BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom Employment Appeal Tribunal


You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Da'Bell v. National Society for Prevention of Cruelty To Children [2009] UKEAT 0227_09_2809 (28 September 2009)
URL: http://www.bailii.org/uk/cases/UKEAT/2009/0227_09_2809.html
Cite as: [2009] IRLR 19, [2009] UKEAT 0227_09_2809, [2010] IRLR 19

[New search] [Context] [View without highlighting] [Printable RTF version] [Help]


BAILII case number: [2009] UKEAT 0227_09_2809
Appeal No. UKEAT/0227/09

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
             At the Tribunal
             On 28 September 2009

Before

HIS HONOUR JUDGE McMULLEN QC

MRS A GALLICO

MR H SINGH



MRS D DA’BELL APPELLANT

NATIONAL SOCIETY FOR PREVENTION OF CRUELTY TO CHILDREN RESPONDENT


Transcript of Proceedings

JUDGMENT

ALLIED P & L LIMITED

© Copyright 2009


    APPEARANCES

     

    For the Appellant MR T CROXFORD
    (of Counsel)
    Appearing on behalf of the Bar Pro Bono Unit
    For the Respondent MR M DUGGAN
    (of Counsel)
    Instructed by:
    Messrs Edwards Angell Palmer & Dodge
    One Fetter Lane
    London EC4A 1JB


     

    SUMMARY

    UNFAIR DISMISSAL

    Constructive dismissal

    DISABILITY DISCRIMINATION

    Compensation

    In a claim for constructive unfair dismissal where the last straw doctrine was not relied on, the Employment Tribunal was entitled to hold that the Claimant's reason for resignation 12 weeks after the relevant breach was not that breach.

    The Employment Tribunal did not err when it placed the injury to feelings award in a successful claim for reasonable adjustments under the Disability Discrimination Act 1995 in the middle of the middle Vento range. The EAT decided that it is appropriate to update the Vento range in line with inflation to replace £5,000, £15,000 and £25,000 with £6,000, £18,000 and £30,000 respectively.


     

    HIS HONOUR JUDGE McMULLEN QC:

  1. This case is about constructive unfair dismissal and a consideration of the awards for injury to feelings. All members of the court appointed by statute for their specialist experience have contributed to the Judgment.
  2. We will refer to the parties as the Claimant and the Respondent.
  3. Introduction

  4. It is an appeal by the Claimant and a cross-appeal by the Respondent in those proceedings against a judgment of an Employment Tribunal chaired by Employment Judge Parker sitting over nine days at Exeter, registered with reasons on 11 August 2008. That was a remitted hearing, following a judgment of Elias P and members UKEAT/0044/08.
  5. The original hearing leading to that appeal was aborted after seven days because of apparent bias by a different employment judge and a catalogue of procedural errors. Neither party was in any way at fault. The President expressed sympathy with them for having to start again at considerable expense. The parties were legally represented at the remitted hearing but today Mr Thomas Croxford and Mr Michael Duggan of Counsel appear for the first time in any of the proceedings for the Claimant and the Respondent respectively.
  6. The issues now relevant on appeal were summarised by the Tribunal in the following way:
  7. "These are claims by Mrs Deborah Da'Bell against her former employer, the National Society for the Prevention of Cruelty to Children. She brings complaints of disability discrimination and unfair dismissal.
    The Claimant was employed as a community appeals manager by the Respondent for a period from 2002 until she resigned on 12 July 2006. The parties agree that she has a disability as defined by the Disability Discrimination Act 1995. She suffers from a heart condition, sino-atrial disease, and has for many years been fitted with a pacemaker. Briefly, her claim is that, firstly the Respondent failed to make reasonable adjustments as required by the Act. ... Finally, the Claimant says that she resigned as a result of the treatment that she received and she was accordingly unfairly dismissed."

