NATIONAL SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN v MR J DEAR [2010] UKEAT 0553_08_0701

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0553_08_0701Case No Appeal No. UKEAT/0553/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
NATIONAL SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDRENAPPELLANTMR J DEARRESPONDENT
Before
His Honour Judge SerotaDate 7 January 2010
[1]APPEARANCES For the Appellant MR M DUGGAN (of Counsel) Instructed by: Messrs Edwards Angell Palmer & Dodge Solicitors One Fetter Lane London EC4A 1JB For the Respondent MR S PERHAR (of Counsel) Instructed by: Messrs Rice-Jones & Smith Solicitors 7 Ely Place London EC1N 6RY SUMMARY UNFAIR DISMISSAL: Constructive dismissal The Claimant was employed by the Respondent in a position involving child protection. He failed to comply with procedures laid down by the Respondent and the Respondent therefore laid down certain performance requirements which the Employment Tribunal considered were put in place to ensure the Claimant's further compliance with proper procedures. In those circumstances the EAT reversed the finding of the majority of the Employment Tribunal that the imposition of those performance requirements amounted to a disciplinary sanction and constituted a repudiatory breach of contract. The EAT also allowed the Respondent's appeal against the finding by the majority of the Employment Tribunal that it was in repudiatory breach of contract by not complying strictly with a grievance procedure. HIS HONOUR JUDGE SEROTA QC Introduction This is an appeal by the Respondent firstly from a liability judgment of 13 October 2008 of the Employment Tribunal sitting at London Central (Employment Judge Bloom) after a four day hearing; the Reasons are of the same date. Issues as to contribution and remedy were left over to a further hearing. By a judgment dated 19 February 2009 the Claimant was awarded compensation in the sum of £65,715; the Employment Tribunal declined to make any reduction for contributory fault. The second appeal is against this judgment.[2]The appeal was referred to a full hearing on the "sift" by his HHJ Birtles on 23 December 2008. HHJ McMullen QC referred the issue of contribution only to a full hearing to be heard together with the appeal on liability. He disposed of issues relating to mitigation of loss under Rule 3(7)of the Employment Appeal Tribunal Rules of Procedure.[3]In the event we proceeded to deal with the appeal solely in relation to merits. Having regard to the decision on the appeal on liability the appeal on remedy falls away. Factual Background[4]We largely take the factual background from the decision of the Employment Tribunal.[5]The Respondent is a well known and respected charity primarily concerned with the welfare and protection of children. The Claimant is an experienced and well respected social worker (having practised since 1973). He was employed by the Respondent, latterly as a Children's Services Practitioner working some 18 hours per week spread over three days. We also should note that he was employed as a social worker by the London Borough of Sutton in its Emergency Team for some 30 hours per week.[6]The Claimant was employed by the Respondent from 4 July 1996 until 30 October 2007 when he resigned in circumstances which he claimed amounted to constructive dismissal.[7]The Respondent operates the National Children Protection Helpline, which is open and operates 24 hours per day, 7 days per week. It employs persons to man its helpline on three 8-hour shifts each day. The Claimant worked three of these shifts each week from premises at Weston House, 42 Curtain Road, London, EC2A 2MH.[8]The importance of accurate record keeping, especially in cases where documents might be required for use in court is well recognised by all social workers involved in child protection. Accurate record keeping is important not only for the protection of children but also for the protection of the Respondent and its employees in the event that there is any subsequent issue as to how a referral was treated, so sensitive are the referrals made to the Respondent.[9]The Employment Tribunal at paragraphs 4 and 5 of its judgment has carefully set out the Respondent's methods and procedures for the recording and logging of calls. Essentially there are two types of call. In the first the caller seeks general advice and no information is given that a particular child is at risk. These calls are referred to by the Respondent as "non-referrals" and the person taking the call is required to complete the Respondent's Form 19. The second category of call is more important. In cases where the caller gives information that a particular child is at risk, procedures are in place to ensure that these calls are fully registered to ensure protection for the child. The Children's Services Practitioner must record the call on a Form 18; the form is completed electronically after the call is taken. A paper copy is then to be given to the Duty Manager. At the same time the Children's Services Practitioner has the responsibility of notifying any relevant statutory authority as to the information received; he or she will normally notify the police and social services so that those agencies can take appropriate action. The Children's Services Practitioner must also ensure that the Duty Manager is made aware of the referral. Children's Services Practitioners are required to make entries in notebooks given to them for that purpose. These notebooks and the information they contain are often required for the giving of evidence in court. The content of these notebooks must comply with the Respondent's practices and standards and contain the following information in relation to each call(a) date(b) time of the start of the call(c) the time the calls ends(d) the identification case number(e) the central identification number(f) notes of the appropriate discussion(g) details of whether the call was referred or not either by way of Form 18 or Form 19(h) the Children's Services Practitioner must sign his note at the end of each entry.