The Carphone Warehouse Limited v Martin UKEAT/0371/12/JOJ

Appeal against a finding of constructive unfair dismissal and failure to make reasonable adjustments for the claimant’s disability. Cross-appeal against the rejection of the claimant’s claim of direct disability discrimination. Appeal allowed in part, cross-appeal dismissed.

The claimant suffered from mental health problems which amounted to a disability under the DDA. He was suspended for misconduct in November 2009 and was still suspended a year later when he resigned. He claimed first constructive unfair dismissal on the grounds of the behaviour of the respondent. The claimant also made disability discrimination claims based on 'reasonable adjustments' arising from a failure to pay his correct pay and failing to deal with the claimant's suspension which related to the claimant's bankruptcy and his position regarding the FSA. The ET found in his favour on both issues but rejected his direct disability discrimination claim. The respondent appealed and the claimant cross-appealed.

The EAT dismissed the constructive dismissal appeal as this was a classic case of a course of conduct culminating in a last straw which amounted to a repudiatory breach of contract in response to which the claimant resigned, and the ET's conclusions in this respect were not ones that no reasonable Tribunal could reach. The EAT allowed the appeal on the reasonable adjustments issue - neither the failure to exercise care on pay or to make proper progress on the suspension could be described as a "provision, practice or procedure applied by the employer" and nor could the exercise of care or the speeding up of the disciplinary process be described as the "taking of steps" so as to bring the case within section 4A of the DDA. The claimant's cross appeals on various other findings of the ET raised no points of law. ________________

Appeal Nos. UKEAT/0371/12/JOJ

UKEAT/0372/12/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 11 & 12 February 2013

Before

HIS HONOUR JUDGE SHANKS, MR B R GIBBS, MRS M V McARTHUR FCIPD

THE CARPHONE WAREHOUSE LTD (APPELLANT)

MARTIN (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR EDWARD HUTCHIN (of Counsel)

Instructed by: The Carphone Warehouse Group Plc Legal Department 1 Portal Way London W3 6RS

For the Respondent No appearance or representation by or on behalf of the Respondent

**SUMMARY**

UNFAIR DISMISSAL – Constructive dismissal

DISABILITY DISCRIMINATION – Reasonable adjustments

Claimant suffered personality disorder and was disabled for the purposes of DDA. He was suspended for misconduct in November 2009 and was still suspended a year later when he resigned.

The Employment Tribunal found in his favour on disability discrimination claims based on "reasonable adjustments" arising from a failure to pay him correct pay and failure to bring an end to suspension by July 2009. The EAT found that this was misconceived: neither the failure to exercise care on pay or to make proper progress on the suspension could be described as a "provision, practice or procedure applied by the employer" and nor could the exercise of care or the speeding up of the disciplinary process be described as the "taking of steps" so as to bring the case within section 4A of the DDA.

The ET also found that he had been constructively (and unfairly) dismissed. The Respondent's appeal against that finding was rejected: this was a classic case of a course of conduct culminating in a last straw which amounted to a repudiatory breach of contract in response to which the Claimant resigned, and the ET's conclusions in this respect were not ones that no reasonable Tribunal could reach.

The Claimant's cross appeals on various other findings of the ET raised no points of law.