  8. The Respondent admitted disability, denied it failed to make adjustments and contended the Claimant resigned. The Employment Tribunal decided that the Claimant's case, in respect of a failure to make reasonable adjustments, succeeded in part and awarded her £12,000, to which interest of £2,160 was added. It dismissed her claim of unfair dismissal. We will, with the agreement of both Counsel, make a correction to the judgment, for the Tribunal wrongly records a finding of unlawful disability-related discrimination. We make it clear that many claims the Claimant made were dismissed, leaving solely the reasonable adjustments finding.
  9. The Claimant appeals against the failure to hold that she was constructively unfairly dismissed. The Respondent cross-appeals on the basis that the award of compensation was too high, pitching it in simple terms at between £6,000 and £8,000. Directions sending the appeal for a full hearing were given in chambers by HHJ Peter Clark. He gave no written reasons for this but both parties were there and understood the basis and we have seen his notes. His decision was, however, different from the opinion expressed by Elias P, under Rule 3, he having made the judgment in the original. On the paper sift of this appeal he came to the following conclusions, to which life will be given when we explain the facts:
  10. "It is classically a question of fact whether an employee has left in response to a repudiatory breach or has delayed too long. The Tribunal weighed all the evidence carefully. The Tribunal was plainly aware that the Claimant was in a poor state of health, but they identified the fact that she was in late April still wishing to remain employed. It is suggested that the Tribunal erred in law in having regard to the letter that was written by her husband. I do not accept that for one moment. As the Tribunal noted, he was acting on her behalf at that stage and they were fully entitled to take it into consideration.
    As to the issues raised in paragraph 7.3, the Tribunal plainly considered that these were not material breaches. In my judgment, they were plainly entitled to do that because none of these were specifically referred to by the Claimant in her letter of resignation. In any event, the Tribunal plainly did not consider that anything after 24 May was significant (see para 19-after para 47!).
    Finally, it is submitted that the issue of delay was not one raised specifically by the Respondent. However, the Tribunal has to determine whether there has been a constructive dismissal and they have to apply the law to that. They do not simply look at the features which are specifically referred to by the Respondent. The onus is on the Claimant to establish a dismissal and she has to show each element which is necessary as a matter of law to satisfy the Tribunal that there has been a constructive dismissal. She has failed to do that in this case."

    The legislation

  11. The relevant provisions of the legislation are not in doubt. The Disability Discrimination Act 1995 section 3A imposes on an employer a duty to make reasonable adjustments for a given disabled employee. It is further expanded by section 4A:
  12. "(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."

  13. There is a code relevant to this. Nothing turns on the burden of proof, which is accepted to be in accordance with section 17A(1)(c).
  14. The Employment Rights Act 1996 section 95(1)(c) provides for what is known in the trade, colloquially and judicially as constructive dismissal. It is that an employee may resign in response to an act of the employer and be unfairly dismissed.
  15. The facts

