Watson v University Of Strathclyde (Unfair Dismissal : Constructive dismissal) [2011] UKEAT 0021_10_0102

EAT
Watson v University Of Strathclyde (Unfair Dismissal : Constructive dismissal)
[2011] UKEAT 0021_10_0102 · 2011-02-01
[1]This is an employee’s appeal against the judgment of an Employment Tribunal sitting at Glasgow, registered on 11 February 2009, insofar as it dismissed the Claimant’s claim that she had been unfairly constructively dismissed when she resigned from her employment on 30 October 2007.[2]The Claimant was represented by Mr Johnston, Employment Consultant before the Employment Tribunal and represented herself before us. The Respondent was represented by Mr B Cameron, solicitor, before the Employment Tribunal and by Ms L Davis before us.[3]There were several aspects to the Claimant’s complaint but the appeal was confined to the issue of whether or not she was unfairly dismissed. Background[4]The Claimant was employed by the Respondent, from 1 December 1985, as a publications officer in the university’s Marketing and Communications office. At the relevant time, Ms Hendry was her line manager. Following a review of marketing, Mr Adam Taylor was appointed as Director of Marketing and Communications in about July 2004. The post of Secretary to the university was held by Dr West, who had been in post for many years. It was a key post – the Tribunal explained:
“501……There was no dispute he held a powerful position within the University: he was Secretary to the University and had held that post for some time.”
[5]The decision to appoint Mr Taylor was taken by an Appointing Committee of which Dr West was a member.[6]Put shortly, Mr Taylor upset the Claimant in various respects. For instance, he conducted her appraisal meeting on 27 January 2005; she regarded it as cursory and superficial and found his use of language to be unprofessional and inappropriate. He called a meeting of the Claimant’s team on 3 May 2005 at which she found his conduct to be intimidating and threatening and when she met with him afterwards to talk about it he referred to it as being simply “a paddy” which she should forget about. She felt that Mr Taylor was violent and aggressive. She felt that he had tried to undermine her regarding a matter concerning the publication of the university diary, for which the Claimant was responsible – the source of the problem seems to have been that Dr West had indicated to Mr Taylor that he was not happy that the staff list did not include qualifications.[7]In September 2005, Mr Taylor was convicted of a breach of peace. The conduct in question was that he had been discharging an air gun in Kelvingrove Park at 3am one morning. The Claimant was on leave at the time and learnt about the incident from a work colleague who texted her, saying:
“you must be psychic, thug boss in court on gun charge.”
[8]Mr Taylor went to see Dr West prior to his conviction to advise him what had happened and to offer his resignation. The Tribunal make the following findings in fact regarding what happened after that:
“50. Dr West obtained information from Mr Taylor about the incident and thereafter discussed it with the Principal, Professor Andrew Hamnett. The Principal had taken the position that if what the claimant had told them was the extent of the incident, then he should not be required to resign. The Principal agreed a statement to be read out (to the Press) by Dr West. Dr West had, in giving the statement, spoken in his role as spokesperson for the University.”
[9]The statement which Dr West made to the press was to the effect that the conviction was a personal matter and the university was of the view that it did not impact on his professional life; in particular, it did not impact on his continued employment. The statement was made after Mr Taylor was convicted but before he was sentenced; he was sentenced on 11 October 2005 by the imposition of a fine of £750. Thus, at the time the statement was made, the Respondent did not know what would occur or what would be said at the sentencing diet nor did they know whether or not Mr Taylor would receive a custodial sentence. All they knew was that he had been convicted of an offence involving him discharging a firearm in a public place and that they had heard whatever his explanation was of how the offence came to happen. As for the latter, they accepted what Mr Taylor told them:
“53. ….Dr West and the Principal had accepted at face value Mr Taylor’s explanation about what had happened….”
[10]No risk assessment took place. Dr West and the Principal decided whether or not Mr Taylor’s resignation should be accepted solely on the basis of what he told them:
“54……….there had not been a written or formal risk assessment: however Mr Taylor had offered his resignation and at that time Dr West and the Principal had assessed whether it should be accepted.”
