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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Daley v Serco Home Affairs Ltd & Ors [2010] UKEAT 0086_09_0701 (7 January 2010) URL: https://www.bailii.org/uk/cases/UKEAT/2010/0086_09_0701.html Cite as: [2010] UKEAT 86_9_701, [2010] UKEAT 0086_09_0701 |
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At the Tribunal | |
On 14 April 2009 | |
Before
HIS HONOUR JUDGE SEROTA QC
MR C EDWARDS
MR J MALLENDER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR J SYKES (Representative) Messrs R C Hall Solicitors Gibson House 800 High Road Tottenham London N17 ODH |
For the Respondent | MS M TETHER (of Counsel) Instructed by: Messrs DLA Piper UK LLP Solicitors Victoria Square House Victoria Square Birmingham B2 4DL |
SUMMARY
UNFAIR DISMISSAL: Constructive dismissal
RACE DISCRIMINATION: Direct
The Claimant's appeals against the Employment Tribunal's conclusions on the issues of constructive dismissal and four specific allegations of discrimination on the grounds of race failed on the facts. The Employment Tribunal had adequately set out the facts it found and explained the reasons for its findings.
HIS HONOUR JUDGE SEROTA QC
Introduction
(a) 17 October 2006 alleging discrimination on the grounds of race.
(b) 29 December 2006 alleging unfair dismissal, disability discrimination,
discrimination on the grounds of race, breach of contract and unauthorised
deduction from wages.
(c) 9 February 2007 alleging discrimination on the grounds of race.
(d) 25 December 2007 alleging discrimination on the grounds of race and disability.
The Factual Background
"He was becoming increasingly hard to manage and his behaviour had developed from non compliance to outright aggression and hostility towards his managers especially Ms Fade and Ms Head. He would not communicate effectively with them and seek their permission when required or comply with their reasonable management instructions
Following the visit to Greenwich Magistrate's Court Mr Daley wrote to Ms Fade (p167) complaining that her behaviour constituted harassment and that he would be contacting her manager regarding the incident and referred to a message he had left on her voicemail when he had vented his frustrations. On this occasion, as with others which we shall describe in due course, Mr Daley had responded to a legitimate query from his manager with an aggressive and sustained response both verbally and in writing coupled with a threat to report her to more senior managers and external authorities. This is a pattern that repeated itself throughout the course of his employment. He alleged breach of the Data Protection Act in this example, but does not appear to have made a complaint to the Information Commissioner. Again it is a pattern that we shall see develop, of his asserting that he will take matters further and involve external agencies and then fail to do so."
"The Claimant brings an allegation of constructive dismissal, alleged to be unfair contrary to Section 98 Employment Rights Act 1996 (ERA 1996). The allegations and incidents relied on in support of the alleged fundamental breach of the Claimant's contract by the Respondent is limited to the allegations listed in the agreed issues set out above."
"By allegedly failing to pay the Claimant company sick pay for a period of illness from November 2005 to January 2006."
"That on 18 April 2006 the Respondent conspired with Sophia Joannou to have the Claimant falsely arrested and detained."
Ms Joannou was an employee of HM Court Service at Greenwich Magistrate's Court.
"On Tuesday, 18 April I was illegal [sic] detained by Serco at Greenwich Magistrates Court without a warrant for my detention. Pat Rodal and Jennine Buttler was present whom are senior [sic] members of staff. Procedures were not followed and I have requested a copy of their policy and procedures for detaining a prisoner in custody in which I was told they have no policy and procedures."
The Employment Tribunal deal with this matter at paragraphs 67-79. The Claimant had incurred fines at South Western Magistrate's Court which he had not paid and had not appealed against within the applicable time limits. He received a summons to attend South Western Magistrate's Court, did not attend and a bench warrant was issued for his arrest following his failure to attend a means inquiry on 11 April 2006. The warrant was not backed for bail. The Employment Tribunal, noted at paragraph 67:
"For the avoidance of doubt we should explicitly state that we find as a fact that the warrant was issued."
"That it was operational requirements alone that led him to be allocated Greenwich Magistrate's Court on 18 April. We did not accept that the allocation run had been deliberately changed and Mr Daly somehow entrapped into attending Greenwich Magistrate's Court where he would, as we shall discover in a moment, be arrested."
"She does not see it as her role to question a police officer's authority and would have accepted his assertions that a warrant had been issued and needed to be executed no matter what race, ethnic or national origin of the individual concerned. She focused on how the process could be undertaken with least embarrassment to Mr Daly."
