Terminations - Case Round-Up: June 2016

In this month's round-up, Mark Shulman, consultant solicitor with Keystone Law, looks at an unusual case on “constructive dismissal”, the overlap between disability discrimination and conduct dismissals and the European Convention on Human Rights in unfair dismissal cases.

Mark Shulman, Consultant Solicitor at Keystone Law

BREACH OF CONTRACT **Repudiation *Had a football club been in repudiatory breach of contract entitling the Assistant Manager to resign and claim damages when he was in effect demoted in his role? Yes, said the High Court in [Gibbs v Leeds United Football Club ]()*[2016] EWHC 960 (QB).

Interestingly, although the case did not involve ET proceedings at all, the Judge (former EAT President Langstaff J) referred to the issue of whether Mr Gibbs had been "constructively dismissed", when dealing with what was a pure breach of contract claim in the High Court.

Contract term Mr Gibbs had a fixed term contract with Leeds United Football Club as its Assistant Manager. His contract included a term that:

"During the Appointment the Assistant Manager shall:… (b) diligently exercise such powers and perform such duties as may from time to time be assigned to him by the Chief Executive and the Board… in relation to the playing, coaching and scouting aspects of the Company's undertaking…"

Background The Club's Manager left on agreed terms and there was speculation as to whom his replacement might be. Mr Gibbs was accustomed to an environment in which a new manager might be expected to bring in his own assistant (as had happened when he himself joined Leeds).

There was a meeting with Mr Gibbs to discuss his position. The possibility was discussed of the Claimant becoming the Head Coach of Leeds, but Mr Gibbs indicated he was not interested in that role.

At the time of the meeting Mr Gibbs expected to be dismissed (as was common practice in this type of situation when the Manager left), but he hoped that if the former Club Manager obtained a position as a coach elsewhere, he could join him as Assistant Manager. But whilst he would have been prepared to negotiate an early exit, he was still content to remain in post and to continue to observe his contract.

No normal duties Various incidents occurred in relation to Mr Gibbs and his duties:

* he was not on the list of those who were to fly to Italy with first team players for pre-season training; * he was told that he could look after those first team players who were not going to Italy, but there were none (aside from those suffering from injury); * Mr Gibbs was told that he "…could do some cleaning work at the training ground".

He was not assigned work within his contract, although he turned up ready and willing to do such work. He complained that he was being left with nothing to do and was unhappy about his situation. Mr Gibbs indicated that he wished to be provided with proper work befitting his status as Assistant Manager but if not, there had to be a solution which would see him leaving employment on agreed terms.

Further incidents followed:

* the football staff had a meeting at the training ground, but Mr Gibbs was not invited to attend; * the day after the first team had left to head for the pre-season training in Italy, Mr Gibbs was told that he was to work as assistant to the head of Young Player Development; * when he requested new training kit for the forthcoming season, none was available specifically for him: he was issued instead with kit from the previous season; * though Mr Gibbs watched the first team training after the players returned from Italy, he was not invited to participate; * no training schedules were issued to him - something which had not previously happened.

The Club Secretary telephoned Mr Gibbs at home to tell him that he was shortly to receive an email telling him that his future role was to be with Under-18 and Under-21 players (neither group consisting of first team players). The email stated that:-

"…with immediate effect you are to have no contact and/or involvement with the LUFC First Team and your role at the Club should be confined to working with the Under 21s , Under 18s and other non-first team players…".

The following day Mr Gibbs was told by the head coach/manager of Leeds that he did not want Mr Gibbs to have any contact with the first team and that he did not want him at the Club at all.

Two days later Mr Gibbs resigned with immediate effect on the basis that Leeds had shown they were not prepared to honour his contract.

Liability The key issue was whether Mr Gibbs was "constructively dismissed" by reason of a repudiatory breach of contract by Leeds, or whether he simply chose to go without there being any such breach.

