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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Smith v London Metropolitan University (Unfair Dismissal : Reasonableness of dismissal)  UKEAT 0364_10_2107 (21 July 2011)
Cite as:  IRLR 884,  UKEAT 0364_10_2107
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EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 18 February 2011
Judgment handed down on 21 July 2011
MRS L TINSLEY
Transcript of Proceedings
Messrs Davenport Lyons Solicitors
30 Old Burlington Street
Messrs Seddons Solicitors
5 Portman Square
UNFAIR DISMISSAL – Reasonableness of dismissal
VICTIMISATION DISCRIMINATION – Protected disclosure
The ET erred in holding that the Appellant lecturer was fairly dismissed for misconduct in refusing to undertake duties which the Respondent required her to undertake. The ET failed to consider whether the employer had conducted a proper investigation into the agreement reached as to those duties when the Appellant moved to a new academic department. That failure undermined not only their decision as to whether the employer had conducted a reasonable investigation into the misconduct alleged but also their conclusion as to whether dismissal for refusing to carry out certain duties was within the range of reasonable responses.
Case remitted to determine the fairness of dismissal under the Employment Rights Act 1996 section 98(4). Appeal from dismissal of the Appellant’s claim under the Employment Rights Act 1996 section 47B(1) dismissed. Cross-appeal from the finding that breach of grievance procedure was a fundamental breach of contract allowed.
Unfair dismissal claim remitted to an Employment Tribunal to determine the fairness of the Appellant’s dismissal under the Employment Rights Act 1996.
THE HONOURABLE MRS JUSTICE SLADE DBE
1. The Appellant Dr K Smith appeals from the dismissal by an Employment Tribunal (‘ET’) in a judgment entered in the Register on 19th April 2010 of her claims of unfair dismissal and of being subjected to an unlawful detriment by not investigating her second grievance and instead subjecting her to disciplinary proceedings on grounds that she made a protected disclosure within the meaning of section 47B(1) of the Employment Rights Act 1996 (‘ERA’). The Respondent, London Metropolitan University, cross-appeals from the finding at paragraph 10.2 of the judgment of the ET that the Respondent’s failure to permit a governor to be present at the Claimant’s further grievance appeal constituted a ‘deliberate and flagrant breach by the respondent of an important terms [sic] of the contract of employment’ and that this failure constituted a ‘fundamental breach’. References in this judgment to paragraph numbers are to those in the judgment of the ET.
Summary relevant findings of fact by the ET
2. The Appellant has a B.Ed Hons in Speech and Drama from the Central School of Speech and Drama, an MA and a PhD in Modern Drama Studies from the University of North London. The Appellant has no qualification in English Literature save for a C grade at A level awarded in 1979. She had been employed by the Respondent as a visiting lecturer and on 1 September 2000 she was employed by them on a permanent basis.
3. The only written contract between the Appellant and the Respondent before the ET was one dated 17 October 2005 which was said to supersede all previous contractual arrangements. Clause 4 provided that:
“4.1 You are employed as Senior Lecturer in Theatre Studies/Performing Arts. This post is currently located in the Department of Humanities, Arts and Languages at the Tower Building. However it is a condition of your employment that you may be required to work at any site or in any Department of the University.
4.3 Your duties may cover inter alia teaching and tutorial guidance, research and other forms of scholarly activity, examining, curriculum development, recruitment and admission of students, administration and related activities. You are expected to work flexibly and efficiently and to maintain the highest professional standards in discharging your responsibilities and in promoting and implementing the corporate policies of the University.
4.4 The make-up of your duties will be as set out in your job description. Changes to this may be necessary from time to time and these will be determined by your Head of Department in consultation with yourself, and will be reviewed regularly through the Performance Appraisal, Development and Award system. An Interpretation Agreement on the Contract of Employment for Teaching Staff is set out in the Teaching Staff Handbook. In particular, when deciding upon specific duties, your Head of Department will consider the matters set out in the ‘Interpretation Agreement on the Contract of Employment for Teaching Staff’ in the Teaching Staff Handbook.
22 If you have a grievance relating to your employment you are entitled to make use of the Grievance Procedure which is explained in ‘Interpretation Agreement on the Contract of Employment for Teaching Staff’ in the Teaching Staff Handbook.”
4. In the autumn semester of 2001 the relationship between the Appellant and Dr Counsell, who taught theatre studies, deteriorated. In March 2002 Dr Counsell lodged a complaint against the Appellant. A disciplinary panel in October 2002 considered that a complaint of serious misconduct by the Appellant would not be made but she was given an oral warning of six months’ duration.
5. By spring 2003 Dr Counsell was working mainly with the performing arts side of the Department rather than theatre studies. Ms Pike was now Dean of the faculty of humanities, arts, languages and education (‘HALE’) and from about the beginning of 2003 Mr Gallagher became the Appellant’s line manager.