  16. We will insert our own findings on the facts, so far as they appear to be uncontroversial, to plug a gap in the Tribunal's reasons in order to describe who the parties are. The Respondent is a national charity working to eliminate child abuse. It employs approximately 2,000 staff within the United Kingdom and is reliant upon public donations for over 95 per cent of its income. The Claimant was employed as a fundraiser, a manager working from home in the West Country, living at Exmouth. She was paid £31,000 a year from 17 June 2002 until the relationship came to an end by her resignation on 12 July 2006. She was one of four appeal managers covering the South West and her task was to support and coordinate volunteer fundraisers who worked in branches throughout the area. She had to travel. She was based at home. She had a wide geographical base, although not larger than others. She was on a 35 hour week.
  17. Prior to her joining the Respondent, she had been diagnosed with sino-atrial disease and fitted with a pacemaker as early as 1988. An issue arose as to whether reasonable adjustment should be made for her some two years after joining and meetings were conducted in order to discuss it. In the early part of 2005, she was away on sick leave for two months. In due course the Respondent sought advice from Dr Gibson of Corporate Health, seeking opinions about the way in which the Respondent could support the Claimant recognising her disability. Working arrangements were reviewed on 24 June 2005, where the Tribunal seems to accept the Claimant's case that this meeting was a facade. The Tribunal formed the view that the root of the problem was that nobody had analysed the Claimant's work and so nobody was able to say what effective help should be given. There was a lack of focus and no proper risk assessment of the Claimant's work bearing in mind her disability. Corporate Health reported through Dr el Nageib on 13 July 2005. Very clearly, the doctor set out the approach which should have been taken by the Respondent. That finding is not the subject of appeal.
  18. The response of the Respondent was also to commission Karen Shea, Occupational Health Manager at Corporate Health, to do a risk assessment based upon the Claimant's own home. Two reports were made, slightly different in tone but the gist of which was the same. The Claimant was concerned about the reports when they eventually came to light. She thought there was collusion between Corporate Health and the Respondent. The Tribunal said that, although the Claimant felt strongly about this, it was not necessary to express an opinion because what mattered was that there was a clear recommendation in both reports about how the Claimant's disability could be coped with, by reducing the Claimant's geographical area, effectively looking at the workload of the case.
  19. The Claimant was unhappy about the report and on 9 December 2005 she lodged a grievance with Stephen George, a relevant manager. This is the first grievance. It was a complaint of disability discrimination and of a delay in dealing with the complaints which she had made. In her grievance she sets out a history of her complaints. It had brought her down with stress and exhaustion and she threatened Employment Tribunal proceedings.
  20. Contemporaneously, the Respondent was giving anxious consideration to a disciplinary offence allegedly committed by the Claimant, and caused an investigation. This has nothing whatever to do with the disability issue nor, dare we say, to do with the constructive dismissal but at some stage the grievance hearings were connected to the disciplinary matter. The disciplinary matter has never been resolved and we say no more about it. A grievance hearing, however, was conducted in relation to the Claimant's first grievance on 30 January 2006. Within two days, 2 February 2006, the Claimant went off sick. She was signed off with stress, anxiety and other chest discomforts.
  21. At the time of the complaint the Claimant's main grievance was the timescale for dealing with the problems which she had drawn to the attention of the Respondent. By 4 April the Claimant was so dissatisfied at the amount of time it was taking that she lodged another one. The second grievance as we will call it was recorded by the Tribunal in the following terms:
  22. "That prompted the lodging by the Claimant of a second grievance based upon 'the defensive and negative manner in which you (that is Mr George) have dealt with the first grievance'. She made three particular points in her letter of grievance. Firstly she alleges that it was evermore clear that circumstances were being constructed to make her position within the organisation untenable. She complained of Mr George's failure to deal with the matter in a timely manner, protracting matters unreasonably and. she says that the 4 month period delay (that's in relation to the first grievance) was calculated and deliberate. Although that letter is addressed to Mr George, the grievance itself was submitted to Mr Giles Pegram, the director of fundraising for the Respondent."

  23. From that date on, a number of steps was taken by the Respondent to try to deal with the first and second grievances but significantly, within this time, the Claimant also wrote to Giles Pegram, the Director of Fundraising for the Respondent. She had lodged her second grievance with him. There was a flurry of email traffic and communications, including communications from the Claimant's husband who was representing her, as well as, at some stage, her Staff Association representative. The upshot was that on 11 April Mr George replied to the letter which had been addressed to him, albeit destined for Mr Pegram. The Tribunal concludes that a number of steps were being taken by the Respondent which was to address the matter which she had raised.
  24. On 15 April 2006 the Claimant withdrew from a proposed meeting, saying that the second grievance should be dealt with now by Mr Pegram. This was regretted by Mr George and he then concluded that the first grievance procedure was at an end. On 24 April 2006 the Respondent summarised the position:
  25. "She says 'I could not let your letter pass without response due to the inflammatory nature and unfavourable/disingenuous content of the language used in your reply'. With regard to the proposed attendance of Leslie Bailey, she accused Mr George of effectively constructing circumstances which ensured that she would have no choice but to decline to meet him …"

  26. That is an important watershed because it represents the point at which the Tribunal concludes there was a breach of contract.
  27. As the chronology goes on, Mr Pegram appointed Mr Hunter to deal with the second grievance. In our judgment, what Mr Hunter did was entirely appropriate, conciliatory, open-minded and directed to a forward looking approach to resolving all of the issues between the Claimant and her various managers. Some of the problems the Claimant had raised were dissolved. One of them was whether the Claimant's husband could attend a meeting; he could. There was no meeting because Mr Hunter was ill and he had to cancel it and rescheduling of the meeting was made for 25 May. However, Mr Barrett the Staff Association representative then with conduct of the Claimant's grievances, decided to write to the Respondent and say that the Claimant would not attend because on the advice of her doctor. There was no evidence as to what her condition was. It appears also that the decision not to attend was based upon legal advice the Claimant had received.
  28. The Tribunal concluded that no significant information or event had occurred during this time and up until 12 July 2006 when the Claimant resigned. Her resignation letter is in these terms:
  29. "'I write to inform you that I hereby resign from my employment with the NSPCC with immediate effect. I'm greatly distressed at having to resign from a role that I had once enjoyed so much and which had meant so much to me. However the NSPCC has failed to deal properly or satisfactorily with two grievances and it is doing nothing positive to release me from my continuing stress and ill health and to allow me to return to work with reasonable adjustments to accommodate my heart condition. I have lost all trust and faith in the NSPCC as an employer.' "

    She concludes by asking the Respondent to address all future correspondence to her legal representative. Thus it was that the relationship came to an end.

