Hart v St Mary’s School (Colchester) Ltd (Unfair Dismissal : Constructive dismissal) [2015] UKEAT 0305_14_0801

EAT
Hart v St Mary’s School (Colchester) Ltd (Unfair Dismissal : Constructive dismissal)
[2015] UKEAT 0305_14_0801 · 2015-01-08
[20]“… Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause. ”27. Employment Judge Amin had given herself a direction at paragraph 31 of the Judgment, which Mr Dutton described as being imperfect. In effect, her error was to evaluate the several factors and to conclude that the Appellant had resigned not because of a breach of contract but either because the employer would not lower her hours or because, in cross-examination, the Appellant had accepted that she was ill and had resigned because of that.28. Mr Dutton characterised Employment Judge Amin’s error as being a failure to realise that her own analysis at paragraphs 39 and 40 of her Judgment clearly meant that the Appellant’s resignation was a response to the alteration of her contract. This is so whether it is accepted that Employment Judge Amin’s analysis in paragraph 40 is a true alternative to paragraph 39 or not. Paragraph 39 deals with contractual matters and matters relating to the number of hours that she worked. Paragraph 40 deals with her answer in cross-examination. Where Employment Judge Amin had erred, submitted Mr Dutton, was that paragraph 40 was simply an additional factor. In any event, the Employment Tribunal had confused the reason for resignation with the consequence of repudiation. When one looks at the letter at page 6A of the appeal bundle, it is quite clear that the acceptance of the situation by the Appellant relates to the fact that she is being required to work over five days. In his Skeleton Argument Mr Dutton had submitted that the conclusion reached by Employment Judge Amin at paragraphs 39 and 40 of the Judgment was one that no Tribunal, properly directing itself on the evidence, could reasonably have arrived at: in other words that it was perverse. He did not develop that submission orally but I bear it in mind. The Respondent’s Case29. Miss Berry submitted that, on the construction point, one should read Clause 1.4 and 2.1 together and read them against the finding made by Employment Judge Amin at paragraph 14 of her Judgment that the working days were not contractually fixed. The Appellant had agreed that she worked a 0.6 contract in her evidence and clearly the learned Judge had construed paragraphs 1.4 and 2.1 as providing a unilateral right to vary the hours worked. Miss Berry submitted that the words were clear enough to allow the employer to either vary upwards or downwards the length of time that the Appellant worked or to vary the date upon which she did that work even if they did not alter the hours that were worked.30. The finding at paragraph 14 was supported by the evidential findings at paragraph 15. She did concede, however, that in relation to Clause 1.4 there might need to be some sort of limitation imposed by a need to act reasonably when varying the terms of the contract. She accepted what had been said by Lord Woolf in D’Silva and by Peter Gibson LJ in the Security and Facilities Division v Hayes case meant that a unilateral power of variation was unusual, required the clearest of contractual drafting and might be subject to some concept of reasonableness. Although the language was not as clear as that used by ASDA in the Bateman v ASDA case, the words of Clause 1.4, “may be subject to variation depending upon the requirements of the School Timetable”, were absolutely clear. Moreover not only do the words need to be read as a whole but the two clauses, when read together, would lead to the conclusion that the employer was able for the better performance of the teaching duties and for the requirements of the timetable to make alterations and require teachers to work at different times or for different hours or in different ways.31. She accepted that on one view part-time teachers were included within the scope of Clause 2.1. Whether it is expressed as a fraction of three-fifths or as a decimal of 0.6 the Appellant was paid that percentage of a full salary, and there was no reason why, in those circumstances, given that she received paid holidays on that basis, that the full effect of Clause 2.1 should not apply to her as a part time teacher. But Miss Berry accepted there might be an alternative way of looking at 2.1, namely that it did not apply to part-time teachers under 1.4. Even so, her alternative submission was that then Clause 1.4 would give a wide power of variation dependent on the requirements of the school timetable.32. As to resignation Miss Berry submitted that there had been no error of direction as to law by Employment Judge Amin. Her phraseology in paragraph 39 in relation to any repudiatory breach and in paragraph 41 in relation to any alleged repudiatory breach could not support the proposition that she was thereby insisting upon a predominant cause. In any event, causation here depended upon the Appellant’s own evidence that she had resigned because of ill-health (see paragraph 40 of the Judgment), and in those circumstances Employment Judge Amin