Drs Burton, McEvoy & Webb (A Partnership) formerly Drs Burton, McEvoy & McEvoy v Curry UKEAT/0174/09/SM; UKEAT/0302/09/SM

Appeal against the decision by Employment Tribunal that the claimant was unfairly constructively dismissed. Further appeal against the compensation awarded to the claimant. First ground of appeal dismissed; second ground allowed in part.

The claimant, who was aged 60, was employed as a practice manager within a partnership of GP’s. After the respondents had concerns over aspects of the claimant’s performance and the stress he claimed to be suffering, they decided to allocate a core part of his job to another employee. The claimant complained that his position had been undermined. A grievance meeting between the parties failed to convince the claimant that his position would be restored and he resigned. The Employment Tribunal agreed with the claimant that he had been unfairly dismissed and said that ‘to unilaterally remove those core responsibilities from [the claimant] without good reason not only amounted to an express breach of a fundamental term of his contract of employment but to a breach of that implied term of trust and confidence’. The claimant was awarded the maximum statutory compensation together with a basic award, the Tribunal saying that the claimant would have continued in his employment until his 65th birthday had it not been for the erosion of his management responsibilities.

The EAT upheld the decision of the Tribunal on the issue of liability, saying that, although the Tribunal may have answered the right questions in the wrong places, the reasons for the conclusion which it reached were clear and defensible. The EAT also said it was within the scope of permissible judgment for the Tribunal not to apply a Polkey reduction to the compensation award. However, the EAT reduced the award by 10% pursuant to s31(2)(c) of the Employment Act 2002 because the claimant had failed to pursue any appeal under the statutory grievance procedure.

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Appeal No. UKEAT/0174/09/SM UKEAT/0302/09/SM

EMPLOYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal On 15 December 2009 Judgment handed down on 21 April 2010

Before THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) MR D EVANS CBE MRS A GALLICO

**DRS BURTON, McEVOY AND WEBB (A PARTNERSHIP) FORMERLY DRS BURTON, McEVOY, AND McEVOY (APPELLANTS)**

MR ROBERT CURRY (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellants MR JAMES WYNNE (of Counsel) Instructed by: Messrs Schofield Sweeney LLP Solicitors Springfield House 76 Wellington Road LEEDS LS1 2AY

For the Respondent MR AKHLAQ CHOUDHURY (of Counsel) Instructed by: Messrs Eatons Solicitors The Old Library 34 Darley Street BRADFORD BD1 3LH

SUMMARY

UNFAIR DISMISSAL – Constructive Dismissal

UNFAIR DISMISSAL – Polkey Deduction

STATUTORY GRIEVANCE PROCEDURE – Impact on Compensation

Claimant employed as Practice Manager of a partnership of GPs – Appellants seek to transfer his responsibilities for staff management to his deputy – He resigns – Tribunal holds that Appellants committed a repudiatory breach of contract and that Claimant was constructively dismissed and that the dismissal was unfair – Compensation, to the statutory maximum, assessed on the basis that the Claimant would have remained in employment for a further five years to age 65.

Held:

(1) Tribunal entitled to find that Appellants’ conduct constituted a repudiatory breach of contract and that the dismissal was unfair – Consideration of approach to constructive dismissal cases in the light of Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121

(2) Tribunal not obliged, on the facts, to make a “Polkey deduction” to reflect risk of termination of the contract (without unfair dismissal) prior to Claimant’s 65th birthday

(3) Tribunal had failed to reduce the award as required by s. 31 (2) (c) of the Employment Act 2002 – 10% reduction made to total of compensatory and basic awards

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

**INTRODUCTION **1. The Claimant, the respondent to these appeals, was employed by the Appellants, a partnership of GPs practising in Ripon, between November 2004 and his resignation at the end of 2007.  He brought proceedings against the Appellants for unfair (constructive) dismissal.  The issue of liability was heard over four days in February 2009 before an Employment Tribunal sitting in Leeds chaired by Employment Judge Burton.  By a Judgment with Written Reasons sent to the parties on 3 March 2009 his claim was upheld.  There was a remedy hearing on 31 March.  By a Judgment with Written Reasons sent to the parties on 11 May the Claimant was awarded compensation of £60,600, together with a basic award of £1,395 – a total of £61,995.  (The actual amount of the Claimant’s loss was assessed at £63,960.75; but £60,600 was the then the statutory maximum.)

2. The Appellants have appealed against both decisions.  They were represented before us by Mr James Wynne.  The Claimant was represented by Mr Akhlaq Choudhury.  The case was well argued by both counsel, neither of whom appeared below (where both parties were represented by solicitors).

3. At a preliminary hearing on 11 August 2009 the appeals were permitted to proceed on the basis of an Amended Notice of Appeal.  This raised four grounds, two of which relate to the liability decision and two to the remedy decision.  We consider them in turn (though it is convenient to take the grounds relating to remedy in the reverse order to that in which they are pleaded).