[11]The Tribunal also made the following findings in fact:
“55. ….Dr West had also spoken to the Managers to confirm the University’s view that this was a personal matter which did not impact on Mr Taylor’s professional life. 58. Ms Hendry accepted she had been shocked and professionally concerned when she learned of the conviction. Ms Hendry agreed other members of the staff had also expressed similar professional concerns and recalled the claimant’s concern had been “on a par” with this.”
[12]At paragraph 219, the Tribunal refers to employees being “shocked and upset”. “213. ….we found as a matter of fact that the decision to allow Mr Taylor to continue in employment was the decision of the Principal and Dr West. There was no evidence to suggest this was anything other than the normal decision - making process in such matters, and nothing to suggest Dr West acted outwith his normal remit in such matters, or that he unduly influenced Professor Hamnett.218. ….Mr Taylor informed Dr West of the situation prior to his conviction; Dr West informed the Principal of the situation and the decision was taken that there was no requirement to seek Mr Taylor’s resignation.219. There was no dispute regarding the fact that the respondent did not carry out a formal risk assessment: they were satisfied that the likelihood of the situation happening again was negligible….”[13]There is no explanation of how the Respondent reached any conclusion as to the level of risk without having carried out a risk assessment. “638. …we found as a matter of fact that Dr West did not solely take the decision to allow Mr Taylor to continue in employment following the gun conviction. The decision was taken by Dr West and the Principal Professor Hamnett and there was no evidence to suggest that this was anything other than the usual decision making process at this level within the University.”[14]The findings of the Tribunal are clear. There was a history of concern on the part of the Claimant about Mr Taylor’s conduct both towards her and generally. That concern was heightened when the gun incident – an incident which was, on any view, alarming - came to light; at that time, the Claimant was not the only person who had serious “professional concerns” about him at that time. Mr Taylor offered to resign. The decision not to accept his offer was taken jointly by Dr West and Professor Hamnett. Thereafter, Dr West made a public statement on behalf of the Respondent clearly expressing support for Mr Taylor and confirming that his conviction was not viewed as having any detrimental effect on his professional standing. No risk assessment was carried out. Dr West thus openly supported Mr Taylor both as regards his retaining his employment and as regards his conviction being treated as a private matter.[15]Dr West also had responsibility for monitoring Mr Taylor’s performance between his conviction and the date of his sentence. Further, it was his views about what should be included in the University diary that gave rise to Mr Taylor challenging the Claimant on that matter and causing her to feel she was being undermined.[16]Difficulties in the relationship between the Claimant and Mr Taylor continued. The Claimant went on leave on 19 December 2005 and was, thereafter, on sick leave. On 22 May 2006, she presented a grievance to the Respondent. At the heart of her grievance was a complaint that since Mr Taylor’s appointment there had been a change of style which included inappropriate behaviour by him and autocratic management with a consequent breakdown of trust and confidence. The grievance included a complaint relating to Mr Taylor’s conviction and his behaviour at and around that time.[17]The Claimant’s grievance was considered by the Respondent’s HR Manager, Ms Chisholm, who, having done so, was to report to Dr West. Had the grievance been upheld by Ms Chisholm it would have been for him to decide what action to take, including whether or not to commence disciplinary proceedings against Mr Taylor. She did not uphold the grievance – she did not, however, comment at all on the part of it that related to the Claimant’s concerns arising from Mr Taylor’s conviction. She did not think it appropriate for her to comment since it was a matter for senior officers of the Respondent.[18]The Claimant was critical of Ms Chisholm’s investigation. Her agents, Johnston Consulting, wrote to Professor Hamnett by letter dated 4 September 2006, setting out a detailed criticism of the grievance findings. One of those criticisms was that, according to the Claimant’s initial understanding, it was intended that Dr West would decide whether or not her grievance should be upheld (albeit, as was subsequently clarified that the decision was in fact made by Ms Chisholm) and in an appendix to the letter, the following statement was made:
“In any event, from the outset Dr West should not have been appointed to make the decision as he had a conflict of interests in relation to Mr Taylor as he appointed Mr Taylor. Also, he had already demonstrated his support for Mr Taylor’s position in relation to his conviction.”