The Employment Tribunal noted how she had attempted to mitigate the embarrassment and distress that the arrest might cause the Claimant. She was found to have acted as sensitively as possible and with courtesy and respect. She also arranged for the Claimant to be brought to a closed court without members of the public being present to hear the process in front of the magistrates:
"... and somehow managed to persuade the authorities to close the court for Mr Daly."
The Employment Tribunal found that Ms Rodal considered it necessary to follow the procedures to the letter while maintaining the Claimant's dignity insofar as possible. She was not authorised to dispense with the normal procedures:
"... and would have treated anybody in a similar manner."
She also arranged for the Claimant to be placed in a cell in an area away from normal prisoners while they waited for the hearing to commence.
"In spite of the strenuous efforts made by Ms Rodal, Mr Daley was very indignant about his treatment and failed to accept or appreciate that Ms Rodal was simply following procedures given the fact that Mr Daley had been arrested for breach of court orders and non appearances. At this point Mr Daley resolved to leave Serco and considered that he no longer had any trust and confidence in the organisation. It was, for him, a point of no return."
The Claimant was suspended from operational duties on 20 April pending an investigation into his arrest.
"By failing to progress the Claimant's grievance dated 26 May 2006 relating to his arrest on 18 April 2006 (as at the date on which he presented his second claim on 29 December 2006)."
"Respondent's denial of the existence of the VAR trip sheet for 18 April 2006."
The Employment Tribunal was satisfied (and indeed it was uncontroversial) that a VAR trip sheet for 18 April 2006 outlining the Claimant's duties that day had been created. That slip would have contained movement details. The whereabouts of this document were unknown. It was not before the Tribunal. The Respondent accused the Claimant of having taken it and the Claimant accused the Respondent of suppressing it. It was common ground that records of the Respondent's Banbury base were stored in Solihull. Mr Daly had requested the sheet from Mr Cull in his letter of 23 May 2006 and Mr Cull had replied to state that the information could be requested from the administrator at the base. The relevant base for this purpose was that at Woolwich and the Employment Tribunal found that the Claimant did not ask for the trip sheet from the Woolwich base.
"Ms Rodal convened a disciplinary hearing in accordance with the procedure at which Mr Daley was accompanied by his representative, Gerry Walsh. He was notified of the hearing by letter of 14 June and the hearing took place on 29 June 2006. At the hearing, Mr Daley aggressively challenged Ms Rodal's suitability to judge the case and repeatedly asked for a more senior manager and accused Ms Rodal of bullying him. He was high handed and arrogant during the meeting. Ms Rodal resisted Mr Daley's request. It was her job as his line manager to conduct the disciplinary and she was undertaking it as fairly as she could. Ms Rodal has a very mild and gentle manner and is courteous and soft spoken. She is measured, thoughtful and calm. We believe that her manner was such at the disciplinary hearing on 29 June 2006. Mr Daley refused to view the CCTV footage with Ms Rodal at the hearing and after 25 minutes, without engaging in the substantive issues, he walked out of the hearing refusing to play any further part (we find the notes at p542 to be accurate)."
The Decision of the Employment Tribunal
"In this case the Claimant relied on breach of the implied term of trust and confidence and the allegations in all the matters listed as live issues set out above in support of an alleged fundamental breach of express and implied terms. The case was argued as so called ordinary unfair dismissal pursuant to s.98 ERA 1996, as well as dismissal as direct race discrimination, race victimisation and race harassment and disability discrimination.
For the purposes of establishing constructive dismissal, the claimant must prove on the balance of probabilities, that there has been a fundamental breach of contract which goes to the root of the contract of employment entitling the Claimant to consider himself discharged from any further obligation forthwith. We must analyse whether the Claimant left as a result of any such fundamental breach as might have been found, or for some other, unrelated reason. An employee must not delay unreasonably and by so doing inadvertently affirm any repudiatory conduct.
The doctrine of last straw may apply. In such cases the final straw does not of itself need to amount to a breach of contract when viewed in isolation, but the tribunal may consider the totality of the conduct of the Respondent."
"Constructive dismissal is argued as disability discrimination, race discrimination and race victimisation as well as so called ordinary unfair dismissal. The starting point however is whether there had been a dismissal in accordance with s95(1)(c) ERA 1996.