(A) LIABILITY

THE FACTS

4. The facts can be sufficiently summarised for present purposes as follows:

(1) The Claimant’s contract of employment incorporated a job description.  Para. 3 of that job description was as follows:

Directly manages all the non-clinical staff in the practice.  In respect of the practice nurses, the post holder will manage the employment, training and resource implications of their work.  For their clinical work the nurses are accountable to the GPs.

Para. 5 listed the Practice Manager’s principal responsibilities.  Under the sub-heading “personnel and training” he was said to be responsible for “managing the administrative and nursing staff identified above, and taking lead responsibility in staff appraisal and in organising recruitment, selection and training”.

(2) In the course of 2007 (if not indeed before) the Appellants had concerns about aspects of the Claimant’s performance.  They took the view that part at least of the problem was that he was doing too much – he himself admitted that he was a workaholic – and was unable to delegate appropriately.  The Claimant was known to suffer from stress, and the Appellants were also concerned about the risk to his health of his undertaking excessive work and responsibility.  They took the view that the solution was for the Deputy Practice Manager, Samantha Miles, to take over, in whole or in substantial part, his responsibility for staff and personnel matters: we say “in whole or in substantial part” because, as will appear, the precise extent of what was proposed was a matter of dispute in the Tribunal.

(3) That proposal was raised at a meeting between Dr. Burton and the Claimant on 15 November 2007.  He made it clear that he was unhappy with it.  However, the proposal was raised again at a full practice meeting on 22 November.  The Tribunal found (at para. 36 of the Reasons) that a decision was taken at the meeting forthwith to remove from the Claimant the “staff liaison” role (as it was described in the notes of the meeting): it was also decided that if a member of staff did not feel comfortable dealing with Ms Miles they should go not to the Claimant but to Dr. Burton.

(4) On 23 November 2007 the Claimant gave two months’ notice of his resignation.  He said, as noted by Dr. Burton:

He feels staff management and development are his background skills.  He felt that if the staff reported to Sam, and if they had a problem with Sam to me, that it was not the job he had been employed to do.  I replied that he would still be advising and training Sam, as he had experience and expertise that she would need to draw on.  In particular he had the knowledge of the legal side of staff management.

(5) The Claimant confirmed his decision in a resignation letter dated 26 November 2007.  After reciting his account of the events of the previous two weeks he said:

The implication is that I am removed from line management of staff directly or indirectly and I consider this to be a core part of my role.  With a long and successful pedigree in human resource management, I consider that line management under development of both teams and individual staff is one of my key skills: it is the primary aspect of the role that I enjoy and the key part of the role that attracted me to work at the Practice.

(6) On 3 December 2007 Dr. Burton responded.  As regards the question of responsibility for staff she said this:

You have recently stated how much work you have on and it was thought that if the role of managing staff issues were performed instead by Sam, this would lighten up your workload.  As you know, it was always your intention to train up Sam in this area anyway so I am a little puzzled as to why this is now an issue.  You would still have substantial responsibility for personnel issues in that you would be training Sam and you would still be responsible for updating contracts of employment and compliance with employment legislation.

(7) The Appellants conducted a grievance meeting with the Claimant and a representative on 12 October 2007.  A full transcript of that meeting was before the Tribunal and also before us.  The differences between the parties were considered at some length, but the Claimant did not believe that his position had been restored.  Since it became clear that his resignation would stand, the Appellants asked the Claimant to leave before the end of the period of notice that he had given and he was paid money in lieu.

THE ISSUE BEFORE THE TRIBUNAL

5. As appears from his resignation letter, it was the Claimant’s case that the Appellants had removed a core part of his job, namely his responsibility to manage the staff, and had accordingly repudiated the contract of employment; and that the resulting constructive dismissal was unfair.  It was the Appellants’ case that the effect of what was decided at the meeting of 22 November 2007 was not to remove from the Claimant altogether the responsibility for the staff but merely, as the Tribunal summarised it at para. 39 of the Reasons, “to transfer to Ms Miles the responsibility for dealing with the trivial day-to-day difficulties that staff raised”: he would remain their line manager.  Accordingly, they contended, there had been no repudiatory breach and no dismissal.

THE TRIBUNAL’S REASONING

6. The Tribunal’s conclusions on the issue of unfair dismissal appear at paras. 47-55 of the Reasons as follows:

47.   We approached our decision in two ways.  First we had to consider whether there was a breach of an express term of the Claimant's contract of employment, specifically relating to his duties as defined within the job description.  Second we have to consider whether there has been a breach of the implied term of trust and confidence.  It seems to us that, whichever way we approach this case, it involves answering the same question.  If the Respondent has breached the express terms of the Claimant's contract of employment by removing from him areas of responsibility as defined within his job description, that would not amount to a fundamental breach of his contract of employment if they did so for good reason.  Similarly if the removal of a part of his responsibilities amounted to an act which was likely to destroy or seriously damage the relationship of trust and confidence that would only become a repudiatory breach if it was done without reasonable and proper cause.