had been perfectly entitled to reach the conclusions that she had reached.33. In the end there was not really an enormous difference between counsel as to how one should approach the task of looking at the terms of the contractual documents created in March 2003. The main difference between them in the end was that Mr Dutton insisted that there may exist a separate part-time contract, outside the scope of the March 2003 agreement, a proposition which Miss Berry could not accept. Conclusions34. I agree that the construction of the words in the contract of 2003 should be informed by a consideration of the background leading up to that document having been signed. In my judgment, whether it was a new document or, as I think, rather more likely, simply a late production of the official contract referred to in the letter of appointment at page 57 of the bundle, in order to understand what the words in Clause 2.1 and 1.4 mean, it is necessary to have regard to what had been previously agreed and what had happened leading up to the signing of the document. But I do not agree with Mr Dutton that means there was some other contract existing contemporaneously with the agreement arrived at in 2003. Firstly, it seems to me very difficult to contemplate the existence of any freestanding and surviving agreement when one takes account of the wording of Clause 14.1 of the agreement (see page 66). This reads:
“14.1. This present Agreement shall take effect in substitution for any previous contract of employment existing between the School and the Teacher and as from the date thereof any such previous contract shall cease to have effect but without prejudice to any right of action which has arisen or notice or warning given thereunder.” 35. Secondly, whilst I accept that the teacher’s contract at pages 59 to 81 of the appeal bundle, although it contains a great deal more than the letter of appointment of 21 months earlier, I do not accept that it contains absolutely everything. As Mr Dutton pointed out, it does not contain any statement as to the length of time that the Appellant was to work under the part-time contract. Clause 1.4 requires that the “fractional part” will be notified separately. Plainly there must be some part of the agreement outside the rubric of the teacher’s contract that fixes the number of part-time hours or days. But this does not seem to me to mean that there is another contract. It simply means that the extent of the part-time working was either agreed in some other document or agreed orally in the case of part-time teachers. 36. In the instant case there is no document and not much evidence about any oral agreement. But in my judgment the right analysis must be that the parties agreed that the extent of the part-time working would be the three days per week that the Appellant was working at the time she entered into the agreement. If anything else was to have been agreed, it would have to have been notified. I do not accept, however, Mr Dutton’s argument that if there was no express notification then there could be no completed agreement. I think he reads too much into the future passive tense in Clause 1.4; that should not be taken absolutely literally. It must mean, in my judgment, will be notified or will have been notified. This is a contract which contains indications that it is couched in alternative terms to take account of whether the work is full or part-time. Equally it is couched in alternative terms to take account of the fact that the teacher may already be employed but not employed under this specific contract (see again Clause 4.1 at page 62 of the appeal bundle). So it seems to me that, when this contract was entered into, a very significant part of the factual matrix was that the Appellant was working three days a week and that those three days a week had resulted from previous alterations, but there is nothing to suggest that they had been imposed on the Appellant without her consent or that they were in any way inconvenient to her. 37. I accept Mr Dutton’s submission that the words “the fractional part” are a cumbersome and inaccurate expression. But it seems to me clear that what the words are getting at, in the context, is the scope of the part-time working. I adopt the approach, as I must, of Lord Hoffmann in Investors . Whilst what the Appellant herself intended or what she herself understood is not helpful (or even possibly admissible) in relation to the meaning of the contract, it seems to me from the factual matrix that what the parties intended was the scope of her part-time work would be three days a week. I can see no basis, then, in 2003 for the construction put upon this by Miss Berry. It is true that the fraction has later been expressed as the decimal 0.6, and naturally I accept what Miss Berry tells me, that, when it was put to the Appellant that she was working a 0.6 fractional [1] contract, that the contract was to be expressed as 0.6 of a full-time contract, she accepted it. But I do not think that the Appellant’s acceptance of it has anything like the significance that Miss Berry attributes to it. 38. The position in 2003 seems to me that the Appellant was working