In this case as is clear from our findings of fact, from the unequivocal evidence of Mr Daley in response to questions from the panel and Ms Tether, he decided that the employment relationship was at an end on the day of his arrest at Greenwich Magistrates Court on 18 April 2006. That was the final straw for him and he repeated this evidence on several occasions. The evidence was surprising, so the Tribunal repeated the question to be clear. Mr Daley reiterated that as far as he was concerned the employment relationship was at an end then. He had reached the point of no return as he told us he believed that the Respondents had engineered his arrest that day.
He did not however resign until over 15 months later on 26 July 2007. His delay is fatal to the claim. It also leads us to conclude that Mr Daly was utterly cynical in his dealings with the Respondent from 18 April 2006 onwards. It calls into question his motivation and purpose in raising the numerous grievances, complaints and issues thereafter, which is not necessary for us to consider for the purposes of this decision, save to reiterate that he was not constructively dismissed within the meaning of s95(1)(c) ERA 1995. Absent a dismissal, the allegation cannot succeed in the context of any of the DDA, RRA or ERA provisions.
But even if Mr Daley could overcome the problem, more fundamentally still, the Claimant has not established any breaches of contract by the First Respondent (whether fundamental or otherwise). The express contractual terms have been complied with concerning all the allegations, for example, the wearing of trainers, entitlement to sick pay, suspension and the handling of disciplinary proceedings.
We also considered whether the implied duty of trust and confidence had been breached in this case. Of particular concern to Mr Daley was how he came to be sent to Greenwich Magistrates Court on the day he was arrested. He suspected it had been deliberately manoeuvred so that he would be arrested and humiliated. If that had indeed been the case it would undoubtedly raise questions of trust and confidence, but we are satisfied that it was not the case. There was ample evidence before us that a warrant for Mr Daley's arrest, not backed for bail, had been issued several days before his actual arrest. Such a warrant can be executed anywhere and requires the police officer to take the person named in the warrant to court, from anywhere. There is therefore nothing special in Mr Daley's being at Greenwich that day. This was a central and significant flaw in the Claimant's argument. The issue of the warrant was nothing to do with the Respondent - it was to do with Mr Daley's failure to attend court when summonsed and his failure to pay off any of his fines in the meantime. If the Respondent knew of the warrant for his arrest, they could have tipped off any police officer anywhere of Mr Daley's whereabouts and contrived a far more public and humiliating arrest and court appearance. The careful and sensitive way in which Ms Rodal treated Mr Daley on his arrest, suggests the opposite: that the Respondents were doing everything they could to minimise the undoubted embarrassment factor for him.
If the Respondents were out to get Mr Daley - the essence of the allegation of breach of the term of trust and confidence, they did not make a very good job of it. Our conclusions below about the various disciplinary hearings and appeals are equally apt here, in the context of constructive dismissal. The obvious and, in our view, correct inference is that they were not."
"Let us stand back a moment from the detail of the allegations. In the 3 year period that Mr Daley was at work, the Respondent received a complaint of sex harassment by him from Ms King; he failed to inform his managers about numerous Court appearances which resulted in his arrest and conviction resulting in a 28 day prison sentence suspended for 2 years (the maximum period of suspension permitted); complaints by other members of staff; complaints from a cyclist member of the public of being abused by him; he refused to wear the proper footwear or provide medical evidence as to why trainers were necessary; he made constant complaints against every manager who sought to manage him, especially the female managers; he was involved in a road traffic accident whilst driving a 12 cell prison van; and, he was alleged to have incited colleagues to undertake a revenge attack on a prisoner.
The incidents set out above are not comprehensive. The suggestion that the allegations were somehow fabricated was preposterous on the evidence before us. In relation to some of the allegations Mr Daley unwittingly corroborated the management case. For example in relation to his abuse of the cyclist - he admitted telling him to get on his bike and deliberately cutting off the cyclist in the cycle lane so that he was forced to dismount.
Contrary to the assertions of the Claimant, the Respondents have made strenuous efforts to keep a clearly wayward, uncooperative and hard to manage employee within their employment, notwithstanding his behaviour and performance difficulties. His behaviour towards his line managers was rude and aggressive and he failed to take reasonable directions from them. This can be seen from the tenor of his correspondence at the time; it was also apparent to us in the way the Claimant gave his evidence and the way he spoke of them in disparaging and unpleasant terms; and through his body language and demeanour of contempt towards them when they were giving their evidence. He clearly had no respect for them, a lack of respect which he did not seek to hide either during his employment or afterwards, and he spent considerable efforts thwarting their attempts to manage him.