  30. The Tribunal began first to consider the Disability Discrimination Act claims. Taking an analytic approach, it identified 13 different claims by the Claimant that the Respondent had failed to make a reasonable adjustment. It upheld these:
  31. "(b) failure to consider or implement the recommendations of Dr el Nagieb;
    (e) failure to consider or implement and concealment. of the recommendations of Karen Shea, the occupational health manager, in her first report;
    (f) failure to consider or implement the recommendations of the home worker's assessment December 2005, that is effectively the second report of Karen Shea."

  32. Although there are three separate heads, they effectively are two and they were upheld in terms by the Employment Tribunal. In addition, the focus of the Employment Tribunal turned to 2 others of the 13 claims but the outcome was different. These were:
  33. "(i) failing to address sufficiently promptly the issues raised in the 2 grievances;
    (k) failing to respect Claimant's requests that she should be contacted through her solicitors."

  34. So, for the purposes of the appeal, four of the Claimant's complaints are relevant. There is no dispute that the nub of the Claimant's case was upheld. It was a complaint that she had a large amount of work to do, whether as a result of the number of hours that she could do in a week or the geographical area does not seem to matter. The Tribunal upheld a complaint that the el Nageib report should have been followed up and so should Karen Shea's reports. They were findings squarely in her favour.
  35. As to the two other matters which we identify as being treated differently, the Employment Tribunal said this:
  36. "In relation to the grievances, certainly we observe that the first grievance took a long time to resolve. We observe it was a complex matter, but the Claimant here, and this is the correct approach, failed to identify a provision, criterion or practice in relation to that timescale which put her at a substantial disadvantage when compared with a non-disabled person.
    The final complaint is of the alleged failure to respect her requests to be contacted through solicitors. Again the Claimant fails to identify a provision, criterion or practice which put her at a disadvantage."

  37. Constructive dismissal has been given considerable attention by both Counsel and so we will record what the Tribunal said, rejecting as we do Mr Croxford's criticism that the Tribunal here has been too concise. The Tribunal said this:
  38. "Going on, in order to succeed the Claimant must resign or show that he or she resigned because of the breach of contract by the employer and must also show that he or she did so reasonably promptly. I have already read verbatim the Claimant's letter of resignation. She relies upon all the alleged breaches of duty to make reasonable adjustments. Of those, the ones that we have found proven were the failure to make adjustments after Dr el Nagieb's report and the GP's report and then Karen Shea's report. In this respect, we remind ourselves of the following facts. The first grievance was not upheld. On 24 April 2006 the Claimant wrote to Steven George complaining about the dismissal of her grievance and saying that he had in effect engineered matters so that she had no choice but to decline to meet him. Our view is that if the Claimant had resigned at that point, we would have found that the reason for her resignation could be said to have been a breach by the Respondent of the implied term of trust and confidence based upon the failures to make reasonable adjustments that we have found and then the dismissal or rejection of the grievance which complained about those failures. However, on 24 April 2006, on the same day as the letter to Steven George to which I have just referred, the Claimant's husband apparently wrote to volunteers of the Respondent. We don't know how many were written to and that is not really material. This letter appears at page 239 in the supplementary bundle of documents that we have seen. Now I refer to this letter because we know that at this stage the Claimant's husband was corresponding on her behalf through post and e-mail and supporting and assisting her with the prosecution of her complaints and grievances. In this letter, the bulk of which I don't think I need read for the purposes of this judgment, the husband observes that, 'I know that she is absolutely committed to the ethos of the Society and she can't wait to be well enough to be back at work raising funds to help children'. At about the same time, the Claimant submits a second grievance to the Respondent. She does not at that stage resign.
    Mr Hunter's response to the second grievance is to offer to meet the Claimant very quickly and almost entirely we think on her terms to consider, among other things, the delay to the first grievance. He agrees to consider the refusal to allow the husband to attend the Gloucester and London meetings and he agrees that the husband should attend the meeting that he is proposing and that that meeting should take place in Exeter. He agrees to consider again the Respondent's refusal to exclude Leslie Bailey from the earlier proposed meeting. But for Mr Hunter's unfortunate illness, that meeting would have taken place. The meeting was rescheduled, but the Claimant effectively pulled out because, according to Mr Barrett, she received medical advice to that effect. We have not seen medical evidence in relation to that period, so we can't make any judgment about the accuracy of what was said there. Mr Barrett also says sat that stage that the Claimant was seeking legal advice and that that was another reason for there to be a delay. Mr Barrett in his evidence to us said that there were then contacts between himself and the Respondent to see whether matters might be resolved with resort to a claim to an Employment Tribunal, which seems to us to imply an attempt to resolve in the round the complaints and grievances that the Claimant felt she had at that stage. Then after a further considerable delay, the Claimant writes on 12 July a very short letter compared with most of the correspondence that preceded it saying that she was resigning. As I have already said, had the Claimant resigned at or soon after 25 April, she might well have persuaded us that she was doing so in response to a breach of contract by the Respondent, but in our view the fact that she submitted a second grievance to which the Respondent's response cannot be faulted and then waited approximately 12 weeks before resigning, leaves us unpersuaded, (and here the burden of proof is upon the Claimant); that the reason for her resignation was the Respondent's breach of contract. We are also unpersuaded in the event that she resigned sufficiently promptly. For those reasons, the complaint of constructive dismissal is also dismissed."