part-time three days a week on Tuesdays, Wednesdays and Thursdays. Whether one expresses that as 0.6 of a full-time contract or three-fifths of a full-time contract does not answer the question: what alteration to that could be made without her consent? Employment Judge Amin concluded that, although this was her working pattern and had been so over several years, the contractual hours or contractual days were not fixed. In my judgment she fails to explain at all why that is so. 39. She reaches this conclusion at paragraph 14 of her Judgment. Miss Berry submits that there is some explanation at paragraph 15. But in my judgment it is no explanation at all. The fact that her hours had increased to two-and-a-half days and then three days is not an indication of a unilateral right to vary the contract. The evidence is silent and the findings are silent as to how that was arrived at. But it might well have been arrived at by mutual consent. Likewise there is no suggestion, as it seems to me, in either the Judgment itself or any of the material I have been helpfully pointed to that might indicate any of those matters referred to at paragraph 15 arose as a result of a unilateral variation of the contract by the employer. Indeed, insofar as I am assisted by the material that does not form part of the Judgment, it would seem to me that whilst the Appellant agreed to do certain things, there is no evidence whatsoever that she was compelled to start early or that she was compelled to take over a Monday being worked by somebody who was on compassionate leave. In my judgment none of these matters provide any explanation as to the finding that the hours were not contractually fixed. 40. The alternative approach adopted by Miss Berry is to argue that, on a proper construction of Clause 1.4 and 2.1, either taken separately or together, the contract can be read as meaning that the hours are not fixed. I cannot accept that submission. I start with Clause 2.1. Clause 2.1 tells us something about the extent of the work of a teacher during the school day. It is in mandatory or peremptory form. It dictates that the teacher “shall work all School hours while the School is in session.”
So that does tell us something about what a teacher is to do while the school is in session. There is then the word “and”, but that clearly, whilst it is a conjunction, is leading to an entirely different period of time; that much is obvious from the words “at any other time”. So Clause 2 deals with two matters. One is when the school is in session and the other is when it is not. When the school is not in session (and that in the bracketed parenthesis includes school holidays, weekends before normal working hours, after normal working hours) then the teacher “shall work as may be necessary in the reasonable opinion of the Principal for the proper performance of his/her duties”. In other words what Clause 2.1 tells us is that the teacher must work a particular amount of time during school hours and may be required to work at other times outside school hours. 41. This, in my judgment, does not apply to the hours to be worked by a part-time teacher whilst the school is in session. The exception created by the words in the first line of 2.1, “except as may otherwise be provided for under clause 1.4 above”, takes part-time teachers out of the mandatory provisions relating to working all school hours whilst the school is in session. In my judgment that is the scope of the exception. In other words it applies to the first part of Clause 2.1. A part-time teacher may be required by the power in the second part of 2.1 to work outside school hours. 42. But that tells us nothing about working within school hours. That is dealt with by Clause 1.4. The fractional part referred to in clause 1.4 is the amount of part-time working provided for by the contract. In this contract what had been notified, although the evidence is very scant about this, is two days (and one can be certain about that because it is in the terms of the letter of appointment) then two-and-a-half days and then three days. What then does the second part of Clause 1.4, “may be subject to variation depending upon the requirements of the School Timetable”, mean? In my judgment this is permissive and it does not tell the reader in what circumstances the variation may take effect. “May be subject to variation depending upon the requirements of the School Timetable” might incline one to think that the variation is more likely to take place at the behest of the school. But I do not regard the wording as making that entirely and completely unilateral. The variation could be at the request of the part-time teacher. Both variations would have to be subject to the requirements of the school timetable. The school may refuse a teacher’s request for a variation and vice versa. Even though the requirements of the school timetable might suggest to the employer that there should be a variation, in my judgment it does not amount to a power to vary unilaterally. Lord Woolf, at paragraph 30 of the Judgment of the Court of Appeal in D’Silva , in a passage which is admittedly obiter dictum , referred to power of unilateral