[19]The letter also included the observation that, contrary to the statutory procedures then in force, the Claimant had not been offered a right of appeal. She was subsequently advised that she did have a right of appeal. The Claimant was advised that an appeal hearing would take place on 30 October 2007. By letter dated 22 October 2007, she was advised that the appeal panel would comprise Dr G Wilson (Lay Member of Court); Professor K Miller, Pro Vice Principal and Dr West. By letter to the Respondent dated 29 October 2007, the Claimant’s agent stated that she would not be attending the hearing. He advised that she was gravely concerned that Dr West had been selected to sit on the appeal panel because she considered that he had a conflict of interest in her case – she believed that Dr West and a number of his decisions and his relationship with Mr Taylor were core issues in her grievance. It was explained that she felt intimidated at the prospect of directly confronting Dr West about these issues. The letter was received by the Respondent prior to the appeal hearing.[20]None of the Tribunal’s findings in fact indicate that Dr West was ever made aware of the Claimant having expressed the above concerns that he had a conflict of interest when it came his having any involvement in her grievance. There is no finding that Dr West was ever asked what his response was to the Claimant’s assertion that he had a conflict of interest. It is, accordingly, not known whether, had he been required to address the issue himself, he would have accepted either that he did have such a conflict or that he could see that, looking at matters objectively, it might reasonably be thought that he did.[21]The appeal hearing was convened without the Claimant. At the outset and in the absence of Dr West, Dr Wilson and Professor Miller considered the Claimant’s objection to Dr West’s inclusion in the appeal panel. The Tribunal found:
“170. The matter was considered by Dr Wilson and Professor Miller in the absence of Dr West. They were satisfied there was no conflict of interest in the circumstances of the case.” and “640. …..There was no evidence to suggest that Dr West’s appointment to the appeal panel was anything other than the norm. The claimant’s concern that there was a conflict of interest was considered by the two other panel members independently of Dr West, and they concluded that there was no conflict of interest.”
[22]There are no findings to explain what the “circumstances” were that Dr Wilson and Professor Miller took into account or how they reached the view that there was no conflict of interest.[23]Dr West accordingly, joined the remainder of the appeal panel, it considered the appeal and rejected it. Some six weeks later they advised the Claimant of the outcome of her appeal. They do not appear ever to have responded to the concerns about Dr West’s inclusion in the panel that were raised in the Claimant’s letter of 29 October 2007 whether in their written decision of the appeal panel or otherwise.[24]When the Claimant learnt that the Respondent had decided to include Dr West in the panel to hear the appeal against her grievance, she wrote resigning from her employment. Her letter of resignation was dated 30 October 2007. In it she explained that she felt that she had been victimised by a series of events dating back to the autumn of 2004 when she first began to feel uncomfortable about Mr Taylor. She states:
“This victimisation intensified after I had the courage to raise legitimate complaints about the cover-up of the issues surrounding Adam Taylor’s personality and management style and his gun conviction. This includes Dr Peter West’s public support of Adam Taylor in the press, and the University’s failure to conduct a risk assessment.” and “The decision to appoint Dr Peter West to the panel to hear the appeal against my grievance is the final straw. Dr West has clear conflicts of interest in this case, as notified in a lengthy letter to yourself from my representative dated 4 September 2006, and in other related paperwork. The decision to have him sit in judgment of a case in which he has such close involvement makes a mockery of the whole process and seems to be a tactic to intimidate me. It is cynical and shows the contempt in which the University holds employees who attempt to expose wrongdoing.”
