![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Retirement Security Ltd v Wilson (UNFAIR DISMISSAL - Constructive dismissal - Reason for dismissal including some other substantial reason) [2019] UKEAT 0019_19_1107 (11 July 2019) URL: https://www.bailii.org/uk/cases/UKEAT/2019/0019_19_1107.html Cite as: [2019] UKEAT 19_19_1107, [2019] UKEAT 0019_19_1107 |
[New search] [Contents list] [View without highlighting] [Printable PDF version] [Help]
At the Tribunal | |
Before
HER HONOUR JUDGE EADY QC
(SITTING ALONE)
MISS A WILSON |
APPELLANT |
ROLLS BUILDING, 7 ROLLS BUILDINGS, FETTER LANE, LONDON, EC4A 1NL AT THE TRIBUNAL ON 11 JULY 2019 BEFORE HER HONOUR JUDGE EADY QC (SITTING ALONE) RETIREMENT SECURITY LTD |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant |
MR R KOHANZAD (of Counsel) Instructed by: Peninsula Business Services Ltd The Peninsula Victoria Place 2 Cheetham Hill Road Manchester M4 4FB |
For the Respondent |
MISS A WILSON (The Respondent in Person) |
SUMMARY
UNFAIR DISMISSAL Constructive dismissal
UNFAIR DISMISSAL Reason for dismissal including some other substantial reason
UNFAIR DISMISSAL Reasonableness of dismissal
The ET upheld the Claimant's complaint of constructive unfair dismissal, finding that the Respondent's conduct of an investigatory process into allegations of misconduct was such as to be likely to destroy or seriously damage the relationship of trust and confidence and amounted to a fundamental breach of the implied term. The Respondent appealed, arguing (1) the ET had erred in failing to specifically consider whether it had shown a potentially fair reason for the dismissal and whether that dismissal fell within the band of reasonable responses; and (2) the ET had transposed the fair hearing/natural justice requirements of a disciplinary hearing on to an investigation meeting.
Held: dismissing the appeal.
The Respondent was seeking to put its case on a basis that had not been pursued before the ET; the ET had clarified the points in issue at the outset of the hearing, which did not include an alternative case that any (constructive) dismissal was nevertheless fair. Although a finding of constructive dismissal did not necessitate a finding of unfairness, it remained for the Respondent to show the reason for that dismissal and that it was capable of being fair. The difficulties that might arise for an employer in this regard did not absolve a Respondent from the burden imposed by section 98(1) Employment Rights Act 1996 and did not require the ET to construct a reason on the Respondent's behalf. In any event, on the ET's findings of fact, the Respondent's conduct of the investigation process the conduct that had entitled the Claimant to terminate the contract of employment had been so flawed that the Claimant could reach no other view than that the Respondent wanted to be rid of her; that did not establish any reason that was capable of being fair for section 98 purposes.
As for the second ground of appeal, although the way in which a disciplinary investigation is to be conducted will depend on the particular circumstances of the case, the ET had permissibly found that the Respondent had acted in such a way as to breach the implied term. No error of law was disclosed.
HER HONOUR JUDGE EADY QC
Introduction
The Factual Background
" Owner safety
Illegal deprivation of liberty
Confidentiality
Alleged theft
Not following internal accounting procedures- petty cash
Neglect
Concerns from Directors
Not following direct instructions
Improper leadership."
"26. . Gaynor Davies is described as a companion. The claimant said she told her she was supporting her. The evidence of Ben Yates was that she was there to assist him and she herself said she was there to assist all parties. The role of a companion at a disciplinary hearing is a statutory matter. This was an investigatory meeting given it was after a suspension it must have been part of a formal rather than informal process."
"39. The claimant believed that the respondent had reached the conclusion that she was guilty of serious misdemeanours having made serious allegations at the meeting but shown her limited information to justify any of the concerns. She felt the respondent had no confidence in her ability and had not given her any fair opportunity to answer a catalogue of half-baked allegations. She accepted in some respects if she had made mistakes she could learn from them but did not believe the respondent wanted her to continue in their employment. She had not knowingly put any owner at risk. She did not consider she had been given a fair hearing or that there was a will to continue a fair investigation. The five Directors had in effect without her being shown evidence of their concerns sealed her fate. Given the lack of a fair procedure in dealing with her to date, she considered she would face an unjustified dismissal in the circumstances and so if she was to continue working in the sector the only option was to resign. The cause of the resignation was the conduct of the respondent."
The ET's Decision and Reasoning
"44. .... In my view the respondent's investigative process was so flawed that the claimant could reach no other view than the respondent wanted rid of her. In my judgement the term of mutual trust and confidence was breached by the respondent as a result of its formal processes in suspending and investigating this claimant from late January to 8 February."
And continued
"45. In particular offering a companion who becomes the Chair of a formal investigatory process is wholly unfair and unsatisfactory. To give the claimant a list of 9 very serious "allegations" which were not allegations but were headlines is to wholly ambush her in the process of an investigatory meeting."
"46. should have been allowed to fully understand what, when, where, it was said she was at fault. She should not have received a headline list 24 hours before a significant meeting. She had no proper time to prepare."
Continuing:
"47. The meeting itself was very clearly unfair given the skewed roles of the participants. The claimant did not have any fair opportunity to answer the allegations against her. This was because full / anonymised statements were not shared with her at the meeting. The letter before told her not to contact anyone. She was told of Directors views in general terms but the documents were never shared with her despite the assertion she would be given "exact details". The respondent did not live up to its promise."
"51. the claimant succeeds in discharging the burden of proof upon her to show that the respondents have been in breach of the implied term of mutual trust and confidence. I have considered the impact of the employer's behaviour on the claimant and assessed objectively it was so significant that it could give rise to a fundamental breach. The conduct of the alleged investigatory meeting was high handed and ultimately served its purpose it resulted in the termination of the Claimant's employment."
It was on that basis that the ET held that the Claimant's claim should succeed.
The Grounds of Appeal
Submissions, Discussion and Conclusions
Ground (1)
"1. . Firstly, was the respondent in fundamental breach of contract by way of breach of the implied term of trust and confidence, if there was a fundamental breach, was the breach the cause of the claimant's resignation, thirdly was there a delay in the claimant resigning, or on the respondent's case did the claimant resign too soon."
Ground (2)
Disposal