in percentage terms that she would have been dismissed. We think, however, that all the Tribunal was doing in the last sentences of its reasons was to deal with a specific submission that Mrs Francis would have been dismissed fairly within the period following the expiry of her sickness certificate on 3 November: see paragraph 3.1 of the Tribunal's reasons, recording Mr Bourne's submission. Otherwise the Tribunal reserved all questions of remedy. We understand a remedies hearing has recently taken place. Overview[60]We have, as Mr Bourne submitted we should, stood back and looked at the overall picture. We have kept in mind Mr Bourne's occasional complaints that one matter or another was not properly pleaded: but we think that CPA was properly on notice of the case against it in all material respects. The Tribunal applied the law correctly, and it reached conclusions which individually and cumulatively were to our mind tenable and which cannot be described as perverse. Accordingly the appeal will be dismissed.