“6.25 As a result of what had happened the employee support unit suggested to Mr Gallagher and Ms Pike that the only way to resolve the issue of the confrontation between the claimant and three of her colleagues in the theatre studies department, was for the claimant to make a move into the English literature department.
6.27 An informal discussion between the claimant and Dr Wilson [the programme director for English literature, creative writing and journalism] concluded that it would be viable to run a theatre studies strand of the English literature degree taught by the claimant.
6.28 The decision was then reached that the claimant would move into the English literature department, but the precise terms of the claimant’s role in that department was [sic] not set out in any document at the time of the move. Indeed, there was no document produced by the respondent which was contemporaneous with the claimant’s move into the English department.
6.29 However, there were two contemporaneous documents written by the claimant (an email at pages 195 to 196 dated 12 March and a further email 197 to 198 dated 15 March 2004). The email dated 12 March set out the theatre studies modules currently covered and taught by the claimant. The 15 March email indicated a meeting to discuss modules was about to take place with Mr Gallagher, and that there had been discussions in which the claimant had indicated her willingness to teach an Higher Education Orientation module in English literature (HEO). The claimant stated that she would not be able to offer straight English modules, stating that she needed an English degree in order to do so. She also indicated that she was probably not in a position to be able to ‘fill in’ on English modules that needed staffing. She suggested that her contractual identity be changed to ‘Theatre Studies in English’. Finally she wanted all her modules to be re-coded so they were English-coded modules, and thereby the theatre studies department would have no entitlement to require her to teach them to theatre studies students. (The reasoning behind this last request was that the claimant did not want to be line-managed or under the direction of any of her former colleagues.)
6.30 The tribunal is not able to make any further findings of fact as to what occurred in semester B of 2003/2004 because it had no evidence from Mr Gallagher or Dr Wilson or Dr Hogan [academic leader for theatre studies].”
“6.32 …it was the understanding of Dr Wilson that the Claimant was going to teach some English subjects and that she would become a flexible and valuable member of the English Department.”
8. The Appellant taught a Higher Education Orientation (‘HEO’) course for two hours on a Wednesday in Semester A of 2004/2005. HEO modules are designed to ensure that students have the requisite level of basic academic and subject specific skills to participate in their chosen undergraduate course. In addition to basic skills the ET found at paragraph 6.34 that
“…these modules require a certain amount of subject-specific content and consequently subject-specific expertise from a lecturer to provide something of relevance to the academic needs and expectations of different groups of students.”
“6.44 Dr Wilson replied that he had understood that the claimant would take on other English work as part of her move into English as well as the HEO, he was looking for support in fiction and poetry. Her reply was that as a theatre studies specialist, poetry and fiction were not amongst the areas in which she was competent or skilled in teaching. She indicated that she had withdrawn from the HEO module because she could not cope with the English literature students’ questions. She also stated: ‘My personal timetable is exactly that – mine. It is not something over which the team have jurisdiction.’ On 14 July the claimant emailed Mr Gallagher forwarding him the email dated 12 March 2004 (referred to in clause 6.29 above). She stated that if current requirements of the English team had been made clear she would never have agreed to move there and confirmed that she was neither qualified nor skilled nor experienced in the field of English literature.”
“…she could not teach English modules because she was neither qualified, skilled, nor experienced to do so. She also stated that she was not contracted to do so either.”
The Appellant asked Ms Pike whether she was seriously suggesting that a C grade in English A level in 1979 qualified her to teach English literature at degree level.
11. On 13 September 2006 the Appellant raised a grievance that she was being required to teach English modules which she was not qualified or contracted to teach. There was a further dispute between the Appellant and Dr Page about the suggestion that she should do administrative work in relation to the recruitment of students.
13. A grievance appeal hearing took place on 11 December 2006. The appeal panel comprised Dr Aylett, deputy vice-chancellor-academic and Miss Fawcett, the director of undergraduate development. The ET held:
“6.69.1 They rejected the claimant’s suggestion that her move to the English literature department was on the basis that the claimant would only teach established theatre studies modules in that area.
6.69.2 They further determined that the request made of her to teach subjects other than theatre studies were [sic] not in respect of modules outside her qualification, knowledge, skills or contract. Insofar as they may have been outside the claimant’s experience, it was suggested that enough time had elapsed since the claimant’s transfer to allow her to develop sufficient expertise and to widen her experience, and where necessary, undertake additional preparation to compensate for that lack of experience.
6.69.7 The panel determined that the way forward was as suggested by Ms Pike, namely, that the claimant should continue with discussions about increasing her teaching within the English literature team to include modules other than theatre studies, but to include a future option of teaching modules in the theatre studies team where appropriate opportunities arose. She was commended to have further discussions with the managers within the English literature team to build up her teaching hours to an appropriate level.”