The High Court confirmed that "what is critical for liability is whether the Defendant was in breach of contract, whether the breach was repudiatory, and whether the Claimant resigned at least in part in reliance on the breach without first choosing to affirm the contract rather than elect to treat it as terminated".

Duties as manager The precise duties of an Assistant Manager were not spelt out in the contract of employment between the Claimant and Leeds. However, the evidence was all one way. An Assistant Manager of a league football club was to be involved in the selection, tactics and training of the first team. That is what the Claimant had done since his first appointment to Leeds in 2013. No witness suggested that an Assistant Manager could simply be expected to hold a titular post, but perform work of any description as directed by the employer.

Even if it were to be suggested that the Assistant Manager was obliged to work at the reasonable direction of his employer, the High Court did not consider that it would be reasonable to require a manager and coach who had previously worked with the first team to have no contact with them, but instead to work only with the Under 18s and Under 21s under the direction of somebody else. The loss of status would be plain not only to the parties, but to others with whom Mr Gibbs had to deal. To require Mr Gibbs to work as directed by the 23 July email was to show an intention thereafter to refuse to perform the contract as it had originally been made.

Repudiatory breach Where objectively viewed, one party to a contract showed by their conduct that they no longer intend to be bound by it in its essential terms, that constituted a repudiatory breach.

Even though Mr Gibbs had from time to time expressed the view that he was prepared to leave Leeds if suitable terms could be agreed, that was beside the point; his action did not prevent Leeds from being in breach of contract. It was not a breach of contract for Mr Gibbs to initiate discussions about a possible consensual termination and he had remained willing (and keen) to fulfil his contractual duties as the Assistant Manager.

The High Court stated that in any event, had it been necessary to do so, it would have found that the conduct of the Club taken overall still amounted to a repudiatory breach of contract, quite apart from the 23 July email to Mr Gibbs.

Resignation in response The Court found that Mr Gibbs had resigned in response to the 23 July email as that "is what one would expect a self-respecting person…to do."

Accordingly, Mr Gibbs was entitled to damages of £331,426.05 for the breach of contract (subject to any adjustment required in respect of a prospective bonus).

**UNFAIR DISMISSAL Gross misconduct** Was an ET right to dismiss a claim of unfair dismissal for gross misconduct when an employee became angry at his employer's failure to accommodate his needs as a disabled person? No, said the EAT in [Risby v London Borough of Waltham Forest ]()UKEAT/0318/15/DM.

Background The Claimant was seriously physically disabled by reason of paraplegia. He also had a short temper, which was not related to his disability.

The Claimant was employed by Waltham Forest Council who decided to hold a workshop in a venue to which there was no wheelchair access. The Claimant lost his temper about the decision to use that venue and was summarily dismissed on account of his conduct after the Council concluded that he had used offensive and racist language twice and behaved unacceptably towards managers and work colleagues and had behaved in a harassing manner towards one colleague.

The ET dismissed his claims of unfair dismissal and disability discrimination (the latter under section 15(1) of the Equality Act 2010), saying that his short temper was a personality trait not an illness and there was no logical connection between his behaviour and the fact that he was wheelchair bound. Therefore there was no direct linkage between the Claimant's physical disability and the behaviour for which he was dismissed.

*Was dismissal proportionate? *The Claimant's appeal focussed on the issue as to whether dismissal was a reasonable and proportionate sanction. His case was that under Section 98(4) of the Employment Rights Act 1996, the relevant test for an ET is whether:

"(a) … in the circumstances … the employer acted reasonably or unreasonably in treating [the reason for dismissal] as a sufficient reason for dismissing the employee …"

Causes of short temper The EAT held that on the ET's own analysis of the facts, this was a case in which there were two causes of the conduct that gave rise to the dismissal. The Claimant's misconduct was the product of (i) indignation caused by the Council's decision to hold the workshop in a venue to which he could not gain access (and therefore his disability was an effective cause of that indignation and so of his conduct), and (ii) his separate personality trait of having a short temper (which did not arise out of his disability).