**HIS HONOUR JUDGE SHANKS****Introduction**
  1. Following a five day hearing in North Shields at which the Claimant in this case represented himself, the Employment Tribunal found that the Respondent, The Carphone Warehouse, had constructively dismissed him and that they had discriminated against him on grounds of disability by failing to make reasonable adjustments in two respects, which we shall explain later in this Judgment. The Employment Tribunal also rejected the Claimant's claims of direct disability discrimination and some other indirect disability discrimination claims that had been proposed. The disability discrimination claims are set out at paragraph 2 of the Judgment. The Carphone Warehouse appeals, and the Claimant, Mr Martin, cross appeals. We received skeleton arguments from both parties, but Mr Martin did not attend the appeal hearing in person. The Carphone Warehouse were represented by Mr Hutchin of counsel, as before the Employment Tribunal.
**The facts**
  1. We first summarise the facts, basing our summary on the Employment Tribunal's commendably full, clear and thorough findings of fact. Mr Martin was born in 1977. He has a long history of psychiatric difficulties dating back to his teens. In March 2004 he started therapy with a Dr Page, who confirmed a diagnosis of borderline personality disorder. Before the substantive hearing before the Tribunal The Carphone Warehouse had conceded that he had a disability for the purposes of the Disability Discrimination Act (DDA). He started to work for them on 14 June 2004. The Employment Tribunal accepted his evidence that he had told a Mr Simmons of The Carphone Warehouse about his condition at the time he was recruited. That was a finding that Mr Hutchin complained of; however, it is clearly not one that can be open to attack in this Tribunal.
  1. In spite of his condition the Claimant did well, initially as a branch manager. In April 2008 a new regional manager, Mr Scott, was appointed. In due course Mr Martin had complaints about Mr Scott's conduct and said that he was a bully. In June 2008 the Claimant was moved to a larger and more problematic branch as branch manager. He was, it seems, put under considerable pressure by Mr Scott in relation to targets. In December 2008 the Claimant's marriage broke down. Mr Scott was told of this and of his financial problems, though at this stage Mr Scott was not aware of the Claimant's psychiatric issues.
  1. In October 2009 the Claimant was contemplating making himself bankrupt. He informally approached someone called Ms Nesbit of The Carphone Warehouse and asked her if this would affect his employment. She advised him to be open and honest about it with his managers, but she did not mention, because it seemed she did not know, that bankruptcy could have an important effect on his employment because part of the job involved selling insurance, which is an area of business supervised by the Financial Services Authority. The Employment Tribunal found that the Claimant told Mr Scott on 29 October 2009 that he was then bankrupt. Again, it seems Mr Hutchin regarded that finding with distaste, but it cannot be impugned in this Tribunal.
  1. On 6 November 2009, following an internal investigation, the Claimant was suspended by Mr Scott. He was told that the allegations for which he was suspended were (Judgment, paragraph 27):

"[…] breach of company's trade in policies specifically resulting in personal gain; removal of merchandise not owned by yourself on company premises; inappropriate behaviour of a line manager specifically influencing or instructing employees in store and other stores in region 107 to use their debit cards to provide the Claimant with cash and therefore breaching trade in procedures."

We add that Mr Hutchin explained a little further in the course of the hearing that what Mr Martin had apparently been doing was taking possession of phones that had been traded in by customers of The Carphone Warehouse, which he should not have been doing.

  1. The suspension affected the Claimant's mental health badly, and he was initially certified sick. On 29 January 2010 human resources, in the person of Ms Wilkes, referred to Mr Martin's GP, and she stated this (Judgment, paragraph 31):

"Simon was suspended from duty on 6 October 2009 (sic) [that should read November 2009] and subsequently produced a sick note to confirm that he was unwell and could not attend the pending disciplinary meeting. Simon is currently absent from work due to mental health issues and we need to understand if Simon is well enough to attend the disciplinary meeting and also what we can do to help and support him during his absence. We want to resolve the situation ASAP and feel it is in the best interests of all parties to proceed with a disciplinary Hearing and your advice is required with regard to this."

A Dr Kumar came back on 15 March 2010, and he advised that the Claimant was fit to meet management in the context of a disciplinary process and indeed fit to return to work, provided it was done in a phased manner. He also said that in his view the Claimant may be disabled within the terms of the DDA. The Tribunal remarked that at this stage the position was reasonably optimistic.

  1. On 29 March 2010 Mr Scott instructed the human resources department of The Carphone Warehouse to recall the Claimant's pay for the month of March, although his pay had already been processed because he was concerned that the amount might include some element of overpayment. We need not go into the details of the amount of pay that the Claimant was in fact due and what was being paid to him, but it seems that throughout the whole dispute about pay The Carphone Warehouse's position was wrong and Mr Martin was correct. There was no warning given to Mr Martin that his pay for March was going to be stopped, and he was given no explanation as to why it had been stopped before that happened. The stopping of his pay had very serious effects on his mental health.
  1. On 6 April 2010 Mr Martin put in a 14 page grievance. He complained about Mr Scott's behaviour and bullying, he referred to his bankruptcy, he complained that he had yet to receive a disciplinary hearing or indeed a suspension letter, and later in the month he complained separately that the delay in the disciplinary hearing was having a bad effect on his mental health. Notwithstanding that, a grievance hearing was not arranged until 29 June 2010, and it was dealt with by a Ms Cole. The Employment Tribunal were not impressed with the way that Ms Cole carried out the grievance hearing, and they were not impressed by the fact that the grievance and the disciplinary matters were dealt with separately. The disciplinary hearing was not arranged until 26 July 2010, with a Mr Burke. At that hearing the Claimant accepted that he had not dealt with the trade in of phones properly, but he drew attention to the pressure that Mr Scott had been putting him under. On 29 July 2010 – that is, a month after the grievance hearing – Mr Martin was written to about the outcome of the grievance hearing. Ms Cole did not deal with all the points that he had raised but did uphold some of his complaints about Mr Scott and upheld his position in relation to pay deductions referred to above.
  1. On 31 July 2010 – so, just two days after Ms Cole's letter upholding the Claimant's position on his pay – he was given his pay slip for July, and again it was wrong. It is clear that the Employment Tribunal were extremely unimpressed by this. The error was corrected by a payment of a further £666 into the Claimant's account on 11 August 2010, but the initial failure caused Mr Martin a further relapse in his mental health.
  1. In the meantime, on 9 August 2010 Mr Burke wrote to the Claimant with his disciplinary findings. He found the Claimant guilty of gross misconduct, but, in view of his mental-health issues, he issued him with a final written warning and a demotion. He ended by saying this, in relation to suspension (Judgment, paragraph 57):