14. The Appellant did not teach the HEO module in Semester B 2006/2007. She had taken the stance that it was inappropriate to discuss the HEO module because it was subject to an appeal under Stage 4 of the grievance procedure.
16. Pursuant to paragraph 4.4.1 of the Respondent’s Procedure for Dealing with Individual Grievances, a Stage 4 grievance panel should include the ‘chair of the Finance and Human Resources Committee or, in their absence, a lay member of the University’s governing body’. The ET made a finding to this effect in paragraph 6.7.
17. The Appellant maintained that in accordance with Stage 4 of the Grievance Procedure a member of the governing body should be a member of the panel. By letter dated 2 April 2007 Mrs Bailey, a principal Human Resources adviser replied that the Stage 4 panel would be made up of the Vice-Chancellor and the Director of Human Resources.
18. By email dated 3 June 2007 the Appellant’s representative informed Mrs Bailey that in the light of the failure of the Respondent to arrange the attendance of a University governor, they would not be attending the appeal. The hearing was therefore cancelled.
“6.116 (The tribunal specifically finds as a fact that at the senior academic level, at which the claimant operated, it would be considered insulting to the claimant for Dr Page to specifically nominate an English module for the claimant to teach in the future, and then instruct her to attend courses which would assist her in being able to teach that particular module. It is the duty of the member of academic staff in such circumstances, in the spirit of co-operation which is required, to consider the available modules in English, choose one or more in which they have an interest and then proceed to go on the courses involving staff development to enable them to be able to conduct at least a lecture to the students on that particular subject. With time the ability to conduct a seminar would then flow with the greater knowledge required.) The claimant responded immediately by email. She stated that theories of the text and the HEO modules were outside her area of contract, knowledge and subject area, and were currently still the subject of an ongoing grievance, the role of diversity co-ordinator was also the subject of the outstanding grievance procedure, and once resolved that role could be re-negotiated.”
20. By email of 13 February 2008 the Claimant raised a second grievance asserting that ‘I am feeling harassed and stressed by your constant criticism, your attempts to undermine my professionalism, and by the time it is taking to deal with each of the problems you create; and I would ask you now to allow me to get on with my job without further harassment’. She wrote that she was aware that disciplinary action was being proposed. The ET held:
“6.118 (The tribunal, therefore, specifically rejects the assertion made by the claimant that the reason why disciplinary action was taken was because they had become aware that she had raised a second grievance. The position was the opposite. The claimant raised the second grievance after she knew that disciplinary actions was being proposed.)”
“(1) Deliberate refusal to carry out the legal requirements and/or reasonable university instructions regarding the normal duties of the job.
(2) Vexatious and/or persistent behaviour which causes serious disruption and/or disharmony within the workplace.”
22. Following a disciplinary hearing on 12 June 2008, the Appellant was informed by letter dated 9 July 2008 that she was to be dismissed with notice. The chair of the Disciplinary Panel, Professor Lister, wrote that:
“The view of the department is that you have deliberately refused to engage in any meaningful way in organising and planning your work, which has resulted in you failing to fulfil a full timetable and so comply with the contractual requirements of your post.
We also heard in some detail about the type of work you had in fact been asked to undertake, which was outside of your specialism of Theatre Studies. From the documentation, these requests have included: teaching “Reading 19th century fiction” and “Literature and History 1: The Renaissance”; teaching a generic HEO module, which is designed for all new entrants in HAL, including Theatre Studies students; the role of diversity co-ordinator, and recruitment co-ordinator assisting the HAL recruitment and marketing. With the possible exception of the first two of these, we took the view that this was not work that could reasonably be described outside of any professionally trained lecturer’s ability or expertise. With regard to the first two it seemed they were both modules, which your managers considered to be areas where you might have an important contribution to make. We also took the view that, with the appropriate level of personal development and training, they should have been modules that someone of your experience could have been more than capable of teach [sic] within a relatively short period of time. We were not persuaded by your suggestion that you would not be able to teach any form of English literature unless you had a Phd in that subject.
In making our decision we considered carefully the responses that you provided to the enquiries about why you had failed to fully engage in negotiations with your managers. These included comments that:
· You did not consider that the requests made of you were reasonable.
· You would be happy to negotiate once your grievance was settled.
· The proposed administrative roles would have taken you over the maximum number of hours required in your contract.
· That, in your dealings with Adrian Page, you withdrew from discussions with him because he was offering you nothing new, and that there was ‘no way forward’.
These were replies which, once again, gave us serious cause for concern. We could not agree that the requests being made of you were unreasonable…. Finally, your suggestion that there was no point in negotiating with Adrian Page because there was ‘no way forward’, left us with very limited choices as to how this complaint could be addressed.