We observe that Mr Cameron, who represented the Respondent before the Tribunal, acknowledged, in submission, that with the benefit of hindsight, it may have been more sensible to exclude Dr West from the appeal panel so as to remove any question of partiality (see: Tribunal’s judgment at paragraph 416). The Tribunal’s Reasoning[25]The Tribunal did not accept that the inclusion of Dr West in the appeal panel constituted a fundamental breach of contract. The reason for that was they found the Respondent’s conclusion that Dr West did not have an actual conflict of interest to have been reasonable. That was because the inclusion of Dr West in the panel was not anything other than “the norm” and the question of whether or not he was in fact biased was considered independently by the two other members of the panel (para 640). Whilst, as we have observed, there are no findings as to the basis on which Professor Miller and Mr Wilson decided that Dr West did not have a conflict of interest, the Tribunal’s conclusion that there was no such conflict seems to encapsulated in their findings in fact at paragraph 173:
“We found as a matter of fact, that (a) the decision to appoint Mr Taylor was taken by an Appointing Committee of the University – one with marketing experience. Dr West was a member of that committee but had no casting vote or influence on the decision of the committee about who to appoint. (b) The decision to support Mr Taylor following his conviction was the decision of the Principal, in consultation with Dr West in his capacity as Secretary of the University. The terms of a press statement outlining the University’s position were prepared by the Principal. The press statement was read out by Dr West acting in his position as spokesperson for the University.”
[26]The Tribunal did not consider the question of whether or not the inclusion of Dr West in the appeal panel amounted to apparent bias. Relevant Law[27]The Claimant’s contract of employment included the implied obligation that the Respondent would not, without reasonable and proper cause, act in a manner that was likely to destroy or seriously damage the relationship of trust and confident between employer and employee ( Mahmud v BCCI [1997] ICR 606 ). That implied term is descriptive of conduct which, viewed objectively, is repudiatory in nature. In assessing whether or not there has been a breach, what is significant is the impact of the employer’s conduct on the employee, objectively tested, rather than what, if anything, the employer intended (see: Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347 , and Lord Steyn’s approval of Professor Douglas Brodie’s article: recent cases, commentary, “The Heart of the Matter; Mutual Trust and Confidence” in Mahmud v BCCI at p.622).[28]Where a fundamental term such as the above implied obligation is breached, the employee will be entitled to treat the contract as repudiated, resign and claim constructive dismissal ( Western Excavating v Sharp [1978] IRLR 27 ).[29]It is relevant also to consider the principle of bias, since the Claimant relied on it in the appeal. The test that is applied in the court and tribunal context is that of: “whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” ( Porter v Magill [2002] 2 AC 357 para 102).[30]Thus, for there to be a fair hearing, a court or tribunal must not only be free from actual bias but must also be free from apparent bias. The assertion of bias in the present case did not, of course, relate to a court or tribunal. It related to the conduct of the appeal hearing stage of a grievance procedure. However we do not consider that the principles of bias are irrelevant because it follows from the employee’s right to be afforded a reasonable opportunity to achieve redress of their grievances ( W A Goold (Pearmark) Ltd v McConnell [1995] IRLR 516 ) that any hearing that forms part of a grievance procedure should be conducted in accordance with the principles of natural justice. Those principles, in turn, require that the hearing afforded to the employee is, in all the circumstances, a fair one.[31]Ms Davis conceded that, in the employment context, there could be circumstances where apparent bias in a grievance appeal panel would amount to a fundamental breach of contract; we consider that she was, because of the principles to which we have just referred, right to do so. The Appeal[32]The Claimant relied on the Notice of Appeal prepared by her former representative. The grounds of appeal can be summarised as follows. The Respondent was in fundamental breach of contract. The breach consisted of the circumstances in which Dr West was appointed to and remained on the appeal panel. It was not enough for it to be normal for him to sit on such a panel and for his two panel members to have decided that he was not in fact biased. The Employment Tribunal had failed to consider whether, in the particular circumstances, there was apparent bias, which, it was said, there was. Separately, it was plainly inappropriate for Dr West to sit on the appeal panel and no reasonable Tribunal could have found otherwise. The Tribunal’s decision on the matter was perverse. Their decision could not stand.