variation as an unusual power. His requirement of clarity and also his suggestion that there would have to be a strong case of reasonableness, whilst it has never been affirmed in a case in which the issue was the subject of the ratio decidendi of the case, is now well accepted through the later cases, one in the Court of Appeal in the Security and Facilities Division v Hayes Judgment, Peter Gibson LJ at paragraphs 44 and 45 and the other the Judgment of a division of this Tribunal presided over by Silber J in the Bateman case. I do not regard the words in paragraph 1.4 as being sufficiently clear when looked at in the context and when one can quite clearly see a prospect of the teacher applying to vary, as well as the school applying to vary, as amounting to a unilateral power of variation in the employer. These are matters that were never considered by Employment Judge Amin. She took the view that this was all very clear and straightforward. In my judgment, in doing so, she fell into error. 43. I turn then to consider the issue of the reason for resignation. In the cases of Abbycars (West Horndon) Ltd v Ford and Wright v North Ayrshire Council , divisions of this Tribunal have in effect affirmed the approach first proposed by Keene LJ in Nottinghamshire County Council v Meikle [2004] IRLR 703 at paragraph 33. He said there:
“… The proper approach, therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract of employment as at an end. It must be in response to the repudiation, but the fact that the employee also objected to the other actions or inactions of the employer, not amounting to a breach of contract, would not vitiate the acceptance of the repudiation. It follows that, in the present case, it was enough that the employee resigned in response, at least in part, to fundamental breaches of contract by NCC.”
That passage is cited in both the Abbycars and in the Wright case, and it seems to me beyond doubt that the right approach is to ask whether the repudiatory breach plays a part in the resignation. 44. Both the later two cases, and indeed the Meikle case itself, are dealing with a number of complaints, some of which amount to a breach of contract and some of which do not. So one ends up with the position in those cases set out at paragraph 20 of the Judgment of this Tribunal in Wright , set out above but which it might be convenient to repeat; it reads:
“That demonstrates the error. Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.” 45. Is there any distinction between cases where the employee advances a number of reasons for resignation, not all of which turn out to be repudiatory breaches of contract, and cases where some of the reasons advanced for resignation are not connected to the employee’s conduct at all whilst some are? In my judgment the answer is that it is all really a question of causation. If the fundamental breach or repudiatory breach (and in the course of argument both expressions have been used) is part of the cause of the resignation, then that suffices because the law does not require or call for sole causation or predominant effect. The law requires that the fundamental breach or repudiatory breach be causally connected to the resignation. As Keene LJ identified in Meikle the issue is whether a repudiatory breach has been accepted by the resignation. 46. What troubles me in this case is that Employment Judge Amin appears to have adopted an alternative view at paragraphs 39 and 40 and in my judgment has not asked herself in relation to either whether the purported variation was part of the cause for her resignation. At paragraph 39 she deals with the terms of the letter of resignation (see page 6A of the bundle). She reaches the conclusion that, because the Appellant in the letter referred to her own proposal having been rejected, that meant she had resigned because the Respondent had refused to offer her reduced hours on the three days a week that she did work. That seems to me to be a very strained reading of the letter of resignation. If one concentrates too much on the layout of the letter in four separate paragraphs, one might be forgiven for thinking that each is dealing with a different topic. But on closer inspection that is clearly not correct. The second and third paragraphs are different sides of the same coin. The first sentence of the second paragraph refers to the argument that had been put forward about the right unilaterally to vary the contract. The third sentence complains that the employer has not made an offer about three-day working on reduced hours. The sentence that is occupying a separate paragraph, if added to it, clearly counterbalances it: “Instead, for the new Autumn term, you continued to impose a 5-day timetable, without any flexibility.” 47. It seems to me that, on a proper reading of the letter, it is at least arguable that the variation is at least part of the reason for the resignation in the first paragraph of the letter. Putting it in other words she has given notice in writing to terminate because: “You have insisted on unilateral variation. I wanted to work three days on reduced hours. But you insist on my spreading those hours over five days.”