48.    Therefore it seems to us that the way in which we should approach this case, to begin with, is to decide whether when the partners intended to remove the entirety of his line management responsibilities, as he believes, or the more limited responsibility for dealing with the day to day difficulties raised by staff [sic].  If the latter is the case the removal of those responsibilities is neither going to be a fundamental breach of his contract nor is it going to be conduct likely to seriously damage or destroy the relationship of trust and confidence.

49.    If, alternatively, the Respondent did intend to remove his fundamental line management responsibilities, which is far more likely to amount to a fundamental breach, did they do so with good cause?

50.    Answering the first of those questions we have little difficulty in determining that it was the Respondent's intention to remove the fundamental line management responsibilities from the Claimant.  The words used by the partners on 22 November make it plain that their intention was to transfer responsibilities to Ms Miles on the basis that she would look to the Claimant for advice but in the event of any difficulty the staff would be referred to a partner, Dr Burton. That note makes it clear that the Claimant's residual responsibilities were in relation to training Sam into her role and dealing with legal areas, such as the drafting of contracts of employment.  If there was any doubt about that, as we have already noted, the Claimant's resignation letter is clear as to his understanding of what was being said to him and the Respondent's letter in response to his resignation clearly accepts that to be the position when they say:

"As you know, it was always your intention to train up Sam in this area anyway so 1 am a little puzzled as to why this is now an issue. You would still: have substantial responsibility for personnel issues in that you would be training Sam and you would still be responsible for updating contracts of employment and compliance with employment legislation."

Even if that was not clear enough the Respondent did not take the opportunity in the course of the Grievance hearing to correct the Claimant as to his understanding.

51.    To remove line management responsibilities from the Claimant is to take away the management responsibilities described at Paragraph 3 of his job description and one of the principal responsibilities described at Paragraph 5 of his job description.  Of course it goes deeper than that.  Many of the other of his principal responsibilities involve him in dealing with other members of staff who are there to perform the roles which enable him to fulfil his principal functions as Practice Manager.  Without line management responsibility for those members of staff his position becomes impossible.  As a simple example one of his principal responsibilities, under the heading Finance and Profitability, is the "Responsibility for the accounts, petty case and other financial aspects of the practice including payroll and NHS Pension Scheme arrangements."  He himself would not be responsible for dealing with all of the day to day financial transactions carried out by this practice.  Those transactions are carried out by other members of staff.  It is impossible for him to have overall responsibility for those accounting issues without, at the same time, having management responsibilities for the members of staff involved. Thus by removing those responsibilities from him the Respondent effectively transform the Claimant from the position of management, which he believed he had, to the position of an Administrator, which he had repeatedly made clear he did not want.

52.    We then have to ask ourselves whether or not the Respondent behaved reasonably in imposing that change upon him.  It is suggested that as medical practitioners they were concerned that the Claimant was suffering from stress and overwork and that in response to their duty of care to him they had no alternative but to alleviate the burden upon him by removing this responsibility from him. He had, however, repeatedly made it clear to the Respondent that it was not the burden of work, as such, that created stress, but the difficulty that he perceived in his relationship with the partners.  He felt stress by reason of the fact that he perceived that he was being constantly undermined, criticised without good cause or without him being given a proper opportunity to deal with the criticisms and because his role, as Practice Manager, was constantly under threat.

53.    We accept that stressed employees may, perhaps, be the worst judges of what it is that causes them stress.  We also understand that people who are driven to work harder than they should may well not appreciate the impact that that level of work is having upon them.  It would have been open to the Respondent to address that issue by referring the Claimant to an appropriate medical advisor.  They chose, instead, to substitute their own judgment.

54.    What is, however, clear, is that the Claimant had told them, unequivocally, that he was distressed because his role was being threatened and because he felt undermined.  If the Respondent genuinely believed that their duty of care towards the Claimant involved relieving him of significant responsibilities there would have been nothing, at all, wrong in encouraging him to delegate more of his work to Ms Miles, which she was clearly capable of doing, and in turn for many of her responsibilities to be delegated down to the new Admin Secretary.  We have no doubt that if approached correctly Mr Curry would have welcomed that kind of approach because it would have recognised his position as Practice Manager and that the line management responsibilities would have continued albeit that part of those responsibilities would have been delegated to Ms Miles.  He would thereby have retained status and control.  What happened, instead, was that the Respondent decided, for whatever reason, unilaterally to remove those responsibilities from the Claimant.  If the Claimant had had difficulties before then in identifying what did or did not lay within his sphere of responsibility it would have been absolutely impossible for him to know after those changes had been imposed upon him. To unilaterally remove those core responsibilities from him without good reason not only amounted to an express breach of a fundamental term of his contract of employment but to a breach of that implied term of trust and confidence.  When all is said and done nothing is more likely to destroy the relationship of trust and confidence than the removal of those essential and core responsibilities that the employee holds.