In concluding that "…there was no direct linkage between the claimant's physical disability and his behaviour…for which he was dismissed. …", the ET had erred in law. This was because a section 15 Equality Act claim for discrimination could be made out on the basis of the loose test established by case law that all that had to be shown was that the Claimant's conduct arose "in consequence of" his disability.

Accordingly, this had a knock-on effect in that when considering the issue of reasonableness of the Council's decision to dismiss (for unfair dismissal purposes), the ET had said:

"…The tribunal was disturbed by [the] response that there was nothing the claimant could have said to affect the outcome, but having considered it we do not consider that this takes the process as a whole outside the band of reasonable responses… Essentially, what he was raising was not a defence but mitigation: mitigation that might, in principle, with a more lenient view have led to a final written warning."

The EAT considered that this part of the ET's decision was an apparent acknowledgement that if the Claimant's conduct had arisen out of his disability (in the way outlined above), there would have been an alternative to summary dismissal open to the Council (i.e. a final written warning). In that context, the view by the Council that there was nothing that the Claimant could have said to affect the outcome in terms of his dismissal, was not a response open to a reasonable employer.

This was therefore capable of affecting the ET's decision on the reasonableness of the decision to dismiss. Accordingly, the decision of the ET was set aside and the case remitted for a further hearing.

**HUMAN RIGHTS Article 8 ECHR** Did an employee have a reasonable expectation that private material obtained in a police investigation would be kept from his employer when investigating alleged misconduct? No, said the EAT on the facts in [Garamukanwa v Solent NHS Trust ]()UKEAT/0245/15/DA.

Background The Claimant was employed by the Solent NHS Trust and had a relationship with a female member of staff, Ms Maclean. After that relationship finished, Ms Maclean formed a relationship with a woman in the same workplace, Ms Smith, about which the Claimant was unhappy. There was then what appeared to be a vendetta by an unidentified person against Ms Maclean and Ms Smith over a period of some 10 months, including a fake Facebook account being set up in the name "Ms Smith", to which the names of approximately 150 work colleagues were added and anonymous emails being sent from various different email addresses to members of the Trust's management. This had the effect of causing distress to Ms Maclean and Ms Smith, as well as causing concern and disruption to management. Ms Maclean was becoming concerned that the Claimant had been harassing and stalking her and following further incidents she made a complaint to the police. The Claimant was arrested but no charges were brought against him.

*Police material *The Trust's internal investigation included the use of material disclosed by the police from their inquiries, including a witness statement prepared by Ms Maclean and the record of an interview with the Claimant. The material also included copies of photographs found by the police on the Claimant's iPhone of Ms Maclean's home address and also a photograph of what appeared to be a sheet from a notebook which contained details of the email addresses from which various malicious emails had been sent.

After a disciplinary hearing, the Trust dismissed the Claimant on the basis that he was guilty of gross misconduct warranting summary dismissal. This was principally in reliance upon the photographs on the Claimant's iPhone from which the Trust considered the Claimant was responsible for sending at least some of the various malicious emails.

Alleged breach of Article 8 At the ET the Claimant argued that the Respondent had acted in breach of the Human Rights Act 1998 ("HRA") and Article 8 of the European Convention on Human Rights by failing to respect the Claimant's right to a private life and by examining matters that related purely or essentially to the Claimant's private life and had used evidence in relation to such matters to justify its decision to dismiss.

Article 8 of the Convention provides that:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  1. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The ET concluded that Article 8 of the European Convention on Human Rights was not engaged because:-

(i) the conduct of the person sending anonymous emails had had an impact on work related matters and the employment relationship between the person responsible for doing that and the Trust;

(ii) the emails were sent to work addresses of recipients and in part dealt with work related matters;

(iii) employees of the Trust suffered distress as a consequence and to an extent that could have an adverse effect on work they were performing in the course of their duties;

(iv) the judgement of the person responsible for sending malicious emails was properly brought into question as a proper concern for the Trust to have about a person in a senior position;

(v) the Trust was entitled to take a serious view of the actions of that person.