It is the Claimant's case that the Respondents acted in concert together to discriminate against him on racial grounds, to victimise him and to harass him. Such an interpretation is not supported by the evidence. Much play is made of the successful appeals Mr Daley brought against decisions by his line managers. We note there has been confusion in the management of Mr Daley. But the confusion has been wholly to his advantage as he sought to exploit and undermine his line managers by appealing to more senior, male, officers who would, on occasion overturn decisions by less senior managers. The conclusion to be drawn from this is not, however, of a conspiracy, as alleged, but the opposite. It demonstrates fair mindedness that Mr Leonard overturned previous disciplinary sanctions, as did Mr McPherson on occasion. Had the Respondents been acting in concert to discriminate against or harass Mr Daley, there would have been less confusion and more consistency of decision making."
"Demonstrates Mr Daley's failure to take responsibility for his own actions and seek to blame everyone but himself."
"Was to challenge Ms Rodal's authority to hear the disciplinary proceedings against him - to seek to deflect the charges by aggressive tactics."
"There is nothing from the evidence that we have heard - either direct or from which inference can be drawn - to suggest that Mr Daley had been treated less favourably on grounds of race, victimisation or that he has been harassed, as defined in relation to any of his many allegations. The burden of proof has not shifted in relation to any one of the allegations made by Mr Daley. Furthermore, the alleged detriments and incidents of less favourable treatment, acts and omissions relied on were all explained on non-racial, non-victimisation and non-harassment grounds. Had the burden of proof shifted and if it were necessary for the Respondents to explain themselves, then they have more than adequately done so. The management actions taken against him, such as they were, were wholly unexceptional and predictable responses to his behaviour and we are satisfied that anyone of a different racial group, or who had not made a complaint of discrimination, who had behaved in the way the Claimant behaved, would have been treated no more favourably.
Our findings of fact on each allegation are set out above. In none of them has the burden of proof shifted, and, in any event, in relation to each of them the Respondent has shown a non-racial, non-victimisation and non-harassment reason for their treatment. We accept that the Claimant has performed a protected act by 21 November 2005."
Grounds of Appeal
The Claimant's Submissions
Respondent's Submissions
"The EAT must respect the factual findings of the employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not "use a fine toothcomb" to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law."
"…Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case either in terms of fact or law…their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought upon any such analysis. This, to my mind, is to misuse the purpose for which reasons are given."
"There is a general recognition in the common law jurisdictions that it is desirable for Judges to give reasons for their decisions, although it is not universally accepted that this is a mandatory requirement – "there is no invariable rule established by New Zealand case law that Courts must give reasons for their decisions", per Elias CJ in Lewis v Wilson & Horner Ltd [2000] 3 NZLR 546 at 565. While a constant refrain is that reasons must be given in order to render practicable the exercise of rights of appeal, a number of other justifications have been advanced for the requirement to give reasons. These include the requirement that justice must not only be done but be seen to be done. Reasons are required if decisions are to be acceptable to the parties and to members of the public. Henry LJ in Flannery observed that the requirement to give reasons concentrates the mind of the Judge and it has even been contended that the requirement to give reasons serves a vital function in constraining the judiciary's exercise of power – see Professor Shapiro's article 'In Defence of Judicial Candor' (1987) 100 Harv L Rev 731 at 737. The function that judgments play under the common law in setting precedents for the future has also been identified as one of the justifications for the requirement to give reasons, although as Mahoney JA stated in Soulemezis v Dudley Holdings (1987) NSWLR 247 at 273:
"The court's order is a public act. The judgment given for it is a professional document, directed to the parties and to their professional advisers. It may, in a particular instance, delineate, develop or even decorate the law but that is peripheral and not essential to its nature."
We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost."
"This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge's conclusion should be identified and the manner in which he resolved them explained."
"Written reasons for a judgment shall include the following information -
(a) the issues which the tribunal or Chairman has identified as being relevant to the claim;…
(c) findings of fact relevant to the issues which have been determined;
(d) a concise statement of the applicable law;
(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues."
"Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27 at para 34."
Conclusions
"A significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract."
6:17 (Sick Pay)
6:19 (Progression of Grievance)
6:23 (Denial of Existence of VAR Trip Sheet)