"Unfortunately I am unable to lift your suspension and must advise you that you will remain suspended on average earnings as we must carry out an investigation into the issue of your bankruptcy. Due to FSA regulations we have no option but to formally investigate any colleague who is declared bankrupt when employed in a regulated role. This matter will be investigated by an independent manager as soon as possible."

  1. The Claimant appealed against the decision on the disciplinary hearing, and he also raised in August 2010 the effect that the suspension was having on his mental health. In a letter dated 1 September 2010 he was told by a Ms Healy that there was no alternative to suspension for bankruptcy due to FSA regulations but that this needed to be discussed and she would seek alternative roles. The only possible non regulated roles, the Tribunal said, were in Preston and Warrington, neither of which were commutable from the Claimant's home.
  1. On 9 September 2010 Mr Martin made an application to the Employment Tribunal, and that was the originally formulated claim in this case. He made claims for his wages, and he made claims of direct disability discrimination arising out of Mr Scott's actions. Ms Lowry was appointed to hear both the grievance and the disciplinary appeals on 1 October 2010. Following the hearing on 1 October she made further investigations, and the Employment Tribunal seem to have regarded her progress as rather slow.
  1. A further meeting was arranged for 28 October 2010 with a Mr Watson to discuss the suspension from work because of the bankruptcy. We quote from the decision, at paragraph 64, where the Tribunal say this by way of background:

"Also on 14 October Ms Lowry emailed a number of questions to Mr Scott, Mr Birk [sic] and Ms Cole. She did not seek to investigate any matters relating to the bankruptcy, the alleged inconsistency with Mr Henson or the knowledge held by Mr Scott or Respondent about the Claimant's bankruptcy. On 15 October Ms Healy acknowledged the Claimant's grievance about his bankruptcy suspension and provided to him an extract from the relevant guidance for firms undertaking mediation insurance activity (which the Respondent undertook through its selling of product related insurance). This provided that a firm must ensure, in considering whether a person is of good repute (and therefore permitted to undertake that activity) that the person has not been adjudged bankrupt (unless the bankruptcy has been discharged). The Claimant's reply to that email suggested he maintained the FSA were fine with him selling insurance and that the Respondent's position was continuation of a campaign of bullying and discrimination. Ms Healy then informed the Claimant that it was his responsibility to obtain and produce a certificate of discharge from bankruptcy, if that was the case. She also confirmed that the meeting with Mr Watson was to discuss a return to work."

It was the Claimant's position that the FSA did not require him to produce a discharge certificate, and in the meeting with Mr Watson he asked Mr Watson to call the FSA there and then to clarify that issue. The Tribunal then describe what happened at the rest of the meeting at paragraph 67 of the decision:

"After a forty five minute adjournment in which Mr Watson tried to contact the Respondent's legal department to get contact details for the Respondent's contact in the FSA, without success, Mr Watson explained to the Claimant that he wished to go through the official channels to answer his questions. He said he would adjourn the hearing and then write to the Claimant with answers to those questions. He then went on to say that if the FSA confirmed the Respondent's understanding of the regulatory position, then he would have no alternative but to invite the Claimant to a disciplinary unless he provided a discharge certificate. He encouraged him to get written confirmation of his own claims about the FSA position, which could be used at a subsequent disciplinary. The meeting ended on good terms, given the Claimant's trust in Mr Watson as an individual, but on 31 October the Claimant emailed to Ms Healy to give his notice to terminate his employment."

  1. We now quote the terms of his email, so far as is material:

"I am writing this email to give you my notice. I have 4 days holiday from 2009 and should have 22 days so far from 2010.

My reasons for this course of action will not be a surprise.