55.    It follows therefore that we conclude that the Claimant was dismissed pursuant to Section 95(1)(c) of the Employment Rights Act 1996.  The Respondent has not sought to demonstrate that any such dismissal would have been fair and, as a consequence, that dismissal must be an unfair dismissal.

GROUND 1: PERVERSITY/INADEQUATE REASONING

7. Ground 1 of the Amended Notice of Appeal reads as follows:

By finding that the entirety of the Claimant’s line management responsibilities had been removed, and that this amounted to taking away the responsibilities described at paragraph 3 of his job description and one of the principal responsibilities described at paragraph 5 of his job description, the tribunal failed to take into account and/or failed adequately to explain how it had dealt with the evidence showing that the responsibilities removed were more limited.

8. Mr Wynne developed that point before us by referring to what he said was cogent evidence that the Appellants made it clear to the Claimant that they had never intended to remove the entirety of his responsibility for staff and that he would retain at least some personnel/HR functions.  In the light of that evidence, he submitted, the Tribunal’s contrary conclusion was either perverse or at least not adequately reasoned, so that the Reasons were in this respect not “Meek-compliant”.  The evidence in question fell into two categories – (a) passages from the notes of the meeting of 15 November and the transcript of the grievance meeting of 12 December, which are said to make the Appellants’ position clear; and (b) passages in the witness statement of Ms Miles in which she sets out in some detail the way in which responsibility for staff issues worked before the proposed changes and how she understood that they would have worked if those changes had been implemented.

9. As to (a), we do not think it necessary to set out the passages in full.  The essence of the passage in the note of the earlier meeting is that Dr. Burton agreed that the Claimant would continue to need “finance meetings” with the senior nurse and that “he would still need to advise Sam and … his knowledge and experience would be invaluable to her”.  As to the grievance meeting, Mr Wynne referred us in particular to a comment by Dr Burton as follows:

Right, if you look at our letter to you, we say that we feel that you have substantial responsibility for personnel issues in that you would be training Sam, responsibility for updating contracts of employment and compliance with employment legislation … and that is an important part of HR management: in fact it really is HR management rather than HR officer work.

He also referred to a later observation at the same meeting that the new job

… would leave you space, would be to just the day-to-day staff interface but not to take away the overall control, because you will be training Sam.  Sam would be reporting up to you and all the legal side, all that kind of stuff and advice to Sam would still come from you.

But it is necessary to read those observations in the context of the whole of the dealings between the Appellants and the Claimant over this period, including – crucially – Dr Burton’s own note of the meeting of 22 November and the terms of her letter of 3 December, as set out at para. 4 (4) and (6) above.  Both of those clearly convey the message, as the Tribunal put it at para. 50 of the Reasons, that the Claimant’s residual responsibilities were limited to training and advising Ms. Miles, particularly on legal questions.  There is ample material on which the Tribunal was entitled to conclude that the clear overall impression given to the Claimant was that he would be relieved of all line management responsibilities for staff.  That being so, neither the assurances that he would still have some limited input in particular areas nor the passing acknowledgment at the grievance meeting that Ms Miles would be “reporting to” him (although NB, any staff problems with which she could not deal would in fact be going to Dr Burton) are sufficient to compel a different conclusion.  Once that point is reached, the Tribunal was plainly entitled to conclude that this was a fundamental departure from the nature of the job as described in the contract, and indeed as performed by the Claimant up to that point.  The description “day-to-day [management]” tends to belittle the importance of the issue.  The experience of this Tribunal, and in particular the lay members, accords with the point made by the Tribunal at para. 51 of the Reasons that the question of who members of staff understand themselves to be reporting to is of fundamental significance in any workplace.  In our view, therefore, the Tribunal was fully entitled on the evidence before it to reach the conclusion that it did.  We cannot accept that its reasons are inadequate merely because it did not expressly refer to the passages on which Mr Wynne relied before us.  It is clear that it had the totality of the evidence in mind, and the “Meek obligation” (or, now, the obligation under rule 30 (6) of the Employment Tribunals Rules of Procedure) does not require reference to be made to every detail of a party’s argument.

10. As to (b), we do not believe that it was necessary for the Tribunal to refer to the evidence of Ms Miles.  She was not directly involved in any of the dealings between the Claimant and the Appellants.

GROUND 2:  MISDIRECTION AS TO REPUDIATORY BREACH

11. This ground of appeal reads as follows:

By identifying a repudiatory breach of contract and that this amounted to an unfair dismissal the tribunal failed to direct itself to the relevant principles and failed properly to identify or analyse the reason the Respondent acted as it did.

That is somewhat opaque, but the nature of the challenge was developed by Mr Wynne in his skeleton argument and his oral submissions before us.

12. It is convenient to start with the direction which the Tribunal gave itself as to the law.  At para. 44 of the Reasons it set out the provisions of s. 95 (1) (c) of the Employment Rights Act 1996, which are (so far as material) as follows:

(1)     For the purposes of this Part an employee is dismissed by his employer if … — (a)       … (b)       … (c)      the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.