[10]The notebooks to which we have referred, are regularly inspected by Duty Managers, who on inspection will sign the entry in the notebook. Inspection should have been monthly but in practice appeared to have been bi-monthly, at least insofar as concerned the Claimant.[11]At the end of each shift the notebook would be placed in a box or a pigeonhole from whence it could be inspected by the Duty Manager.[12]There had been issues concerning the Claimant's record keeping and the legibility of his notes before the incident which took place on 23 August 2007. These had been raised during an appraisal in June 2007 when the importance of the legibility of his notebook was made clear to the Claimant. It was left that he would receive further training and feedback over the following six months.[13]On 23 August 2007 the Claimant received a call about a distressed child. He was informed that the child was heard telling his parents he wished to live with his grandfather. The caller had already notified the police. The Claimant said he would confirm matters with the police and that the call was being acted upon and he did so. He telephoned the caller back to offer her reassurance. He made a note in his book but the note was not dated, the entry was not signed, his handwriting was illegible. Moreover, the call was not recorded as being in respect of a "child at risk" on Form 18. The Claimant did not believe this was necessary because the police were taking action. The Respondent, however, regarded recording on Form 18 as essential because the child, subject matter of the call, had been identified as being at risk. Indeed, throughout the process that followed the Claimant continued to deny that in the circumstances of the case he was required to complete a Form 18. He persisted in that denial throughout the disciplinary process and only accepted for the first time when he was being cross examined before the Employment Tribunal, and with hindsight, that he should have completed a Form 18 and that his failure to insert a date in his notebook and sign the entry was not compliant with the Respondent's procedures. The Claimant in fact completed a Form 19.[14]We now turn to consider the Respondent's disciplinary process. There is an informal process for minor issues. The more significant issues are dealt with under a four stage process. Stage 1 of the process can lead to a formal recorded oral warning which remains on the employee's file, usually for six months. The Claimant conceded that this procedure had been complied with. There is no right of appeal against a Stage 1 determination but an employee can register a "note of dissension" which is also placed on his personnel file.[15]It is convenient to note at this stage that the Respondent's grievance procedure has a clause referred to as "status quo", when in the event of any difference arising which cannot immediately be resolved whatever practice or agreement existed prior to the grievance should continue, pending settlement, or until the agreed procedure had been exhausted.[16]We continue with the events of 23 August 2007. The Respondent learnt that the Claimant had dealt with the call and contacted the police but had failed to comply with the Form 18 procedure. The issue came to the attention of the Claimant's line manager, Miss Redding (Children's Services Manager). She met with the Claimant on 31 August 2007. When she asked the Claimant about the position he maintained that the Form 18 procedure was not necessary because he had already contacted the police. He also confirmed that he had not raised the call with his Duty Manager (Miss Deans). Miss Deans was apparently out of the office at the time the call was received but the Claimant conceded he could have raised the matter before the shift ended or called another Duty Manager at another call centre. The Claimant was instructed to complete the Form 19 and he did.[17]Miss Redding investigated and produced an investigatory report dated 24 September 2007. She noted that the Claimant had failed to consult the Duty Line Manager, had failed to complete Form 18 and his notes did not meet the required standards. The entry had neither been dated nor signed off. She recommended that the matter should be dealt with by a Stage 1 disciplinary hearing with the possible sanction of a recorded oral warning.[18]On 27 September 2007 Miss Redding gave notice to the Claimant alleging that the Claimant had failed to comply with the Respondent's procedures and had taken a call which was managed outside the guidance contained in the Helpline practice manual. The Claimant was informed that if the allegations were found to be correct the sanction that would be recorded would be an oral warning. The disciplinary hearing was postponed by reason that the Claimant had pre-booked a holiday and it ultimately took place on 18 October 2007. During the course of the hearing the Claimant accepted that he should have informed the Duty Manager of the call but he continued to dispute the necessity of completing a Form 18 and he maintained that the bringing of disciplinary proceedings was disproportionate to the incident.[19]On 25 October Miss Redding concluded that the Claimant's failure to follow correct procedures merited the disciplinary sanction of a recorded oral warning and wrote an email to the Claimant to that effect. The warning was to be on his file for six months. The Employment Tribunal found that Miss Redding was sufficiently concerned over the Claimant's failure to correctly record his notebook entries that she imposed two specific performance requirements upon him(a) all non-referral calls (Form 19) were to be signed off by a Duty Manager(b) at the end of each day the Duty Manager would sign the Claimant's notebook to confirm legibility, that it was clear and accurate as well as recording the necessary information such as the date and times of the calls.[20]The performance requirements were described by the Employment Tribunal as being as effectively:
"Written management instructions for the Claimant."