    The remedy

  39. On the basis of those findings the Employment Tribunal made an award of £12,000. The award is at the midpoint of what the parties agree would be the updated figures set out in Vento v Chief Constable of West Yorkshire Police [2003] IRLR 101. Those were the agreed figures, but it was not agreed that the Claimant's case fell in the middle of the middle Vento band. The Tribunal said this:
  40. "To all intents and purposes, our judgment is that nothing was done. A certain amount was talked about, a certain amount was considered; but in practice nothing done. The reports to which I have referred made clear the nature and extent of the Claimant's disability and the effect of excessive hours upon her state of health, as clear as needed to be."

  41. The Tribunal plainly considered the amount of time over which the Claimant had been suffering. It was from July 2005 to February 2006 when she went sick and, insofar as they related to various failures of the Respondent and continued, some element was considered in respect of the period while she was sick. That seems to have been a secondary consideration, the Tribunal firmly forming the view that the insult was from 2005 to the early part of 2006 and so it awarded £12,000 on the putative midpoint.
  42. The Claimant's case

  43. Mr Croxford submitted that the Employment Tribunal had been wrong in law. He accepted before us that this was not a case based upon the application of the last straw; see for example Woods v WM Car Services (Peterborough) Ltd [1982] IRLR 413 and Omilaju v Waltham Forest London Borough Council [2005] ICR 749. Thus, this case is a case of constructive dismissal that is the acceptance by the Claimant of repudiatory conduct by the employer.
  44. The principal criticism is that, while it looked correctly at the 2 out of 13 complaints of failure to make reasonable adjustments and weighed those in the balance, the Employment Tribunal did not also add them to the two other complaints which the Tribunal had rejected under the DDA. In other words, for the purposes of considering whether there was repudiation, it was necessary to look at all four of those and the Tribunal had incorrectly focussed on two. It is not enough to deal with the breaches of the DDA, for when looking at a repudiation all conduct is relevant, whether it is a breach of the statute or individual breach of contract. The Tribunal had erred in stopping the clock at 25 April 2006 and should have recognised that the matters which had impressed the Tribunal as being repudiatory at that date did not go away. The Tribunal had instead imposed upon the Claimant a burden of showing that she acted promptly and whatever the Respondent was offering to do to cure the earlier defects was irrelevant within the law of contract. The Tribunal, as he put it, took a wrong turn by invoking affirmation when this had not been advanced by the Respondent in the proceedings.
  45. As to compensation, in response to the cross-appeal, Mr Croxford contended that the Employment Tribunal, as a fact finding body giving its impression of what the injury to this employee was as a result of the two findings of disability discrimination, should not be the subject of interference on appeal, unless the judgment was manifestly excessive or wrong in principle. Neither of was demonstrated. The Tribunal had noted the length of time over which this matter had occurred and was entitled to come to the conclusion which it did - the middle of the Vento band could not be said to be wholly wrong.
  46. The Respondent's case