In the meeting I had with Andy Watson I asked him to contact the FSA there and then. He proceeded to go through CPWs legal team instead of calling them himself and what a coincidence, nobody could get hold of them. You must think me very naïve to believe that those are the actions of an independent arbiter. I also wanted answers. I didn't get any. My reasons for not supplying you with the information you asked for was covered in that meeting, but I would like to add that it is also due to the fact that every item of information that I requested has been ignored.

At the end of the meeting, instead of receiving support, I was threatened with yet more disciplinary action if I failed to supply CPW with information that is not their business to know.

I am fed up of this game! This is my life! Of which you have helped yourself to wasting a year of. I do not believe for one minute that the outcome of every meeting that I have had with members of CPW, has not been decided in advance.

I have been punished for having Honesty, Integrity, Dignity and Honour. Those values quite clearly clash with CPW head office 'cloak and dagger' values.

CPW has made it IMPOSSIBLE for me to actually return to work. You have left me with no alternative. I will now be seeking compensation for illegal constructive dismissal on top of disability discrimination, bullying and breach of contract."

  1. In that email it is clear that he relies on two points arising out of the meeting of Mr Watson, namely Mr Watson's failure to phone the FSA there and then and his threat of disciplinary action arising out of the bankruptcy, and it is clear that he also relies on the fact, as he sees it, that The Carphone Warehouse had "wasted a year of his life"; that, properly construed, it seems to us, is a reference, really, to everything that has gone before following his suspension.
**The appeal**
  1. That is the factual background; we turn now to The Carphone Warehouse appeal so far as it relates to the disability discrimination claims that were upheld by the Employment Tribunal. Those are set out at paragraphs 2(c) (the wages payment on 31 July 2010) and 2(d) (which relates to keeping to a reasonable minimum the length of time spent by the Claimant on suspension) of the decision.
  1. The disability discrimination claim in relation to pay related to both the March and July 2010 wage payments. So far as March 2010 is concerned, the Employment Tribunal found that that claim failed because The Carphone Warehouse at that stage could not reasonably have anticipated the effect of their mistake in relation to March 2010 on the Claimant. However, the claim in relation to the July wages succeeded. In effect, the Employment Tribunal found that it was incompetence on the part of The Carphone Warehouse that led to the underpayment on that occasion and that The Carphone Warehouse should have anticipated that their failure to get his pay right on that occasion would have caused the Claimant further mental ill health.
  1. The law in relation to disability discrimination based on failure to make reasonable adjustments is set out at paragraph 69.10 of the decision, and it is contained in section 4A of the DDA:

"(1) Where—

(a) a provision, criterion or practice applied by or on behalf of an employer, or

(b) any physical feature of premises occupied by the employer,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect."

  1. What the Employment Tribunal found, in effect, was that the lack of competence or understanding by The Carphone Warehouse in preparing the Claimant's wage slip for July 2010 was capable of being a "practice" within the terms of section 4A and that the reasonable step that they should have taken was the step of not delaying payment of the correct amount of pay. Mr Hutchin says, in effect, that this approach is misconceived. We are afraid we agree with him in this contention, for two related reasons. First, a lack of competence in relation to a particular transaction cannot, as a matter of proper construction, in our view amount to a "practice" applied by an employer any more than it could amount to a "provision" or "criterion" applied by an employer. Secondly, the obligation created by section 4A is to take steps, or such steps as are reasonable. However it is phrased, what the Employment Tribunal were saying, in effect, was that The Carphone Warehouse had failed to take proper care in preparing Mr Martin's pay packet in July 2010. Taking care cannot be properly described, in our view, as taking a step or steps for the purposes of section 4A(1) of the DDA. What the Employment Tribunal is seeking to do, perhaps understandably, is to give the Claimant a remedy for what they regard as rather egregious incompetence by The Carphone Warehouse, but we do not think the facts can be shoehorned into the relevant provisions of the DDA. Therefore, that finding of discrimination, in our view, cannot stand.
  1. The second DDA claim that was upheld by the Employment Tribunal relates to the length of the Claimant's suspension, which, by the time of his resignation, was 12 months, something that the Employment Tribunal clearly regarded as wholly excessive and as largely being the fault of the Respondent. In this context, they made the following findings, which are at paragraphs 83 and 84:

"83. […] the Tribunal considers that again, given the relatively optimistic occupational health report following the assessment in mid March, it is extraordinary that the process for the Claimant was so protracted with such unfortunate results. Part of this is undoubtedly the Respondent's woeful lack of application. For example, the only steps taken by Ms Cole between her meeting with the Claimant on 29 June and her outcome letter of 29 July 2010, were a telephone call with Mr Scott (unminuted) and unsuccessful attempts with Ms Healy to address pay issues (unminuted). Those steps do not explain or justify a month going by, even allowing for the considerable pressures of Ms Cole's role as a regional manager. Nor was the Claimant provided with an update. Whilst in the early months of the Claimant's suspension slippage might have been reasonable, as the months wore on, the Tribunal considers that slippage in timescales became less reasonable because its impact was cumulative.