The disciplinary action was not instigated because of the standard of your work but because of your failure to perform your full contractual duties and to accept management direction.
The decision we reached was that the grounds on which the disciplinary action was initiated were found to be substantiated and your behaviour over a sustained period of time did amount to gross misconduct. In reaching this conclusion we referred to the definition outlined in the university’s Disciplinary Procedure, which indicates that the behaviour or conduct in question must seriously or irreparably damage the contract of employment making any further working relationship and trust impossible. Your own view of the situation is that there is no way forward, and after careful consideration we reach the conclusion that we shared that view. You will therefore be dismissed on notice.”
24. The Appellant’s appeal from her dismissal was heard on 13 October 2008 by a panel chaired by Mr Roper, the vice-chancellor. By letter dated 21 October 2008 the Appellant was informed that her appeal against dismissal had been rejected. The letter included the following:
“…even with the most charitable interpretation your assertion that you had a higher FST than your colleagues is insupportable. The documentation …demonstrates that your workload was well below that of your colleagues.
Your lack of willingness to accept duties in the extra-curricular areas such as those of recruitment cluster coordinator or diversity coordinator, or to diversify into areas such as production and direction conveyed a clear impression of someone who is inflexible and intransigent, and insensitive to the reality of a modern department in a modern university , which has changed considerably, and in the University’s view irreversibly, since you joined the University.
The Panel was unconvinced by your explanation of the need to protect the territorial integrity of your subject area, in the context of declining student numbers and staff resource constraints. It was clear to the Panel that the academic environment had changed, and in doing so it necessitated you to change and incorporate other related academic subjects into your portfolio, but you had not been prepared to change.
In your documentation you state repeatedly that the fault was anyone’s but your own. The panel found that the opposite was the case, and that you had been unmanageable for a considerably long period (by a series of managers) during which you knew what the Department’s requirements were, and during which staff development was offered but it was not reasonable to expect your employer to tolerate this. Sue Pike confirmed that in the context of her long management experience that your level of refusals to comply with reasonable requests had been extreme.
The Panel did not hear anything to indicate that the disciplinary hearing process of 12 June 2008 was subject to any breach of procedure.”
The Decision of the Employment Tribunal
“The question is, does the cumulative series of acts [by the employer] taken together amount to a breach of the implied term.”
“8.2 In respect of the employee the implied term of trust and confidence includes an implied term of cooperation. The employer has the right to exercise authority and to instruct and direct, namely to ‘manage his business as he sees fit’ and the employee has a duty to comply with reasonable instructions and directions. The responsibility for the running of the business and the methods of achieving the legitimate aims of the business ultimately lie with the employer.”
Further the ET held at paragraph 10.2 that the Appellant
“as an employee had implied in her contract of employment a term of trust and confidence which included an implied term of cooperation. She had a duty to comply with reasonable instructions and directions from the respondent.”
“The tribunal does not accept that the claimant was required to teach outside the remit of her qualifications and her contract. The tribunal agrees with the conclusions reached by Professor Lister, Mr Roper, Ms Pike and Dr Page that the claimant was perfectly capable of teaching the HEO module, which required a very low academic ability, and that the terms and conditions of her contract requires her to broaden her experience. In the view of the tribunal someone with the academic qualifications of the claimant was perfectly capable of teaching certain English literature modules provided that she had been willing to cooperate in selecting particular subjects to teach and liaising with Dr Page in relation to any further training she might require. The issue might be looked at on the basis that the claimant’s contention was that she was incapable of carrying out the role for which she was employed (which included expanding her knowledge and expertise into related subjects), but we are quite satisfied that this was a case of misconduct where the claimant was perfectly capable of teaching the subject she was requested to teach but chose not to do so.”
29. It was because the ET held that the Respondent was not in breach of contract on the basis they set out that they held that the grievance documents were not protected disclosures within the meaning of ERA section 47B(1). They proceeded on the basis that the Appellant’s complaints were not of a breach of a legal obligation as in their view the Appellant was contractually obliged to perform the duties requested of her by the Respondent.
30. The ET held that they were satisfied that the true reason for the Appellant’s dismissal was her misconduct in that she had been in breach of the terms of her contract, and not her complaints or the grievances which she had raised.
“deliberate and flagrant breach by the respondent of an important term of the contract of employment. …However the claimant chose not to treat herself as constructively dismissed but continued to work and take her salary. The law requires her to act promptly. The view of the tribunal s that when she received the letter from Mr McParland dated 11 October 2007 that crystallised the fundamental breach. It is the view of the tribunal that by 30 November 2007 at the latest the claimant was no longer able to claim constructive dismissal and thereby lost any entitlement to make such claims.”