One might add in parenthesis “by unilateral variation”. If looked at in that way, it seems to me at least arguable that letter is indeed an acceptance of what is alleged to be a repudiatory breach of contract, namely the unilateral variation, as having ended the contract. 48. The matter is dealt with in the alternative at paragraph 40. Employment Judge Amin records the answer in cross-examination that the Claimant resigned because she was suffering from insomnia and thought she would get better after the holidays: “… However, as her condition worsened she was advised by her GP to stay away from work and to rest as recovery would take a few months. The Claimant was ill and had no one to turn to. The new changes were due to start on 1 September 2013 and it was not ideal for her to work under the changed regime and so she resigned.” 49. I accept Mr Dutton’s submission that, looked at in that way, it is at least open to question whether Employment Judge Amin was not, in effect, finding that although she resigned because she was ill, the Appellant’s resignation was because she realised she would not get better under the new working regime. I am, however, hesitant about putting that interpretation on it myself. I did not hear the evidence and it seems to me, bearing in mind the recent case of Jafri v Lincoln College [2014] IRLR 544 , that I would be usurping the fact finding function of the Employment Tribunal were I to attempt anything other than to remit the matter. 50. Mr Dutton, in his submissions, accepted, if I have understood him correctly, that if I took the view that there had been an error of construction, then this resignation issue might well have to go back for reinvestigation at the Employment Tribunal. I will hear submissions about that. I have reached the conclusion that Employment Judge Amin was in error as to her construction, that Clause 1.4 does not give a power of unilateral variation, and that no matter how reasonable it might be from the point of view of the employer, in the end, if there is not a mutual agreement about it, the contract cannot be varied. To purport to vary it unilaterally was therefore a breach of contract. The question then is whether the employee in this case resigned on account of that or not? That, it seems to me, may still be an open question, although I do not accept that the analysis of Employment Judge Amin at paragraph 39 is necessarily a correct reading of the letter and that the analysis at paragraph 40 may indeed, in effect, be an analysis that connects the resignation to the breach even though part of the reason may have been illness. The matter needs to be looked at again through the prism of the correct direction that sole cause or predominant effect is not necessary; all that is required is that the variation was part of the cause of the resignation. Disposal 51. Having now heard submissions on disposal and having concluded that Employment Judge Amin erred in relation to repudiatory breach and also that there was an error in her analysis in relation to the acceptance of the repudiatory breach, it seems to me that the matter must be remitted for a rehearing on the basis that there was no power to vary unilaterally and the insistence on the part of the school that it was entitled to introduce these changes and require the Appellant to work over five days as opposed to three was a breach of her contract. 52. There must be a reconsideration as to what the consequences of that are. Miss Berry submits that the matter ought to go back to Employment Judge Amin because of convenience. She regards the criticisms made of the Judgment by Mr Dutton as excessive. Whilst I agree that they are excessive, and I am always in favour of the most economic disposal of the matter, it does not seem to me that this matter ought to go back to Employment Judge Amin. I would not regard her Judgment as totally flawed, but it does not seem to me that this is a case where a great deal of further cost or expense need be incurred. I will substitute for her conclusion that there was no repudiatory breach of contract, a finding that there was a repudiatory breach of contract. Then the question as to what follows from that must be remitted to an Employment Tribunal. I will give only this direction, that it should be a differently constituted Employment Tribunal but not to Employment Judge Amin. My reason for reaching that conclusion is that in essence this is a second bite of the cherry case and that the best way in which the matter can be justly disposed of is for a fresh consideration of the consequences of a repudiatory breach to be made by a different Employment Judge. Any further directions will be given by the Regional Employment Judge. The parties may or may not wish to call further evidence. They may wish to make submissions. But that is entirely a matter for them to make an application to the Regional Employment Judge as to what form this hearing should take. I am going to direct that this matter should be reheard as to the issue of whether or not, given that there was repudiatory breach by the employer, there has been a constructive dismissal within the meaning of the terms of the statute, at which the parties are at liberty to call further evidence and make such further submissions as they wish. [1] An obviously inaccurate mathematical expression but I understand the actual words put.