[21]The Employment Tribunal found at paragraph 15 that Miss Redding imposed the performance requirements "in order to ensure that the Claimant complied in the future with established policy and procedures."[22]The Claimant was informed of his right to register a note of dissension.[23]The Claimant opened his email on 28 October, a Sunday, and was clearly incensed. He wrote to Miss Abbotts, the Deputy Director and Miss Redding's superior, and also to her superior Mr Cameron, the Head of the Helpline at Weston House. Mr Cameron reported to Christine Renauf, the Divisional Director in charge of the Helpline. This was an informal grievance under the Respondent's grievance procedure. The Claimant stated:
"I accept the oral warning and I give you a formal undertaking that my future practice will be in accordance with prevailing helpline policy, procedures and protocols but I would like to challenge the imposition of the two requirements which (Miss Redding) believes necessary to ensure (my) future compliance with established policy procedures."
[24]Miss Abbott replied to the Claimant's informal grievance on 29 October 2007. She rejected his allegations and took the view that the appropriate measures were necessary. She went on to say that such matters should be discussed during the course of the Claimant's day to day management and that in particular they should form the subject of a review meeting between the Claimant and Miss Redding scheduled to take place on 15 November 2007.[25]Miss Abbott (having taken advice from the Human Resources Department) regarded the Claimant's letter as a desire to review an oral warning and did not regard his letter as an informal grievance although it was clearly headed thus. Accordingly the Claimant was not offered a meeting to discuss the grievance in accordance with the grievance procedure. The Employment Tribunal has found, however, that this was not raised by the Claimant in his later grievance, in his resignation letter nor in any claim to the Employment Tribunal. In any event, the Claimant was able to proceed with his grievance under the formal stage and that would appear to have negated that omission.[26]The Claimant was still not satisfied and on 30 October 2007 submitted a formal grievance and said he was not prepared to work unless the two practice requirements were withdrawn. He handed this grievance to Miss Renauf on 30 October when he attended for work and confirmed that he would not work subject to the two practice requirements. Miss Renauf arranged for the Duty Manager, Miss Deans, to meet with the Claimant. He handed her the written memorandum and said that the two practice requirements were unreasonable and unacceptable to him and he would not resume normal duties pending the decision of the formal grievance appeal against Miss Redding's decision.[27]Shortly thereafter, the Claimant met Mr Cameron, who was accompanied by a member of the Human Resources Department. He confirmed that he was unwilling to work subject to performance requirements and that he was being forced to resign. He said he would resign forthwith or give four weeks notice if that was preferred. Mr Cameron asked him to reconsider the matter but the Claimant was unwilling. Mr Cameron was unwilling to suspend the Claimant pending a formal grievance hearing; the Claimant bade farewell to other members of the staff and left.[28]On 31 October 2007 the Claimant wrote a letter of resignation saying that the sanction of the oral warning and two practice requirements was "unreasonable and absolutely intolerable" and the insistence of Mr Cameron that the practice requirements should continue pending the grievance amounted to constructive dismissal.[29]The grievance was subsequently dealt with by Mr Cameron and rejected by him on 30 November 2007. The Claimant was informed of his right of appeal but did not take it up. We should point out that after the hearing with Miss Redding the Claimant accepted that his failure to complete the Form 18 documentation merited an oral warning but he took strong objection to the two performance requirements contained with Miss Redding's communication of 25 October 2007. The Employment Tribunal had this to say "16. …In fact he stated those two requirements and the impact which the Claimant stated it would have upon him was the reason he resigned his employment. He regarded them as being an 'act of humiliation'. In view of his skill and experience he went on to say in that document that the practice requirements were "infantasising". The decision of the Employment Tribunal[30]We have already referred to the factual background as found by the Employment Tribunal. The Employment Tribunal directed itself as to the law of constructive dismissal by reference to the well known decision of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 . It also referred to subsequent authorities, including in particular Malik v BCCI [1997] IRLR 462 , in relation to breach of the implied duty of trust and confidence and the decision of Abbey National v Fairbrother [2000] IRLR 320 in relation to undermining the employee's trust and confidence. "25. …We have reminded ourselves that the test of whether the employee's trust and confidence has been undermined is an objective one. The conduct complained of when looked at in this way must be likely to destroy or seriously damage the degree of trust and confidence between the parties. All the circumstances of the case must be looked at. Any disciplinary sanction which is grossly out of proportion to the offence can amount to a repudiation of the contract. The conduct of the grievance procedure must be taken as a whole in order to determine whether or not it was reasonably conducted. Only if it has been conducted in a manner in which no reasonable employer would have conducted it can it be said that the employer did not have reasonable and proper cause for his conduct."