The ET held that the consequence of the Respondent being in fundamental breach of contract by failing to allow the Appellant a Stage 4 appeal in accordance with the grievance procedure was that
“the respondent was therefore not able to rely on any misconduct of the claimant whilst that remained the position, from 1 December 2007 the claimant on any view was at risk of dismissal for misconduct if she failed to comply with the implied term of trust and confidence, as it affected her in her relationship with her employer.”
“The conclusion of the tribunal is that the respondent did conduct an extremely thorough investigation into the question of whether or not the claimant was being required to teach subjects she was not competent to teach. The voluminous documentation was considered by all the individuals in both the grievance procedure and the disciplinary procedure.”
“As set out above, there were no protected disclosures in this case and in those circumstances this part of the claim also fails.”
35. Accordingly the ET dismissed the Appellant’s claim of ‘ordinary’ unfair dismissal, dismissal for making a protected disclosure and of being subjected to a detriment contrary to ERA section 47B(1) by reason of making protected disclosures by not investigating her second grievance and instead subjecting her to disciplinary proceedings.
The contentions of the parties
Contentions of behalf of the Appellant
36. Mr Lachlan Wilson contended that the ET erred in not accepting that the Respondent had required the Appellant to teach outside the remit of her contract. In so holding it was submitted that the ET erred in
(1) seeking to identify a breach of contract which was not the breach relied upon by the Respondent;
(2) relying on an unidentified express contractual term that the Appellant should ‘broaden her experience’ as giving rise to a contractual obligation to teach English literature modules and the HEO module for English literature students;
(3) wrongly relying upon the implied duty of trust and confidence to:
(a) impose teaching obligations beyond the express term that the Appellant’s employment was as Senior Lecturer in Theatre Studies/Performing Arts;
(b) impose contractual obligations to teach subjects which the ET considered that the Appellant was ‘perfectly capable of teaching’;
(c) impose an obligation to train to teach in areas outside her subject area.
Mr Wilson contended that the errors in (2) and (3), which were those of the Respondent as well as the ET, led to the Respondent wrongly and unfairly to label the Appellant’s reluctance to teach outside her academic discipline as a lack of co-operation. If and to the extent that refusal to teach outside her subject area has been relied upon as a breach of the implied term of trust and confidence, the ET and the Respondent also erred.
37. It was accepted on behalf of the Appellant that she was bound by an implied contractual term to obey the reasonable instructions of her employer. This would extend to a requirement to adapt to new methods of working provided that the new methods were not so radically different that they lay outside the employee’s contractual obligations. In this regard Mr Wilson relied upon Cresswell v Board of Inland Revenue  ICR 508.
38. Mr Wilson contended that the extent of the implied terms found by the ET infringed the well known principles explained by the House of Lords in Liverpool City Council v Irwin  AC 239 at page 254. The terms implied by the ET were contrary to the express terms of the Appellant’s contract of employment; they did not result from established usage and were not necessary to give the contract efficacy. Further, custom and practice of working outside the Appellant’s contractually specified discipline could not be relied upon since if there were such working it had not been established as a matter of legal obligation (Solectron Scotland Ltd v Roper and others  IRLR 4 at paragraph 22).
39. Mr Wilson said that the Appellant gave evidence as to what was agreed with Mr Gallagher and Dr Wilson in 2004 as to her teaching duties when she was to move to the English literature department. Neither Mr Gallagher nor Dr Wilson gave evidence. The ET failed to make findings of fact as to the terms of any agreement reached on the Appellant’s teaching duties following her move to the English literature department.
40. Grounds of Appeal 2 to 6 support the principal Ground 1 and rely upon the same legal propositions. Further it was submitted that the ET failed to take into account the evidence of Dr Snaith and Professor Pattie that teaching English literature modules and the HEO module to English literature students would fall outside the Appellant’s academic discipline. Further it was said that the ET failed to take into account the evidence that the remodelled HEO module was designed to be more subject specific. Accordingly the fact that the Appellant taught the old HEO module to English literature students should not have been relied upon by the ET to establish that she could teach the redesigned module to such students.
43. Mr Wilson contended that the ET erred in failing to give reasons for dismissing the Appellant’s claim that the reason for her dismissal was that she had made protected disclosures in complaining and raising grievances that she was being required to perform duties outside her contractual obligations and in failing so to find.
44. Mr Wilson contended that the ET confused the law on constructive dismissal under ERA section 95(1)(c) with the fairness of a dismissal under ERA sections 95(1)(a) and 98. The Appellant did not resign: the issue of constructive dismissal did not arise. The effect of the ET’s judgment is that the Appellant should have resigned within a relatively short period of time after it became apparent that a governor would not sit on a panel to hear her Stage 4 grievance.