  47. Mr Duggan has helpfully made a number of concessions. First, he accepts that doing nothing is not to be evidence of affirmation and he is right to do that, see Cox Toner (International) Ltd v Crook [1981] ICR 823. He also accepts that pursuing a grievance is not, in itself, evidence of affirmation of the contract. We agree with that too. Under the little lamented regime of the 2002 Employment Act, for five years employees were required to register a grievance if they sought in due course at a Tribunal to present a claim of constructive unfair dismissal. That actually corresponds to industrial relations common sense; if you can sort out your problem at the work place, without resort to an employment tribunal, you should. We would pause long before we said that someone who had lodged a grievance against offensive action by an employer was thereby affirming the contract, forever forsaking their right to weigh against the employer at an employment tribunal the claim of constructive unfair dismissal. That, we think, is not the law, nor the policy and the practice which we should adopt.
  48. However, all of that is irrelevant, says Mr Duggan because this case is not about affirmation. The central finding against the Claimant on this part of her case is (as we have recorded it in paragraph 26 above) that the reason for the Claimant's resignation was not the Respondent's breach of contract. He contends, as a matter of construction (and in the context of the rest of that paragraph) that the breach of contract described here is that which would have persuaded the Tribunal to have upheld the Claimant's claim, had she acted upon it on 25 April but not thereafter, either because it was no longer a breach or because that was not the reason for the resignation.
  49. Mr Duggan is fortified in his submission by his reference to the final paragraph cited above and the use of the linking word "also", which he submits means that the primary finding of the Tribunal is intact and this additional finding (if that is what it is) in relation to affirmation and delay is not essential to the primary finding.
  50. As to compensation, he contends that the Tribunal, rejecting as it did 11 of the Claimant's claims of failure to reasonably adjust and for upholding only 2, lost sight of that fact and brought in, somehow, into its compensation of the Claimant, matters which it had properly dismissed as being free standing rights. He also contends that for the two upheld complaints, the middle band of Vento is incorrect and it should be either at the top end of the lower band or the bottom of the middle band. It is £6,000 to £8,000.
  51. The legal principles

  52. The legal principles to be applied in this case appear to us to emerge from the following authorities. The law on constructive unfair dismissal is set out by the Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 which the Employment Tribunal succinctly paraphrases, adopting as it does, the Claimant's legal representative's submission, which is that in order to succeed, the Claimant must show that she has resigned because of the breach of contract by the employer and must also show that he did so reasonably promptly. The breach must be that which falls within the speech of Lord Steyn in Malik v BCCI [1998] AC 20 where he said this:
  53. "… the implied mutual obligation of trust and confidence applies only where there is 'no reasonable and proper cause' for the employer's conduct and then only if the conduct is calculated to destroy or seriously damage the relationship of trust and confidence. That circumscribes the potential reach and scope of the obligation. The term calculated to destroy has subsequently been interpreted as including or likely to destroy the relationship."

  54. As to compensation, the guidelines in Vento were prefaced by the following exposition of the Tribunal's duty:
  55. "51. Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury. In these circumstances an appellate body is not entitled to interfere with the assessment of the Employment Tribunal simply because it would have awarded more or less than the tribunal has done. It has to be established that the tribunal has acted on a wrong principle of law or has misapprehended the facts or made a wholly erroneous estimate of the loss suffered. Striking the right balance between awarding too much and too little is obviously not easy."

  56. The result of that judgment was to establish three bands; up to £5,000, £5,000 to £15,000 and £15,000 to £25,000 for the most serious injuries to feelings.
  57. Conclusions

  58. While no doubt irritating both parties, we reject the arguments of them both and have decided that the appeal and the cross-appeal should be dismissed.
  59. Constructive Dismissal