[31]The Employment Tribunal then went on to give its conclusions. Unhappily the Employment Judge, Mr Bloom did not agree with his two lay members. All members of the Employment Tribunal were in agreement that the Claimant's acts of 23 August merited disciplinary action and an oral warning. Further, the disciplinary sanction was not grossly out of proportion to his acts and omissions. The first issue upon which the members of the Employment Tribunal diverged was whether the imposition of the practice requirements constituted an additional disciplinary sanction and whether the imposition of those requirements was reasonable in response to the events of 23 August 2007. We must confess that we have some difficulty in understanding the reasoning of the majority. The majority concluded that the practice requirements were put in place to ensure the Claimant's further compliance with the established Helpline policy because Miss Redding was concerned that both during the investigatory meeting and at the subsequent disciplinary hearing, the Claimant refused to accept that he had not dealt with the call on 23 August 2007 appropriately. She was also concerned that the Claimant was not willing to accept responsibility and that there was a possibility that the Claimant might continue to deal with similar calls in the way that he had done on 23 August 2007. It was her overriding responsibility to ensure that Helpline procedures were followed to the letter so that both the Respondent and children were protected.[32]Having gone on to find the practice requirements were imposed for perfectly proper reasons, the majority of the Employment Tribunal criticised Miss Redding for not allowing the Claimant to comment, agree or disagree with her views that the minutes of the disciplinary meeting were "disproportionate" and "did not reflect a balance".[33]We have immense difficulty in understanding how on those findings it is possible to regard Miss Redding's actions as being in any sense a breach of contract, amounting to punishment rather than a legitimate management instruction, let alone amounting to a significant breach going to the root of the contract of employment or demonstrating that the Respondent no longer intended to be bound by one of the contract's essential terms.[34]The Employment Judge concluded that the practice requirements were not a disciplinary sanction and were not imposed as any form of punishment but were designed and intended to ensure the Claimant did not, for whatever reason, breach any of the requirements or standards of the Respondent's practice manual thereby ensuring at all times the safety of children. He concluded that this requirement must be paramount at all times. Mr Bloom concluded that the practice requirements were a reasonable response to the events of 23 August 2007, and even if they did amount to some form of disciplinary sanction he did not believe the imposition of them was grossly out of proportion to the events of 23 August 2007.[35]The Employment Tribunal then went on to consider the failure of Miss Abbotts and the Respondent to deal with the Claimant's request for a meeting to be held under the informal stage of the grievance procedure. It was common ground that the Respondent did not revert to the status quo pending the conclusion of the grievance. The Employment Tribunal went on to consider whether those facts either on their own or when taken into account with other facts in the case amounted to something likely to destroy or seriously damage the proper degree of trust between the parties. Again there was a divergence of views between the Employment Judge and his colleagues. The majority of the Tribunal concluded that the failure to recognise the informal grievance as such and not to maintain the status quo were serious enough in their own right and taken in the round to amount to a further repudiatory breach. The majority considered that the grievance procedure had an additional level because the Claimant had no right of appeal under the disciplinary procedure and the Respondent's failure to accept the grievance had the ultimate effect of denying the Claimant an opportunity to appeal to a senior member of staff not previously involved in the grievance. At the formal stage of the grievance procedure the failure of the Respondent to deal with the informal stage had the effect of undermining the Claimant's confidence in the process notwithstanding when the Claimant presented a formal grievance the status quo clause was still not enacted. "30. …The majority of the Tribunal therefore find that the formal process could not have remedied the defects of the informal stage. Looking at the grievance procedure in the round they find there was a fundamental breach of contract by the Respondent."