It then said this:

45.    The representatives in this case have referred the Tribunal to a large number of authorities.  As interesting as they may be, it is our view that we need, in this case, go no further than to consider the guidance provided in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221.  It is for the Claimant to demonstrate that the Respondent has committed a repudiatory breach of his contract of employment, that he left because of that breach, and that he has not waived that breach.

46.    We have also considered the authority of Malik v BCCI [1997] IRLR 642 defining the implied term of trust and confidence, being that an employer will not, without reasonable or proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence.

13. It appears that the authorities to which the Tribunal was principally referring at para. 45 were the decisions of this Tribunal in Abbey National Plc v Fairbrother [2007] IRLR 320 and Claridge v Daler Rowney Ltd [2008] ICR 1267.  In both of those cases it was held that, in deciding whether an employee had been constructively dismissed, an employment tribunal is obliged to consider whether the conduct on the part of the employer about which the employee complains fell within the “range of reasonable responses”.  Part of Mr Wynne’s case under this ground, as developed in his skeleton and in oral argument, was based on the submission that the Tribunal had failed to follow those authorities.  By the time of the hearing before us, however, their correctness had been put in doubt by the subsequent decision of this Tribunal, chaired by Judge Clark, in Buckland v Bournemouth University Higher Education Corporation [2009] ICR 1042; and since the hearing the Court of Appeal has upheld that decision and disapproved the reasoning in both Fairbrother and Claridge – see [2010] EWCA Civ 121.  (The delay in the promulgation of this judgment is principally as a result of our wishing to await the outcome of the appeal in Buckland.)  It is now settled that, in deciding whether there has been a constructive dismissal in a case where the breach relied on is of the “Malik term” (as to which, see para. 16 below), an employment tribunal should apply “the unvarnished Mahmud test” (Mahmud is, confusingly, another name for Malik), i.e. to eschew any reference to the range of reasonable responses.  We express at para. 19 below some doubt as to whether the present case should in fact be treated as depending on the Malik term; but that appears to have been the basis on which it was argued before the Tribunal, and it can be seen that on that basis the Tribunal directed itself impeccably.  Indeed it showed commendable good judgment in preferring to go to the fountainhead rather being tempted into drinking from the murkier lower waters of the stream.

14. However, the decision in Buckland does not dispose of the entirety of Mr Wynne’s submissions.  In order to consider his remaining points we need to identify the issues which the Tribunal had to decide and then to consider how it approached them.

15. In any claim of unfair dismissal where the employee relies on constructive dismissal, there are, necessarily, two questions -

(1)  Did the situation fall within the terms of s. 95 (1) (c) of the 1996 Act so as to give rise to a (constructive) dismissal?

(2) Was that dismissal unfair, applying the test in s. 98?

In the great majority of cases, answering the first question will in practice give the answer to the second; but that is not invariably the case, and it is well recognised that there can, albeit rarely, be cases of fair constructive dismissal.

16. The answer to question (1) depends not, as such, on whether the employer has acted unreasonably but on whether he has committed a repudiatory breach of contract (that is what was decided in Western Excavating v Sharp, to which the Tribunal referred) – and, if there is any issue on this, on whether the employee resigned in response to that breach and without affirming the contract.  It is nowadays most common for the breach alleged to be a breach of the Malik term – that is, the term implied in every contract of employment that the employer “will not without reasonable and proper cause conduct himself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee” (see per Lord Steyn in Malik v Bank of Credit and Commerce International SA [1997] ICR 606, at p. 620).  But there can be other kinds of repudiatory breach besides breaches of the Malik term.  Sometimes what the employee is complaining of is a breach of an express term: in Buckland Sedley LJ gives the straightforward example of failure to pay wages – see at para. 28.  In such a case reference to the implied Malik term is unnecessary and indeed inappropriate.

17. As Sedley LJ points out in Buckland, the relevance of whether the employer has acted reasonably to the determinative question of whether he has committed a repudiatory breach will depend on what kind of breach is alleged.  Although the Malik term is not equivalent to a term simply that the employer will behave reasonably, nevertheless in deciding whether it has been breached it will generally be relevant to consider whether the conduct complained of was reasonable: if it was, the employer will generally have “reasonable and proper cause” for it, and, if it was not, that fact is likely to be at least material to the question of whether it was such as to destroy or seriously damage the relationship of trust and confidence between employer and employee.  Thus Sedley LJ (in, again, para. 28 of his judgment in Buckland) describes reasonableness as “one of the tools in the employment tribunal’s factual analysis kit”.  By contrast, if the employer has committed a serious breach of an express term of the contract, it is irrelevant that he may, objectively, have acted reasonably in all the circumstances: he has repudiated the contract, and that is that.