84. Finally on this issue, the Tribunal considers the introduction of a separate step or process to discuss bankruptcy as wholly unnecessary. The Respondent's employee relations department had known since April 6 of the bankruptcy and nobody brought its impact to the Claimant's attention. He discussed it with Mr Burke and Ms Lowry in his meetings with them and neither of them drew the Respondent's regulatory position to his attention. Nor did Ms Lowry seek to deal with the matter with him despite it being plain from his comments that he considered the Respondent was delaying matters deliberately. Given the scant investigations undertaken for both the grievance and the appeal, the Tribunal considers that to have progressed matters in order that all issues had been resolved at the latest by the end of July 2010, was a reasonable adjustment and step for the Respondent to have taken. Would avoiding delay have avoided the acute impact on the Claimant of deteriorated mental health? We did not have direct medical evidence on this point but on the balance of probabilities and given the Tribunal's industrial experience and common sense, we consider that it would have (in the language of the Act). It would also have lessened the chance of the Claimant losing trust in the Respondent and given an opportunity for Ms Lowry's recommendations as to redeployment or mediation to have been implemented. There would also have been the possibility of calm discussion of the bankruptcy and the consideration of temporary adjustments to store arrangements rather than redeployment to Preston or elsewhere. Engaging in further assessment about the possible train of events had delay been avoided is a matter for Remedy."

  1. Again, we consider the upholding of the DDA claim based on those findings as misconceived, for similar reasons as in relation to the pay matter. First, incompetence or a woeful lack of application, or a failure to stick to your own time limits, cannot, in our view, be properly characterised as a "provision, criterion or practice applied" by an employer. Secondly, avoiding delay cannot be characterised as the taking of steps. So, for very similar reasons as we have already explained on the other disability discrimination claim, we consider that the findings of the Employment Tribunal at paragraph 2(d) cannot stand.
  1. That brings us to the unfair dismissal claim based on a constructive dismissal. The law on constructive dismissal is set out very fully at paragraph 69.2 69.7 of the Employment Tribunal's decision. None of that law was criticised or even referred to by Mr Hutchin. We shall just refer to some of the quotations that the Tribunal themselves referred to. First of all, they noted the four conditions that must be met for a successful constructive dismissal claim:

"(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify her leaving. […]

(3) He must leave in response to the breach and not for some other, unconnected reason.

(4) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract."

The Tribunal also set out the implied term that comes from the House of Lords decision in Malik:

"The employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee."

They also set out a short couple of sentences approved by the House of Lords in relation to that term as follows:

"In assessing whether there has been a breach, it seems clear that what is significant is the impact of the employer's behaviour on the employee rather than what the employer intended. Moreover the impact will be assessed objectively."

They then set out a series of propositions from the decision in Barke, a decision of this Tribunal:

"(1) Where in a constructive dismissal case a course of conduct culminating in a last straw on the part of the employers is relied upon as amounting to a fundamental breach by the employer of the implied term of trust and confidence, the tribunal must consider whether the course of conduct cumulatively amounts to such a breach; it is not necessary for each individual incident which makes up the course of conduct or the last straw to be of itself a breach of contract (Lewis, Meikle). The question is – does the cumulative series of acts or omissions taken together … amount to a breach of the implied term;

(2) The conduct which is said to constitute the last straw need not be unreasonable or blameworthy; but it must contribute something to the breach of the implied term, although what it adds may be relatively insignificant; but it will not be sufficient if the last straw is an entirely innocuous act (Omilaju);

(3) The employee must leave in response to the repudiation; but it is enough that the employee resigns at least in part in response to the repudiation; the repudiation does not have to be the effective cause of the resignation (Meikle).

(4) The test as to repuditory [sic] conduct is objective (Lewis, Meikle, Omilaju); […]"

Finally, the Employment Tribunal also refer to the case of Horkulak, which recognised that the law about implied trust and confidence has developed to the extent that the employment contract engages obligations in connection with the self esteem and the dignity of the employee.