45. It was submitted that there was no basis in law for the finding of the ET that the effect of the Respondent’s fundamental breach of contract in failing to provide a properly constituted Stage 4 grievance panel was that between the date the breach became known to the Appellant, 2 April 2007 and 30 November 2007, the date the ET held that she should have either accepted the breach and resigned or was to be taken to have waived the breach, the Respondent could not dismiss her for breach of contract. The effect of the judgment of the ET was that the Respondent’s breach of contract ceased to be of any relevance since the Appellant’s employment continued beyond 30 November 2007.
46. It was submitted on behalf of the Appellant that her conduct which was labelled by the ET as ‘lack of co-operation’ was rooted in her insistence that her grievance should proceed to Stage 4. The ET erred in endorsing the Respondent’s view that insistence on determination of her grievance regarding her contractual duties by a panel which included a governor was a lack of co-operation on her part.
47. Mr Wilson contended that the ET erred in failing to take into account in determining the fairness of her dismissal the Respondent’s fundamental breach of contract in denying the Appellant her entitlement to determination of her grievance regarding her duties by a properly constituted Stage 4 panel. This was a significant issue as the Appellant’s contention that she was not obliged to perform the duties, which her refusal to undertake led to her dismissal, was the principal subject of her grievance. Further, a genuine and understandable dispute over the terms of her contract should not have been categorised as gross misconduct (Financial Techniques (Planning Services) Ltd v Hughes  IRLR 32).
48. Mr Wilson contended that the ET failed to give adequate reasons for dismissing the Appellant’s claim under ERA section 47B(1). The dismissal of her claim in paragraph 10.14 was un-particularised and unsubstantiated.
“…it was the understanding of Dr Wilson that the claimant was going to teach some English subjects’
was perverse. Dr Wilson did not give evidence and it was said that such a conclusion was contrary to an email from him indicating that he did not expect that the Appellant would teach English modules.
50. Mr Wilson submitted that the cross-appeal is a perversity challenge. It was for the ET on the facts to assess whether the provision regarding the composition of the Stage 4 grievance panel was such an important term that its breach constituted a fundamental breach of contract. The presence of a governor on the panel provided an element of independent scrutiny in the final determination of the Appellant’s grievance.
Contentions of behalf of the Respondent
51. On behalf of the Respondent, Ms Sarah Watson drew attention to the fact that the ET heard evidence from eight witnesses over nine days. One thousand pages of documents were produced. The ET’s decision was reached after three days of deliberations.
52. Ms Watson submitted that the conclusion of the ET at paragraph 10.1 that the Appellant was contractually obliged to perform the duties requested of her was open to them on the evidence. They could form their own opinion as to whether the Appellant was capable of teaching certain English literature modules. The evidence before the ET and their findings of fact supported their conclusion that the reason for the Appellant’s dismissal was misconduct. She had failed to co-operate in refusing to teach or even discuss English modules which she could be obliged to and was capable of teaching. The Appellant had been obstructive in her annual appraisal and did not engage in her assessment. It was submitted that the Appellant’s lack of co-operation was broader than her refusal to teach English literature modules. Ms Watson contended that the ET was entitled to reach such conclusions in paragraph 10.1.
53. Ms Watson relied upon express contractual terms to contend that the Appellant was obliged to perform the duties the Respondent required of her. The contract of 17 October 2005 set out her main terms. There was no written change to these. The Interpretation Agreement on the Contract of Employment for Teaching Staff also had contractual effect. By clause 4.3 of the contract the Appellant was ‘expected to work flexibly and efficiently’. Pursuant to clause 4.4 the make up of the Appellant’s duties was as set out in her job description but
“changes to this may be necessary from time to time and these will be determined by your Head of Department in consultation with yourself, and will be reviewed regularly through the Performance Appraisal, Development and Award system. An Interpretation Agreement on the Contract of Employment for Teaching Staff is set out in the Teaching Staff Handbook. In particular, when deciding upon specific duties, your Head of Department will consider the matters set out in the ‘Interpretation Agreement on the Contract of Employment for Teaching Staff’ in the Teaching Staff Handbook.”
54. Ms Watson submitted that it was made clear in paragraph 3.1 of the Interpretation Agreement that staff were obliged to participate in recruitment activities. The lecturers’ duties would be determined by the Head of Department in consultation with the member of staff concerned. Paragraph 3.2(h) provides that particular consideration would be
“…given to the development and delivery of new (for the lecturer) and innovative courses.”
It was submitted that a requirement to undertake a diversity role fell within paragraph 4.5(a) which made it clear that pastoral care fell within a lecturer’s administrative and developmental activities.