The ET was unanimously satisfied that the Trust was entitled to form the conclusion on the balance of probabilities that the Claimant was responsible for at least some of the emails. They were, in the ET's judgment, not seriously disputed by the Claimant, of a malicious and improper nature and the fact that they were anonymous was in itself an aggravating feature which was likely to cause alarm and distress to the recipients.

The ET found that the Trust's decision to dismiss (having justifiably concluded that the Claimant was responsible for the specified emails), was within the range of reasonable responses for a reasonable employer and was therefore fair.

The Claimant appealed on the basis that he had a reasonable expectation that the private material would remain private and that Article 8 was accordingly engaged.

He contended that the emails and other material he sent, together with various photographs were entirely private and personal. While the police had a right pursuant to the derogation of criminal law enforcement to look at his private emails, the Trust, he argued, had no such right. His case was that without the private material, in particular the photographs found on the iPhone, the dismissal would not have been upheld as fair.

Was Article 8 engaged? Was Article 8 engaged at all? No, said the EAT (agreeing with the ET). Although the aspects of private life capable of falling within Article 8 were potentially wide (extending to private correspondence and communications including potentially, emails sent at work where there is a reasonable expectation of privacy), whether or not there was an expectation of privacy in an individual case must depend upon the circumstances of each case: a fact sensitive issue.

The case that the ET was addressing and in which any Article 8 rights had to be considered was a disciplinary investigation into matters that, whilst they related to a personal relationship with a workplace colleague, were brought into the workplace by the Claimant himself and gave rise to work-related issues. The emails of particular concern were published to colleagues at work email addresses. The publication of those emails had an adverse consequence on other employees for whom the Trust had a duty of care and raised issues of concern so far as the Trust's own working relationship with the Claimant was concerned. These were all features that entitled the ET to conclude that Article 8 was simply not engaged because the Claimant had no reasonable expectation of privacy in respect of the "private" material.

It was correct that the ET had not distinguished between (i) the private material (the emails sent to private email addresses and photographs obtained from the Claimant's iPhone) and (ii) the anonymous malicious emails sent to work email addresses, but had treated all of the material together and in the same way without distinction. However, that did not matter because all of the material was regarded as relevant to the criminal investigation and was handed over as such.

Also, it was noteworthy that the Claimant had not at any stage objected to the use of or reliance on any of the material when faced with the employer's internal investigation and disciplinary proceedings.

From the date when Ms Maclean complained about what she considered to be a harassing email from the Claimant, it was difficult to see how the Claimant could have had any further expectation of privacy when sending emails to her. From that time onwards there must have been an expectation that she would complain of feeling harassed by his ongoing correspondence with her and he could have had no expectation of controlling when and where she complained or what she did with emails sent to her. In any event, the content of the emails sent to Ms Maclean's private email address was not purely personal and strayed beyond the Claimant's private feelings towards Ms Maclean, touching on workplace issues as well.

The ET was therefore fully entitled to conclude in relation to all of the material provided to the Trust by the police following the criminal investigation that the Claimant had no reasonable expectation of privacy in that material. That conclusion was open to the Tribunal and meant that Article 8 was not relevant in the circumstances.

Although it was unnecessary for the EAT to express any concluded view on Article 8.2, it commented that there were findings that would amply support a conclusion that any interference with the Claimant's Article 8 rights was justified by the Trust's need to protect the health and welfare of other employees and to ensure that they could go about their employment free from harassment.

The appeal was dismissed and an application to appeal to the Court of Appeal was refused on the basis that the EAT was "not satisfied that there is any arguable ground of appeal with reasonable prospects of success to justify granting permission".

_________________________ Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator. His blog on new employment legislation can be found here.

Published: 13/06/2016 12:16

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