  1. We would add to those propositions the proposition that on an appeal like this an Appellant, The Carphone Warehouse in this case, can only succeed if it shows that no reasonable Tribunal could have reached the decisions that it did in relation to breach, repudiation and the other matters that a Claimant has to establish for a constructive dismissal claim.
  1. The first issue on a constructive dismissal claim is whether there was a repudiatory breach of contract. This is dealt with by the Employment Tribunal at paragraphs 85 87 of the decision:

"85. We have set out at some length the legal principles that guide us in our consideration of this issue. The Respondent said the Claimant could not make out a course of conduct which cumulatively breached trust and confidence because the actions of Mr Scott were unrelated to the delays in process; he also had nothing to do with the 31 July pay delay; and his treatment of the Claimant was unrelated to the way in which the Respondent dealt with the Claimant's bankruptcy or the meeting with Mr Watson. We are required to consider objectively the impact on the Claimant of the Respondent's treatment, rather than what was intended. There is no need for us to consider matters further back in the chronology for this assessment, or indeed the actions of Mr Scott. For completeness, however, we consider that the imposition of informal sales targets and the Claimant's initial suspension did not amount to breaches of trust and confidence on the Malik test. The 31 March pay stoppage is also in the Tribunal's view, just the right side of the Malik threshold on reasonable and proper cause.

86. In contrast, it will be apparent from our findings above in relation to reasonable adjustments that we consider the 31 July pay failure to be conduct without reasonable and proper cause which is likely to seriously damage trust and confidence, given the chronology above. Equally we consider the delays in [the disciplinary and grievance procedures and the continuing suspension] referred to above as similar conduct, which were continuing at the meeting with Mr Watson (see the Claimant's enquiry as to Ms Lowry's decision). The Respondent had breached the implied term of trust and confidence by that meeting. It matters not whether the Respondent intended to do so. In passing we would add that the Claimant's suggestion that the Respondent had not applied the ACAS code in relation to both disciplinary and grievance matters is right, in our view.

87. The Claimant said in his resignation email that a threat of a further disciplinary hearing in response to the bankruptcy issue and Mr Watson's failure to ring the FSA were the final straws, in the context of having wasted a year of his life. In evidence he emphasised the failure to make the call as the final straw. We have to consider whether that meeting [with Mr Watson] added anything to the earlier breaches. We consider that it did: in summing up at the end of the meeting, Mr Watson had plainly taken advice internally in order to script the warning of further disciplinary action. He mentioned nothing of the possibility of alternative roles, which Ms Healy had suggested she would look into, should the Claimant not in fact be discharged from bankruptcy. We also bear in mind: the chronology of delay, the knowledge the Respondent had of the Claimant's condition both from medical advice and the Claimant himself; and the fact that the Claimant had, on the advice of Ms Nesbitt [sic], been open and honest with his employer throughout, but particularly about his bankruptcy. In those circumstances, we consider that warning of further disciplinary action is conduct which also crossed the Malik threshold, particularly taking into account the Horkulak guidance. Was there reasonable and proper cause for warning of disciplining an employee who failed to produce a bankruptcy discharge certificate? Not in our view, when the Claimant plainly had a sincerely held view that it was not necessary and the Respondent had let the matter lie unaddressed for at least six months, and given Mr Scott's knowledge, much longer with numerous other opportunities for it to be discussed. As to the failure to make the FSA telephone call, in the circumstances, viewed objectively, that did not cross the threshold. Mr Watson had good cause to wish to contact the FSA via the Respondent's normal channels and not into a general helpline. […]"

That act, i.e. failing to make contact with the FSA there and then, the Tribunal described as an "innocuous act", words that echo one of the decisions that we have quoted.

  1. The effect of those findings at paragraphs 85 87 are that the Employment Tribunal found: first, that the Respondent wrongly failed to pay the Claimant his correct money on 31 July 2010 against a background of an earlier error and causing him the distress that we have already mentioned; second, they found that the Respondent had delayed dealing with matters when they should have completed everything by 31 July 2010 and thereby kept the Claimant on suspension; third, they found that they had failed to deal properly with the bankruptcy issue and that it should have all been dealt with together; and finally they found that at the meeting with Mr Watson they had through Mr Watson issued a warning of further disciplinary action, which was inappropriate and likely to cause the upset to the Claimant that it did.
  1. In our judgment, having made those findings it was open to the Tribunal to put them together and to say that they amounted to a repudiatory breach. Certainly, such a finding was not one that no reasonable Employment Tribunal could make.
  1. Mr Hutchin says that there was no relevant breach and that the Employment Tribunal's finding to that effect was wrong and/or perverse, for four reasons, which are set out in his skeleton argument, and we turn to that skeleton argument now.
  1. Under the heading "There was no relevant breach of contract", he makes four points. First:

"a) The tribunal wrongly failed to recognise that the relevant breach relied on by the Claimant was the failure of Mr Watson to call the FSA during the meeting on 28 October […]. The tribunal rightly held that this was not capable of amounting to a breach and that Mr Watson had good cause for his conduct […]. Despite this, the tribunal found there was a relevant breach. In effect it rejected the case consistently advanced by the Claimant, and wrongly substituted its own argument to reach a finding in his favour."