18. The answer to question (2) depends on applying the familiar tests in s. 98, but with the necessary modifications – since there has been no actual dismissal - (a) that the “reason” that has to be identified for the purpose of s-s. (1) is the employer’s reason for the conduct which has been held to be a repudiatory breach; and (b) that it is, likewise, that conduct whose reasonableness has to be considered under s-s. (4) – see Berriman v Delabole Slate Ltd [1985] ICR 546.  Thus reasonableness is always in principle relevant at this second stage of a constructive dismissal claim – see per Sedley LJ in Buckland at para. 29; and in judging reasonableness tribunals must of course in the usual way bear in mind that there may be more than one reasonable course open to an employer – see point 4 in Judge Clark’s summary approved by the Court of Appeal in Buckland (at para. 22).  But of course if the case is one where the employer has at the first stage been held to be in breach of the Malik term, which will normally have involved a consideration of reasonableness (see para. 17 above), it is hard to see how it could be held at the second stage to have been reasonable for him to have acted in the way complained of.

19. The Tribunal’s approach in the present case does not accord with that analysis.  It starts at para. 47 by identifying two questions, both of which it says it has to answer; but those questions are not the two which we have identified at para. 15 above.  Instead, they are, first, whether there was a breach of an express term of the Claimant’s contract; and, secondly, whether there had been a breach of the Malik term.  That approach is wrong because these are not two consecutive questions but, rather, alternative forms of breach.  In the present case it seems to us that the Claimant’s case, properly analysed, was of breach of an express term, i.e. the term in the job description specifying his role (cf. Hilton v Shiner Ltd [2001] IRLR 727), and Malik did not in fact need to be considered; but there might perhaps have been room for argument about that, and there would in any event have been nothing wrong in the Tribunal considering the two ways of putting the case as alternatives.  What was wrong was to treat the two questions as cumulative.  The Tribunal then goes on to say that, even if there had been a breach of an express term, it would not be a fundamental breach if the Appellants were acting reasonably.  That too is, with respect, wrong: a sufficiently serious breach of an express term is a repudiation of the contract, however reasonable it may be, and if the employer wants to rely on reasonableness he can only do so at the second stage.  Most of the following paragraphs are concerned with considering the two questions identified in para. 47.  The Tribunal does in para. 55 very briefly address the real “question (2)”, namely whether the constructive dismissal which it had found was fair; but it deals with it simply by saying that the Appellants had failed to mount any positive case.

20. So far so bad.  But the fact that the Tribunal took the wrong route – which may be less its fault than simply a reflection of the way the case was argued before it – does not necessarily mean that it did not answer the right questions, albeit in the wrong places.  It is in fact in our view clear that the Tribunal did address, and address correctly, both the questions which we have identified in para. 15 above.  As to question (1), if we are right that this was in truth a case of breach of an express term, para. 51 of the Reasons contains a clear and well-reasoned finding that the Appellants had imposed a fundamental change to the Claimant’s job; and even if it is properly to be viewed as a Malik case, the Malik question is asked and answered at para. 54.  As to question (2), it seems to us that the Tribunal’s findings in the paragraphs dealing with its first question, and in particular at para. 54, are equally applicable to the question of fairness arising under s. 98.

21. Against that background, we can deal fairly briefly with those of Mr Wynne’s points which are not directly undermined by Buckland.  They are fourfold.

22. First, at para. 19.1 of his skeleton Mr Wynne says:

… nowhere has the tribunal stated that merely unreasonable conduct is not sufficient to amount to a repudiatory breach of contract.

We do not believe that that is fair.  The Tribunal may not have expressly stated this precise proposition, but its finding of unfair dismissal was plainly not based simply on a finding that the Appellants had behaved unreasonably.  As we have pointed out above, it found in terms both that the Appellants had taken away a core part of the Claimant’s contractual responsibilities and, if this were necessary, that that conduct was without reasonable cause and was such as to destroy or seriously damage the relationship of trust and confidence between them.

23. Secondly, Mr Wynne criticised the fact that at para. 52 of the Reasons the Tribunal, having found that the Appellants had unilaterally removed a core part of the Claimant’s management role, proceeded to ask “whether or not the Respondent behaved reasonably in imposing that change upon him”.  Para. 20 of his skeleton argument says:

That the Respondent’s conduct in the eyes of the tribunal is unreasonable cannot of course amount to a breach of the implied term of mutual trust and confidence.  However that is the investigation it is undertaking.

For the reasons we have already given, an examination of the reasonableness of the Appellants’ conduct was not irrelevant.

24. Thirdly, Mr Wynne submitted that even if it was right to ask the reasonableness question the Tribunal does not answer it.  In his submission, it was a necessary first step for the Tribunal to identify the Appellants’ reason for acting as they did; and he pointed out that the Tribunal expressly made no finding on that point – see the phrase in para. 54 “for whatever reason”.  We do not accept that criticism.  It is perfectly plain that the Tribunal did indeed form the view that the way in which the Appellants proceeded was unreasonable, for the reasons given in paras. 52-54 – i.e., essentially, that even if there were good reasons for getting the Claimant to reduce his workload there were fairer and more sensitive ways of achieving that result.  That conclusion is not directly challenged by the Appellants – rightly, since it is a matter of fact and assessment giving rise to no issue of law.  It was not necessary for the Tribunal, in order to reach that conclusion, to reach a definitive view on what the Appellants’ reason in fact was.  There is no reason in principle why a tribunal cannot assume in the employers’ favour that they have shown an admissible reason for dismissal – or, as the case may be, the conduct which gave rise to a constructive dismissal – but conclude that to act in that way was not reasonable in all the circumstances.