[36]Again, the Employment Judge, looking at the matter as a whole found there was no fundamental breach. Although there was a failure to hear the Claimant's informal grievance the conduct of the grievance procedure as a whole permitted the Claimant to present a formal grievance which the Respondent was willing to hear. The Claimant chose to resign before the grievance process could be undertaken. The Respondent's failure to initially recognise the informal grievance was capable of rectification in the formal stage of the procedure. Further, in the circumstances of the case the Respondent's failure to maintain the status quo prior to the imposition of the practice requirements was reasonable, in order to ensure that the relevant procedures were followed, to protect not only the Claimant and the Respondent, but ultimately any child to whom they may have responsibility. The majority, on the other hand believed that the refusal to lift the practice requirements and therefore maintain the status quo amounted to a fundamental or repudiatory breach of contract. The Employment Judge again dissented on the basis that the action of the Respondent in refusing to go back to the pre-practice requirement position was not in his opinion one which no reasonable employer in all the circumstances should not have taken. The Claimant chose to resign within two hours of submitting his formal grievance. In the Employment Judge's view it was right and proper that the merits of the Claimant's grievances should have been discussed in the formal stage of the grievance process. By resigning at the point he did the Claimant did not give the Respondent that opportunity. Grounds of Appeal and Respondent's Submissions[37]Mr Duggan, who appeared on behalf of the Respondent, submitted that the Employment Tribunal had correctly set out the law but the majority had failed to apply it correctly in the following respects(a) identifying the conduct of the employer complained of(b) enquiring whether the employer had reasonable and proper cause for that conduct.[38]If the Respondent had reasonable and proper cause for acting as it did that was an end of the case. It is only if the employer did not have reasonable and proper cause for acting as it did was it necessary to consider whether that conduct was likely to destroy or seriously damage the relationship of trust.[39]Mr Duggan submitted that the question as to whether the employer had reasonable and proper cause for acting as it did meant asking whether the Respondent had acted in a way in which the Employment Tribunal considered a reasonable employer might have acted. It was not for the Employment Tribunal to substitute its views for those of the employer. What had happened in this case was that the majority had substituted its views for those of the Respondent.[40]The majority was wrong in holding that the performance requirements were a sanction when on the findings of the Employment Tribunal they were put in place to secure compliance with proper procedures. The majority had mischaracterised the performance requirements as being a disciplinary sanction when they were designed not to punish but rather to secure compliance.[41]The majority was also wrong to find that failure to maintain the status quo was repudiatory. It was a matter for the employer and a reasonable employer might also consider it appropriate not to maintain the status quo. There was nothing wrong with the informal appeal process and it was difficult to see how there could be a repudiatory breach of contract in relation to a grievance procedure which was only two hours old.[42]Mr Duggan drew our attention to the decision in London Ambulance Services NHS Trust v Small [2009] EWCA Civ 220 "43. It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question - whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal."[43]The Employment Tribunal, it was submitted, has fallen into the trap referred to by Mummery LJ in this passage. Claimant's Submissions[44]Mr Perhar, who appeared on behalf of the Claimant, submitted that the Employment Tribunal correctly applied the law. If the reasonable range of responses test was relevant we should prefer the decision of Elias J in Claridge v Daler Rowney [2008] IRLR 672 to that of Lady Smith in Abbey National v Fairbrother [2000] IRLR 320 .[45]However, in this case the majority of the Employment Tribunal was entitled to consider on the facts that the practice requirements were a disciplinary sanction and the challenge raised by the Respondent was in effect raising an issue of perversity. This was not simply a question of a mislabelling by the Employment Tribunal. The Employment Tribunal did not substitute its own decision for that of the Respondent but found that there had been a failure to recognise the grievance and also the failure to maintain the status quo were unreasonable and amounted to a repudiatory breach. Mr Perhar reminded us of the very high standard required for perversity appeals. Discussions & Conclusions[46]We remind ourselves that we are concerned solely with issues of law and not issues of fact. However, the correct application of the law to the facts is a matter of law. In this we would include the categorisation of a performance requirement as a sanction or punishment when the facts show that it was not capable of amounting to a punishment but was a form of monitoring designed to ensure compliance with the Respondent's requirements.[47]We also remind ourselves of the very high standard required in perversity appeals; the law is set out in Yeboah v Crofton [2002] IRLR 634 and we remind ourselves in particular of the well known passage at paragraph 93 in the judgement of Mummery LJ:
"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', British Telecommunications PLC –v- Sheridan [1990] IRLR 27 at para 34."