We do not see that the failure to call the FSA was in any sense "the relevant breach". It was one aspect of the Respondent's behaviour that the Claimant relied on but which the Employment Tribunal found to be innocuous. Nevertheless, there was plenty of other behaviour, to which we have already referred, which it was open to the Employment Tribunal to find when put together amounted to a breach of the term of trust and confidence. Secondly, Mr Hutchin says:

"b) The tribunal's finding that 'the 31 July pay failure' was such a breach was contradicted by the evidence that the Claimant was content with the support he received at this time (see paragraph 68), and ignored the fact that it arose by mistake and was remedied within a very short time. In any event this was not relied on by the Claimant as a breach causing him to resign […]. Similar flaws apply in respect of the tribunal's reference to procedural delays."

So far as that is concerned, the failure to give him his proper pay on 31 July was in fact a breach of contract in itself, but more importantly it was part, again, as we say, of the general behaviour that went to make up the repudiatory breach. The fact that it was not expressly referred to in the Claimant's resignation letter is legally irrelevant so far as identifying a breach of contract is concerned and the elements that go to make it up. Thirdly, Mr Hutchin says this:

"c) Similarly to the extent that the tribunal found that a warning of further disciplinary action was a relevant breach, its decision was inconsistent with the Claimant's case and/or evidence, and/or wrong in principle, given that there was no finding or suggestion that such a warning was other than a genuine attempt to keep the Claimant informed about the next steps in the disciplinary process. Indeed, the Tribunal implicitly acknowledged that the Respondent was required to deal with this issue as part of its FSA obligations […]."

So far as that is concerned, we simply repeat the Tribunal's findings at paragraph 87, which we have already read into this decision, about the issue of the warning of further disciplinary action. The Tribunal thought that that was inappropriate, for the reasons they have set out; it does not have to be a distinct breach of contract in order to go towards the general behaviour that can amount to a repudiatory breach, and it seems to us that that point has no merit at all. Fourthly, Mr Hutchin says:

"d) In the circumstances to the extent that the tribunal found that the events at the meeting on 28 October 2010 amounted to a 'final straw', its decision was misconceived. It failed to take any or any sufficient account of the 'emphasis on the lack of the final straw' in the Claimant's evidence […] and presentation of his case."

Exactly what the Claimant relied on or emphasised in his evidence is irrelevant to the question of whether there was a repudiatory breach; the only question is whether he in fact left in part in response to whatever breach is found to have been committed, and so, again, we see no merit in that point. We therefore reject the contention that there was no relevant breach of contract, and we uphold the finding perhaps implicit in paragraph 87 that the matters we have referred to together could amount to a repudiatory breach of contract by the Respondent.

  1. Mr Hutchin then says that the Claimant did not resign in response to the alleged breaches and/or that he waived them or otherwise affirmed his contract. The Tribunal's finding about this is at the bottom of page 40 into page 41 of the bundle (paragraph 87):

"Do we then consider that the Claimant resigned in response to an innocuous act [a reference back to the failure to make the telephone call], which added nothing or was not, of itself a breach? Despite the Claimant's emphasis on the lack of the final straw in his evidence, we bear in mind his contemporaneous email [which we have read into this Judgment] placing equal weight on the wasting of a year of his life and the threatened further disciplinary hearing. In our view the Claimant had not affirmed the earlier breaches of delay [sic] (see his third grievance about the illegality of his continued suspension) and was entitled on 31 October to resign in response to that. In our view, there is no doubt (and it was not asserted) that there was any other reason for the Claimant's resignation than the events over the past 12 months, culminating in that meeting with Mr Watson. In our view the Claimant resigned in response to the Respondent's breaches of trust and confidence. He was constructively dismissed."

Returning to the skeleton argument and the points raised in relation to not resigning in response to the alleged breaches or affirming the contract, Mr Hutchin says:

"a) As set out above, the breaches identified by the tribunal were not relied on by the Claimant as breaches or events causing his resignation […]."