55. Ms Watson contended that the ET did not err in relying on the implied terms set out in paragraphs 8.2 and 10.2 of their judgment to support a contractual requirement that the Appellant undertake the duties requested of her. The ET found in paragraph 6.116 that in the ‘spirit of co-operation which is required’ the Appellant was obliged to consider and suggest English modules which she could teach. Ms Watson contended that such an implied term would be necessary to make the contract work.
56. Ms Watson submitted that there was no dispute between the parties as to the principles of law to be applied. She contended that on the evidence the Respondent had the contractual power to change the Appellant’s duties to require her to teach English literature modules, the HEO module to English literature students and to undertake a diversity role. The ET did not err in holding that the duties required of the Appellant by the Respondent were within the scope of her contract.
57. Ms Watson contended that the ET applied the correct test to determine the effect of the Respondent’s breach of contract in failing to provide a Stage 4 grievance panel which included a governor. The Appellant had waived the breach by not resigning and claiming constructive dismissal.
58. Ms Watson contended that raising a grievance did not in and of itself absolve the Appellant from engaging in discussions about the work she should undertake. If she had engaged in such discussions at her annual review both parties could have discussed her timetable.
Grounds 7 and 10: Protected Disclosure
59. Since the ET held that the Respondent was not in breach of contract by requiring the Appellant to undertake teaching of English literature modules and the HEO course for English literature students, Ms Watson submitted that they did not err in proceeding on the basis that the 14 letters of grievance and complaint relied upon by the Appellant were not protected disclosures within the meaning of ERA section 43B. In any event Ms Watson submitted that the grievances were not ‘disclosure of information’ so as to bring them within section 43B. She relied on Cavendish Munro Professional Risks Management Ltd v Geduld  IRLR 38 in which the EAT held that in order to fall within the statutory definition of protected disclosure there must be a disclosure of information. There is a distinction between ‘information’ and an ‘allegation’ for the purposes of the ERA. In that case a solicitor’s letter stating their client’s position in negotiation was not disclosing information. So too, it was said, in this case the Appellant in the 14 documents relied upon was not disclosing information. Further, it was submitted by Ms Watson, the ET did not err in dismissing the Appellant’s claim that the Respondent had subjected her to a detriment under section 47B(1) ERA by instituting disciplinary proceedings. Such proceedings had been initiated before the Appellant presented her second grievance. Nor did the ET err in failing to hold that the Appellant was dismissed for making a protected disclosure. Accordingly the ET did not err in dismissing the Appellant’s claims under ERA sections 47B and 103A.
60. Ms Watson contended that the ET erred in classifying the failure to include a governor as a panel member in a Stage 4 grievance panel as a fundamental breach of contract. The ET further erred in failing to give reasons for such a conclusion.
Statutory provisions: detriment or dismissal on the grounds of protected disclosure
In this Act a ‘protected disclosure’ means a qualifying disclosure (as defined by Section 43B) which is made by a worker in accordance with any of sections 43C to 43H.
(1) In this Part a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following-
(b) that a person has failed, is likely to fail to comply with any legal obligation to which he is subject.
(1) A worker has the right not to be subjected to any detriment by any act…by his employer done on the ground that the worker had made a protected disclosure.
(2) …this section does not apply where-
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of Part X).
An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”
Discussion and Conclusion
(1) finding that the reason for the Appellant’s dismissal was her conduct;
(2) finding that the Appellant was in breach of contract;
(3) failing to take into account the Respondent’s breach of the contractual grievance procedure in assessing the fairness of the Appellant’s dismissal;
(4) failing to find that the Appellant was dismissed on grounds that she had made protected disclosures within the meaning of ERA section 47B(1);
(5) Failing to give reasons for and dismissing the claim under ERA section 47B that the Appellant was subjected to a detriment by reason of making a protected disclosure
(6) holding that the Respondent was in fundamental breach of the Appellant’s contract by refusing to include a governor in a stage 4 grievance panel.
63. The central issue in this appeal is the contention by Mr Wilson on behalf of the Appellant that the ET erred in law in their findings of the scope of her express and implied obligations under her contract of employment.
The reason for dismissal
“What was the reason for the claimant’s dismissal. Was it that she had complained as in 2.1 above [14 letters of complaint and grievance regarding the duties she was being required to perform] or was it because the respondent considered that the claimant was in breach of the terms of her contract?”
65. The basis upon which the Appellant challenged the conclusion of the ET that the reason for her dismissal was misconduct was the contention that the ET erred in law in holding that she was in breach of contract by refusing to carry out duties which were within the scope of her contract. It was submitted on behalf of the Appellant that the reason for her dismissal was not her misconduct because she was not contractually required to perform the duties which she refused to undertake and for which refusal she was dismissed.