25. Fourthly, Mr Wynne contended that the single sentence in para. 55 of the Reasons where the Tribunal addresses the question of fairness betrays a number of errors.  At para. 24 of his skeleton argument he submits:

  1.  The Respondent had argued that its actions were a legitimate response to the need to reduce the stress and workload on the Claimant. The tribunal has not considered whether this would fall within any of the categories of potentially fair reason for dismissal (and it surely might well fall within the SOSR reason);

2. The sentence places the burden of proving that the dismissal would have been fair on the Respondent, which is contrary to authority and the words of the statute [s98(4) ERA 1996];

3. The tribunal's approach has enabled it to conclude that there was an unfair dismissal without addressing whether the conduct of the Respondent was outside the band of reasonable responses of a reasonable employer. This is the threshold and limitation on a tribunal substituting its own view of whether the behaviour of the Respondent was reasonable (or fair) or not, but the tribunal has not been so restrained.

We accept that the way in which the Tribunal expresses itself in the passage in question is wrong.  But we do not accept that there is any substantive error.  Taking Mr Wynne’s points in turn:

(1) As we have already held, it was not necessary for the Tribunal to make a definitive finding about the reason for the conduct complained of where it had held that the conduct in question was in any event unreasonable.

(2) It is no doubt correct that the Appellants did not seek to advance a justification for the dismissal of the Claimant: since they had not intended to dismiss him it would have been difficult for them to do so.  But the question in a case of constructive dismissal is, as we have already observed, whether it was reasonable for the employer – in the circumstances (including the size and administrative resources of its undertaking) – to take the action in response to which the employee has resigned.  That is a question which the Tribunal had already considered and decided in the Claimant’s favour, albeit at the wrong stage of the argument.  It is perfectly plain that if it had asked itself the same question in the context of s. 98 (4) it would have rejected the Appellants’ case.

(3) It is true that the Tribunal did not at any stage employ the language of the “range of reasonable responses”.  But we cannot regard that as fatal.  It is inherent in the concept of reasonableness, and is now bred in the bone of all employment tribunals, that there will often be circumstances in which more than one course of conduct can reasonably be followed.  There is no reason to believe, simply because the Tribunal did not use the talismanic phrase, that it adopted any narrower approach in reaching its conclusion: cf. our observations in Amnesty International v Ahmed [2009] ICR 1450, at p. 1482G.

26. We accordingly dismiss this ground of appeal.

CONCLUSION ON LIABILITY

27. We dismiss the appeal on liability.  Overall, despite the complexities caused by the structure of the law in this field, the reasons for the conclusion which the Tribunal reached are clear and defensible.  It may well have been the case that the Appellants were justified in believing that the Claimant needed to delegate more work to Ms Miles, both in the interests of the practice and for the sake of his own health.  But the Tribunal was entitled to take the view, having heard the evidence over several days, that the way in which the Appellants generally, and Dr Burton in particular, sought to achieve that outcome not only involved a fundamental breach of the Claimant’s contract of employment but was seriously unreasonable, and that a reasonable employer could and should have sought another and more sensitive way of proceeding.  That is the kind of assessment with which this Tribunal will very rarely interfere.

(B) REMEDY

GROUND 4:  THE CHANCE OF THE CLAIMANT WORKING TO AGE 65

28. At the time of his resignation the Claimant was almost 60, and in fact the period for which he was paid in lieu of notice expired precisely on his 60th birthday.  He was aged 61 and 2 months at the date of the remedy hearing.  His contractual retirement age was 65.  At the remedy hearing the Appellants argued that the compensatory award should be assessed on the basis that his employment by them would have terminated (without unfair dismissal) well before he reached 65, or in any event that a substantial discount should be made for the chance that it might do so.  (That was described before us as a “Polkey” approach – see Polkey v A.E. Dayton Services Ltd [1988] ICR 142.)  They relied on the fact that there had been performance concerns and/or that the Claimant himself was unhappy with the job.

29. The Tribunal rejected that submission.  At para. 9 of the Reasons it dealt with the Claimant’s own unhappiness.  It said this:

It is clearly true that Mr Curry was significantly disenchanted with his job.  Our first decision explains precisely why.  He was supposed to be the Practice Manager, as our first decision sets out, the Respondents over a period of time undermined that authority and then, in our earlier finding, tool away one of his most significant roles, that being the repudiatory breach found by us in that decision.  We have to approach this matter on the basis that the Claimant had not been constructively dismissed by the Respondent, namely that they had respected his contractual entitlement, had not undermined his position and had not sought to erode his management responsibilities.  Had that been the state of affairs we have no doubt that Mr Curry’s enjoyment of this employment would have been significantly enhanced, it was his career of choice, and we have no doubt that he would have continued happily in this employment, good health permitting, until his 65th birthday.