The answer to this is that the Claimant does not have to identify each and every matter relied on by him at the time of his resignation. He identified the last straw, which was basically the meeting and, as he put it, the failure to make the call and the threat of further disciplinary action, and the events of the whole previous years. The Employment Tribunal were satisfied that he resigned in response to those parts of the previous year and the meeting that they thought went to make up a repudiatory breach, and that is sufficient. Mr Hutchin goes on:

"b) The Claimant had continued to remain employed by the Respondent, and to affirm that employment, well after the pay delay on 31 July 2010 had been resolved […]; the Claimant had been informed of the outcomes of the disciplinary process relating to the gross misconduct allegations (9 August 2010 […]); and he had been warned of the potential for further action relating to his bankruptcy […]. The Claimant confirmed in evidence that he had a good relationship with Mr Watson, even at the conclusion of the meeting on 28 October 2010, which the tribunal rightly found 'ended on good terms'."

Again, none of that is relevant. In a case where a course of conduct and a last straw is relied on, the Claimant will by definition have remained in employment until the last straw. That does not mean he is deemed to have waived all the earlier breaches or conduct going to make up a breach or affirmed the contract. Mr Hutchin then says this in his skeleton:

"c) The tribunal wrongly reversed the burden of proof in constructive dismissal cases and/or took account of irrelevant factors by requiring the Respondent to establish the reason for the Claimant's resignation. The tribunal apparently relied on the absence of any other reason for resignation being asserted by the Respondent […], and then considered what 'in our (i.e. the Tribunal's) view had led to the resignation' […]."

We simply do not accept that the Tribunal reversed any onus, and this is based on a misreading of what the Tribunal is saying. They are dealing with whether the Claimant resigned in response to the Respondent's behaviour, which we have identified too many times to repeat. His case was that he was responding to that behaviour, and the Employment Tribunal simply note that no suggestion has been put forward by The Carphone Warehouse as to any other extraneous reasons for his resignation and they find as a matter of fact that the reason he resigned was the one that he had given in his email.

  1. The next point taken by Mr Hutchin is that the Tribunal failed to give any sufficient reasons for finding that the constructive dismissal was unfair. They dealt with this briefly at the end of paragraph 87, saying this:

"Finally, we are required to consider formally whether the Respondent has established a potentially fair reason for dismissal and acted reasonably in dismissing the Claimant, within the provisions of section 98(2) ERA and 98(4). We confirm our view that the Respondent has not established such a reason in all the circumstances of this case and that the Claimant's unfair dismissal claim succeeds."

In all the circumstances of this case, there was really no need to say any more than that. On all the findings made leading to the conclusion that the Claimant had been constructively dismissed, it was patently obvious that that constructive dismissal was unfair. So, the appeal in relation to constructive dismissal fails.

  1. There were various other complaints in Mr Hutchin's skeleton about the extent of cross examination of the Claimant that was allowed and about the Employment Tribunal's decision that the Claimant had informed the Respondent of his medical condition. Those were not really pressed and are, in our view, hopeless. The cross examination was a matter for case management, the topic that he apparently was not allowed to cross examine the Claimant on – and we do not have any evidence about it – was not directly relevant, and the time when the Claimant informed the Respondent of his medical condition was a question of fact for the Tribunal that we have already referred to and that cannot be assailed.
**The cross appeal**
  1. As we say, there was a cross appeal by the Claimant, although he did not appear, and we can deal with this very shortly but, we hope, fairly, given his own approach to that appeal set out in his skeleton, which says this:

"I wanted this ordeal to be over as soon as possible so I would have accepted the tribunal's decision but on hearing that the respondent was appealing I thought I would execute my right to do so and challenge some of the decisions that were made on the basis of misunderstanding and planned lack of evidence on the respondent's part […]."

  1. The skeleton argument raises a few points, which we identified with the assistance of Mr Hutchin. One, he says he was not guilty of any wrongdoing at the outset because his medical condition was such that he could not understand the quality of his actions. There is no evidence that this point was taken in the disciplinary hearing or before the Employment Tribunal, and in any event it is irrelevant to the finding of constructive dismissal, which is the basis of the Claimant's overall victory in this case. Two, he asked for the Tribunal to reconsider the outcome of the appeal heard by Ms Lowry. As far as we can see, that is a new point, and there is no basis for us reconsidering the outcome of an appeal. Three, he asks the Tribunal to review the decisions on direct discrimination on various grounds set out in paragraphs 35 and 36 of his Notice of Appeal. Either those points were taken into account or they amount to new material, which we cannot take into account anyway. We dismiss the cross appeal.
**Conclusion**
  1. So, the appeal succeeds on issues 2(c) and (d) set out at the beginning of the decision and fails on issue 4, constructive dismissal, and the cross-appeal is dismissed.

Published: 24/03/2013 09:47

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