[33]In the course of oral submissions, the Claimant drew attention to the powerful position that Dr West held in the University. She referred to those parts of the Tribunal’s findings in fact which showed that he had participated in appointing Mr Taylor, that he and the Principal had, jointly, decided not to accept his resignation but to support him at the time of his conviction, that it had been Dr West who had monitored Mr Taylor between him speaking to him about the matter and the sentencing diet and that no risk assessment had been carried out in respect of Mr Taylor. She referred to the letters of 4 September and 29 October which drew the Respondent’s attention to her concerns about conflict of interest if Dr West participated in the determination of her grievance. The Respondent knew of her concerns about Dr West and his involvement yet did not respond to them in any way. It was made clear to them that her perception was that he was biased in favour of Mr Taylor. Further, as was not disputed, the Respondent was an organisation of such scale that an appeal panel excluding Dr West could have been convened without difficulty. The Tribunal had failed to have any regard to her perception that Dr West was biased and had they done so, they would have concluded that she was entitled to resign on grounds of fundamental breach of contract.[34]For the Respondent, Ms Davis submitted that the Tribunal’s task was not to assess whether or not there was a conflict of interest but whether or not the Respondent’s conduct amounted to a fundamental breach of contract. The Tribunal had concluded that the Respondent’s decision that Dr West did not have a conflict of interest was reasonable, they were entitled to do so and that was sufficient – there was, in those circumstances, no fundamental breach of contract. As far as apparent bias was concerned, context was all important: Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 ; Modhal v British Athletic Federation Limited [2001] EWCA Civ 1447 . The context here was not that of a court or a tribunal. There was no duty incumbent on an employer to consider apparent bias in the context of a domestic grievance procedure.[35]Ms Davis accepted, as we have noted, that there could be circumstances where the presence of apparent bias in a grievance hearing panel could amount to a fundamental breach of contract. She submitted that it did not, however, do so in the present case because the Claimant had not specifically asserted a case of apparent bias to the Respondent that it did. For reasons which were not entirely clear, Ms Davis also submitted, on a number of occasions, that apparent bias was not relevant in this case because no conflict of interest in fact existed.[36]Regarding the perversity ground, Ms Davis submitted that it was not adequately specified and resisted the assertion that the Tribunal’s decision was a perverse one. Discussion and Decision[37]We begin our considerations by looking at the findings in fact regarding the circumstances as between Dr West and Mr Taylor that were known to the Claimant.[38]Dr West was a powerful figure in the University.[39]The Tribunal found that Dr West was a member of the committee which appointed Mr Taylor. Although they state, at paragraph 173, that he had no influence on the ultimate decision about who to appoint to the post, there are no findings on which they base that comment and it is difficult to see how it could be assumed that the Secretary of a University, such as Dr West, would not exert any influence when participating as a member of such a committee. Whilst we accept that participation in the appointment of an employee may not, of itself, be important, the Tribunal appears to have sought to underplay the matter yet it was not wholly without significance when considered along with the other factors in this case.[40]It is clear that Dr West spoke out publicly in support of Mr Taylor at the time he was convicted of a breach of the peace involving the use of a gun in a public place. Whilst he did so in his role as University Secretary it was, nonetheless, he who spoke out and it was rightly taken by the Claimant as signalling that he agreed that Mr Taylor should continue to have the support of the University and should not lose his job. That was indeed his position. It is plain from the findings in fact that the decision not to accept Mr Taylor’s resignation and to retain him in post was a joint one taken by Dr West and the Principal together. It seems inconceivable that Dr West would have spoken out as he did if he did not agree with the course of action determined on as regards Mr Taylor and it was not suggested otherwise.[41]It was Dr West who monitored Mr Taylor’s conduct after his conviction and prior to sentencing. No risk assessment was carried out.