  60. The bottom fell out of this case for the Claimant when it was not argued below that this was a case of a last straw. We make no criticism of that. It seems on the facts to have been entirely a correct judgment made by those advising her. But the problem is that if there is no contention of a last straw then the doctrine of repudiation and acceptance moves back a number of stages. It is implicit in the last straw doctrine that none of the events along the way to the imposition of the last straw on this laden camel's back is itself a repudiation. There is a series of events, many of them small, many of them not breaches of contract at all but which, when added to the last straw, do constitute a fundamental breach. Where, however, what is relied on is a single breach occurring in April 2006, to wait three months indicates either affirmation (the auxiliary finding in this case) or a detachment of that event from the reasoning of the Claimant when she resigned. That is the primary finding in this case.
  61. To put it in simple terms, a person who reacts to offensive conduct by an employer by writing a letter the next day will easily be adjudged to have acted by reason of it. But someone who leaves it for a year, who will not let bygones be bygones, who digs it up again, is likely to be acting for a reason which is not directly related to the breach. Those are matters of fact for an employment tribunal, to determine what the reason was. The Tribunal here decided that the reason was not the breach in April 2006.
  62. Mr Duggan, with difficulty but in our judgment with sense, is unable to contest the finding by the Tribunal that as at April 2006 there was sufficient material here of a repudiatory nature to entitle the Claimant to walk away and claim constructive dismissal. We have to say the findings by the Tribunal do not point ineluctably to that but we are faithful, as he is, to them.
  63. By mid May, the Respondent, through Mr Hunter, was acknowledging that things had gone wrong and steps would be taken during the course of the second grievance hearing to address them. That is good employment practice; why should the parties part company when there is, in the hand of the employer, the means of achieving satisfaction of some, or all, of the Claimant's grievance? Indeed, as the Employment Tribunal implies, matters might be resolved without resort to a claim to an employment tribunal. That seems to imply an attempt to resolve in the round the complaints and grievances the Claimant felt she had at that stage. Nothing happened for a further two months. The simple answer to the elegant and scholarly arguments advanced by Mr Croxford is the deft response of Mr Duggan that affirmation does not come into this. There is an impenetrable finding of fact as to why the Claimant sent her letter on 12 July 2006, a matter of fact open to the Tribunal. We see no basis to interfere.
  64. Compensation

  65. From time to time, the EAT decides on proper submission to up-rate various standard guidelines. It did it for example in Muffett (SH) Ltd v Head [1987] ICR 1, in relation to what was described then as the standard figure for the loss of statutory rights. This is such a case. At first instance, the advocates had agreed that the appropriate uprating for the Vento scales, first set in December 2002, would be respectively £6,000 and £18,000. Both Counsel invite us now to up-rate the figures in line with the RPI. In December 2002 the RPI was 1785 and today is 2144, which would yield in round figures £6,000. A similar approach would yield £18,000 to the top of the middle band and in order to complete this exercise, although not strictly necessary for our judgment, the top band is £30,000. We are conscious there has been no contested debate about this but we take it as a tribute to the parties and their experienced legal representatives at the Employment Tribunal and here that it is a correct approach to adopt to the assessment of compensation for injury to feelings today.
  66. We acknowledge the work done by both Counsel in now fixing, as we will do, the guidelines for compensation for injury to feelings. As we have made clear from our citation from Vento in the Court of Appeal, this is not an exact science. The Tribunal here was entitled to place within the second band the events which it had criticised the Respondent for. It was entitled to note how long it had taken and to notice the effect on the Claimant of these matters through her stress, her sickness, her frustration and so on. It was entitled in the light of that to make the award. We do not consider it inadmissibly brought into account the matters which it had rejected. There was enough material here, in our judgment, for the Tribunal to place within the middle Vento band the injury in this case. Where in the middle band is a matter for it to decide.
  67. We indicated at the outset that appeals on the basis of inadequate or excessive compensation were more likely to succeed if the wrong band were chosen. Mr Duggan conceded the claim was worth £6,000 to £8,000. That is within the middle band. In our judgment disputes about the placement within a band of an award are likely to be about fact and impression. They are more likely to raise questions of law if they are about placement in the wrong band or at the extremes. The difference here is between the mid point and the lower end. Between the two poles are five steps. The Respondent concedes the first (£8,000) and the Employment Tribunal chose the third (£12,000).
  68. The Employment Tribunal listened to the Claimant tell her story and say what effect the failures of the employer had had upon her; that is a unique advantage not bestowed upon us. We will not interfere with such findings unless they are manifestly wrong, which in this case they are not. With our thanks to both Counsel for their written and oral submission, the appeal and the cross-appeal are dismissed. We noted at the outset that the Respondent had paid in full the award of the Tribunal which of course will remain as it falls.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKEAT/2009/0227_09_2809.html