[48]I have had the benefit of sitting with two colleagues with considerable industrial experience. Both of my colleagues have pointed out that where there has been a failure to follow proper procedures it is normal for an employer to require monitoring to secure compliance with those procedures. That monitoring is not regarded as a punishment or as a sanction but as a legitimate management instruction. In fields of employment involving protection of the public it is of considerable importance that where there has been a failure to follow appropriate and reasonable procedures some form of monitoring is put in place in order to secure compliance. In paragraphs 24 and 25 of its decision the Employment Tribunal may have stated the law in relation to constructive dismissal in terms too favourable to the Respondent rather than the Claimant, in relation to the issue as to whether and at what point a reasonable range of responses test has any relevance in cases of unfair constructive dismissal.[49]The classical definition of constructive dismissal is still that set out by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1977] ICR 221 page 226. "If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract."[50]It is important to bear in mind that the Court of Appeal in this case rejected the suggestion that unreasonable conduct alone on the part of an employer, did not as such, permit an employee to maintain he had been constructively dismissed. He had to show a repudiatory breach of contract.[51]In this particular case the Claimant maintains that his constructive dismissal arose from the breach by the Respondent of the implied term of trust and confidence. As explained by the House of Lords in Malik v Bank of Credit & Commerce [1997] IRLR 462 every contract of employment contains an implied term to the effect that the employer would not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.[52]In cases where constructive dismissal is relied upon by reason of a breach of the term of implied trust and confidence we would accept and follow guidance given by Lady Smith in Abbey National plc v Fairbrother [2007] IRLR 320 as to the three questions needing to be addressed (see paragraph 30):
"(1) What was the conduct complained of? (2) Did the employer have reasonable and proper cause for that conduct? (3) If not, was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?"
[53]The issue of the relevance of a reasonable band of responses test has been addressed, we believe definitively, by HHJ Judge Peter Clark in Bournemouth University v Buckland UKEAT/0492/08/DA. This decision was handed down after we had reserved our judgment and we have not sought the parties' comments upon it because it does not affect our decision.[54]Judge Clark noted that there were three stages in what he described as the statutory road map for proving unfair dismissal. "26.(1) Has the employee shown that he has been dismissed by his employer? He may do so in one of only three ways (s.95(1)ERA); (a) actual dismissal by the employer (b) expiry of a limited-term (formerly fixed-term) contract or (c) constructive dismissal, that is termination of the contract of employment by the employee in circumstances where he is entitled to do so by reason of his employer's (repudiatory) conduct.(2) If, but only if, dismissal is shown by the employee, in any of those three ways, it is then for the employer to show a potentially fair reason for dismissal (s.98(1) and (2) ERA).(3) If a potentially fair reason is shown by the employer it is then for the Employment Tribunal to determine, the burden of proof being neutral, whether dismissal for that reason was fair or unfair (S.98(4)). Did the employer act reasonably or unreasonably in treating that reason as a sufficient reason for dismissal?"[55]In the earlier cases referred to in the Bournemouth University case it had been suggested that it might be appropriate to have regard to the reasonable range of responses when considering the first two stages, although there was some difference as to what stage. In Claridge Elias J made it clear that the test for determining whether there had been a repudiatory breach of contract sufficient to entitle the employee to leave and claim constructive dismissal was objective and to be determined by the Tribunal itself, referring to Pedersen v The Camden London Borough Council [1981] ICR 674. All the earlier authorities were reviewed by Judge Clark in the Bournemouth University case and having considered these cases the Employment Appeal Tribunal has made clear that the test for determining constructive dismissal remains that set out by Lord Denning in Western Excavating v Sharp and that the issue of the range of reasonable responses is relevant only to the third stage of the exercise, that is, has a potentially fair reason been shown by the employer to determine whether the reason for dismissal was fair or unfair and whether the employer acted reasonably or unreasonably in treating that reason as sufficient reason for dismissal.