[42]The Claimant considered that Mr Taylor’s conduct was not acceptable for various reasons, as we have explained. She put Mr Taylor at the heart of her grievance, referred specifically to the gun conviction matter and made the Respondent aware of her thoroughly negative view of Mr Taylor and his conduct, in the grievance process.[43]Turning then to the letters of 4 September and 29 October, we consider that they make it plain that the Claimant considered that Dr West had a good relationship with Mr Taylor, that he had participated in his appointment, supported him openly at the time of his conviction and since and that in all the circumstances, she felt that Dr West had a conflict of interest. In short, what was put to the Respondent in both those letters was clear – the Claimant felt that Dr West would be biased in favour of the person whose conduct lay at the heart of her grievance. She felt he was too close to Mr Taylor to give her a fair hearing of her grievance appeal.[44]The Respondents were thus presented with an assertion which, properly understood, was not simply one of actual conflict of interest/actual bias but also apparent bias – it was a statement not just of what was considered to be the case so far as Dr West’s partiality was concerned but of how matters appeared to the outside eye. We do not accept Ms Davis’ submission that the Claimant made no case of apparent bias. The question for the Respondent was not only whether or not there was actual bias (although even if that had been the only issue it is difficult to see how it could be properly and fairly resolved without putting it to Dr West himself for his consideration and comment) - it was a matter of having regard to the fact that the employee considered that Dr West would be biased and the circumstances that led her to that perception. We are not suggesting that an employer setting up a grievance appeal panel is routinely required to consider specifically whether or not there is “apparent bias” in the panel, expressly applying the Porter v Magill test in doing so but what is, in our view, clear, is that any reasonable employer requires to have regard to the need to afford an employee a fair hearing of her grievance throughout, including at the appeal stage. In this case, any reasonable employer would then have had regard to the Claimant’s perception, had regard to the facts relied on by her as justifying her in holding that perception and if they had done so, we consider that they, just like Lord Hope’s fair minded and informed observer, could only have concluded that it would not be fair to her to include Dr West in the appeal panel. They had notice of her concerns in the letter of 4 September. They were not without foundation if viewed objectively – a reasonable employer in the Respondent’s circumstances would not have included Dr West in the appeal panel at the outset. Even if such an employer could reasonably have done so, which we do not accept, when the letter of 29 October was received, spelling out her concerns in no uncertain terms, Dr West would have been removed from the panel by any reasonable employer so as reassure the Claimant and enable her to attend the hearing with her concerns about its fairness thus allayed – the Respondent did not, however, respond to the Claimant’s concerns at all. Finally, in the circumstances, even if it were appropriate for matters to be considered at the start of the appeal hearing by two of the members of the panel without knowing Dr West’s response to the assertion of conflict of interest, their considerations would, if acting reasonably and fairly, not have been confined to the question of whether they considered that Dr West was actually biased. They would, given the concerns articulated on behalf of the Claimant, have considered whether, objectively viewed, the nature of and basis of her perceptions were such as to preclude a fair hearing.[45]None of the foregoing steps were taken by the Respondent and we agree that their failures were, for the reasons we have explained, such as to amount to a breach of the implied term of trust and confidence. It is not, we think, surprising that the Claimant regarded their conduct in this matter as justifying her resignation – we agree that it did. Her resignation thus constituted unfair dismissal.[46]We are, accordingly, persuaded that the Tribunal erred in law in confining their considerations to the question of whether or not the Respondent could reasonably conclude that Dr West was not in fact biased. That was not, for the reasons we have explained, the only issue that they required to address. We would, in any event, observe that it is not at all clear how they arrived at the conclusion that they did absent any explanation or findings in fact as to how and why Professor Millar and Dr Wilson concluded that there was no actual conflict of interest. Disposal[47]In these circumstances, we will pronounce an order upholding the appeal, finding that the Claimant was unfairly dismissed and remit the case to the same Employment Tribunal to determine remedy.