At paras. 10-12 it dealt with specific performance issues, and in particular a mistake made by the Claimant affecting the security of passwords to the practice computers.  The Tribunal found that there was no prospect of any disciplinary process against the Claimant arising out of that mistake: we need not set out its findings on this aspect since they are not challenged in this appeal.  Accordingly it assessed damages on the basis of the Claimant’s lost earnings, and consequent lost pension rights, to age 65.

30. The pleaded challenge to the Tribunal’s conclusion on this issue is again very general, namely:

By finding that the Claimant had a 100 per cent chance of remaining in his employment with the Respondent until he was 65 had he not been unfairly dismissed, the tribunal failed to take into account and/or failed adequately to explain how it had dealt with the evidence suggesting there was a chance he would have been resigned or been dismissed during that period (in circumstances that were fair).

As developed in Mr Wynne’s skeleton argument and oral submissions, however, the challenge focused on the fact that there was evidence of mutual dissatisfaction as between the Claimant and the Appellants quite apart from the events that led to the Claimant’s resignation and the password issue.  Mr Wynne submitted that the Tribunal appears to proceed on the basis that its findings in the liability decision had shown that any dissatisfaction on the part of the Claimant was the result of the Appellants’ undermining of his authority, whereas those findings in fact only dealt with the events of late 2007.

31. We accept that there is an element of telescoping in the way the Tribunal expresses itself in para. 9 of the Reasons.  Its findings on the events leading up to the Claimant’s resignation do not as such dispose of the evidence that he was already unhappy.  But we think that the Tribunal’s overall reasoning is nevertheless clear.  It rightly directed itself that it should proceed on the basis that the Appellants would for the hypothetical balance of the period of the Claimant’s employment have complied with their contractual obligations, and in particular the Malik obligation (and not on some grudging or “minimal performance” basis): an employer cannot of course take advantage of hypothetical future breaches of contract on his own part to limit his liability for compensation.  On that basis it would be surprising if any unhappiness or stresses that the Claimant might have felt would have led him to resign or retire early: working as a practice manager was, as the Tribunal said, the job he wanted to do, and he was highly unlikely to find another similar job, and in particular one with the same pension rights, at the age that he would then have been.  The Tribunal clearly did not believe that such tensions or stresses as had been apparent prior to late 2007 indicated that there was a real chance of his leaving voluntarily, or through stress-related illness, during his last five years.  That conclusion did not, strictly speaking, require a finding as to whether the unhappiness and stresses in question had been caused or contributed to by past “undermining”; but the Tribunal was entitled to take into account, on the basis of what it had found in late 2007, that they may at least have been contributed to by culpable behaviour on the part of the Appellants and to exclude such behaviour in its assessment of the hypothetical future.

32. That reasoning may have been – we are indeed inclined to think it was – rather generous to the Claimant.  Some Tribunals might have concluded that his admitted characteristics – in particular his “workaholism” and vulnerability to stress – raised a sufficient chance that he would not have gone on to age 65, however well the Appellants behaved towards him, to require some discount to the 100% figure for his loss (particularly when taken with the fact that he was being compensated for a future period of almost four years - though an “accelerated receipt” point was not as such relied on by Mr Wynne).  But the “Polkey principle” does not require a nice evaluation of every contingency.  It was within the scope of permissible judgment for the Tribunal to regard the potential discounting factors as insufficiently substantial to require reflection in its award.

33. We accordingly dismiss the appeal on this ground.

GROUND 3:  FAILURE TO APPLY S. 31 REDUCTION

34. The Appellants argued before the Tribunal that the amount awarded to the Claimant should be reduced by at least 10%, pursuant to s. 31 (2) (c) of the Employment Act 2002, because he had failed to pursue any appeal under the statutory grievance procedure.  It is common ground that the Tribunal failed to deal with that issue.  The only difference between the parties is as to the course which we should take in the light of that failure.  Mr Choudhury invited us to deal with the point ourselves - accepting that he could not properly invite us in those circumstances to reduce the award, exceptionally, by less than the “standard” 10% provided for by the section.  Mr Wynne was prepared to accept that proposal, and not to argue for a reduction of more than 10%, only if the case was not otherwise to be remitted.  Since that is in fact what has transpired, it is common ground that we should reduce the award by 10%.  The statutory provisions are different from those governing other forms of deduction/reduction, such as for “contributory conduct”, and it seems to us clear that the reduction should operate on the amount of the actual award which the Tribunal would otherwise have made, i.e. £61,995.  On that basis the reduced award is £55,795.50.  We allow the appeal to that extent.

Published: 12/05/2010 11:57

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