[56]It is not to say, however, that the reasonableness of the employer's conduct is irrelevant at earlier stages. Indeed it is very difficult to see how, if an employer acts reasonably, his behaviour can be said to give rise to a repudiatory breach of contract.[57]In our opinion the decision of the Employment Tribunal cannot stand whether or not one needs at any point to consider the need for a reasonable range of responses. The Employment Tribunal's own findings clearly show that the performance requirements were not intended to be disciplinary or any sanction in the sense of a punishment. On the majority's own findings the performance requirements were designed to secure compliance with the Respondent's procedures for the most important reason of child protection. If we had to go further we would say that no reasonable employment tribunal could have concluded that the Respondent did not have reasonable grounds for imposing and maintaining the performance requirements. That would be the end of the matter; but even if we are wrong about that, on the Employment Tribunal's findings, no Employment Tribunal could have concluded that the Respondent's conduct, viewed objectively as opposed to from the Claimant's subjective viewpoint, was calculated to destroy or seriously damage the employer employee relationship of trust and confidence.[58]We know that each of us separately when we read the papers felt that there was something manifestly wrong with this decision. That, of course, is relevant to consideration of whether a reasonable employment tribunal could have concluded as the majority did.[59]We now turn to the issue of the grievance. As it seems to us, the Claimant cannot rely upon a matter as destroying trust and confidence when as found by the Employment Tribunal this was not a matter which he sought to complain about either in his grievance or in his resignation letter or in his claim to the Employment Tribunal. This is so even apart from the fact that the Claimant's ability to proceed to the formal stage of the grievance would in our opinion have negated any omission. It is difficult to see how something of which no complaint was made, either in the claimant's grievance or resignation letter, can reasonably be regarded as having destroyed trust and confidence.[60]We now turn to consider the failure to maintain the status quo. Again on the findings of the Employment Tribunal, it is difficult to see how the Employment Tribunal could have found that the Respondent had no reasonable and proper cause to act as it did. On the findings it made no reasonable employment tribunal could have concluded otherwise than that it did have proper and reasonable cause. . If one were to view the findings objectively as opposed to from the Claimant's subjective standpoint, we cannot see that the Respondent did anything in this regard that could properly be regarded as calculated to destroy or seriously damage the employer-employee relationship of trust and confidence. We do not consider that the Respondent was in breach of contract, let alone in repudiatory breach. We also have serious doubts as to whether the agreement to maintain the status quo could be regarded as an essential term of the contract of employment.[61]The Employment Tribunal found that the whole purpose of recording was for purposes of child protection. The monitoring, as we have already said, should be regarded as a means to secure compliance with proper procedures so that monitoring was not to be regarded as a punishment or a sanction but as a legitimate management instruction. There was no suggestion to the contrary in this case. It is necessary to examine the acts of the Respondent against the background where the Claimant denied up until the time he came to be cross examined that he was required to treat a call, such as he received on 23 July 2007, that identified a child as possibly being at risk, as a call to be treated as a referral requiring the completion of a Form 18. He also conceded that he had not completed the form appropriately, he had not dated the form and not signed it off, so there was a risk he might deal with similar cases in the same way. It is difficult to see how insistence on monitoring in those circumstances could be regarded as a repudiatory breach of contract as opposed to a proper response to a child protection issue. It is regrettable that the majority does not explain why it regarded the performance requirements as amounting to a repudiatory breach or what the Respondent should have done in the circumstances to ensure compliance with what the majority itself accepted were proper and appropriate requirements. Indeed it seems to us, as Mr Duggan has submitted, that the majority have fallen into the trap described in the London Ambulance case.[62]In the circumstances, this appeal must be allowed for the reasons we have given, we wish to express our gratitude to Counsel for their helpful submissions.