“The central issue before the Tribunal [found at paragraph 2.2 of the judgment] was the reason for the Claimant’s dismissal, which the Respondent contended was by reason of the Claimant being in breach of the terms of her contract, specifically by refusing to carry out the management instruction of teaching English Literature modules.”
“(a)…the breach relied upon by the Respondent was that the Claimant, by refusing to teach subjects requested, was refusing to carry out the legitimate requirements of her post and failing to carry out a reasonable management instruction.”
“…the tribunal is satisfied on the balance of probabilities that the true reason for the claimant’s dismissal was her misconduct. It was not because of the complaint nor the grievance she had made but because she was in breach of the terms of her contract.”
68. Even if the Respondent and the ET were in error of law in considering and holding that the Appellant was contractually obliged to undertake the duties requested of her and that therefore her grievances and complaints in that regard could, subject to Cavendish Munroe v Geduld, be regarded as protected disclosures, the ET made a finding of fact that the reason for the Appellant’s dismissal was misconduct, being in breach of the terms of her contract, and was not because she had made complaints and raised grievances about the duties she was required to undertake.
69. In determining the reason why an employer dismissed an employee an ET does not decide whether the employer was right or wrong in their view. The ET at this stage decides the reason why the employer dismissed. In this case the ET decided that the Respondent dismissed the Appellant because they considered her to be in breach of contract. Significant breach of contract constitutes misconduct. If an employer dismisses an employee for theft the reason for the employee’s dismissal is misconduct, even if the employer is wholly mistaken in their view that the employee has been guilty of theft. So in this case the ET did not err in holding that the reason for the Appellant’s dismissal was misconduct even if the Respondent (and the ET) were mistaken as to the scope of the Appellant’s contractual obligations. The challenge to the findings of the ET on the scope of her contractual obligations is relevant to whether they erred in their assessment of the reasonableness of her dismissal.
Breach of contract
70. Mr Wilson and Ms Watson rightly recognised that the question of whether the ET erred in holding that the Appellant was not required to perform duties outside her contractual obligations is at the heart of this appeal. If the ET erred in this regard that error would affect their decision as to whether the Respondent had carried out an adequate investigation, whether they had reasonable grounds for their belief that the Appellant was in breach of her contractual obligations and whether dismissal for the perceived breach of contract was within the range of reasonable responses of a reasonable employer. Whilst the Notice of Appeal, grounds and oral argument have concentrated on the contractual issue this affects all the elements which the ET considered in determining that the dismissal of the Appellant was fair.
71. The ET held that the Respondent considered the Appellant to be in breach of contract in refusing to undertake duties including in particular teaching the HEO module to English literature students and certain English literature modules. The ET held that the Respondent considered this to be a serious breach of contract constituting misconduct meriting dismissal. The issue of whether the Appellant was or was not in breach of contract in refusing to perform those duties is relevant not to the reason for her dismissal but to its fairness within the meaning of ERA section 98(4).
72. The basis for the conclusion of the ET that the Respondent had carried out a reasonable investigation into the allegation of misconduct against the Appellant was that such investigation revealed evidence that the Appellant was refusing to teach subjects she was competent to teach and
“thereby refusing to carry out the legitimate requirements of her post and failing to carry out a reasonable management instruction.” (Paragraph 10.7.)
It was because the Appellant was not prepared to
“indicate that she would henceforth carry out reasonable management instructions and cooperate with her managers and her colleagues”
that the ET held that her dismissal was ‘within the band of reasonable responses’.
“the claimant was not required to teach outside the remit of her qualifications and her contract.”
In our judgment whether or not the Appellant was required to teach within ‘her qualifications’ is not relevant to her contractual duty to do so. Her contractual duty is to be determined by reference to the express and implied terms of her contract.
74. The express term of her contract relied upon by the ET in paragraph 10.1 was a requirement that the Appellant ‘broaden her experience’. The ET set out at paragraph 6.3 what they regarded as the relevant terms of the contract. By clause 4.1 the Appellant was employed as Senior Lecturer in Theatre Studies/Performing Arts. The terms of the contract and the Interpretation Agreement set out by the ET in paragraph 6.3 of their judgment do not contain an express provision requiring the Appellant to broaden her experience. The ET refer in paragraph 10.1 to the
“role for which she was employed (which included expanding her knowledge and expertise into related subjects).”
The only reference to ‘related’ in the contractual provision set out by the ET is in clause 4.3 which follows after clause 4.1 the statement of the capacity in which the Appellant was employed. Clause 4.3 provides:
“Your duties may cover inter alia teaching and tutorial guidance, research and other forms of scholarly activity, examining, curriculum development, recruitment and admission of students, administration and related activities.”
This provision refers to activities related to those listed. It does not require the Appellant to teach subjects ‘related’ to theatre studies. In any event it is likely that such a term would be too vague to be contractually enforceable. Whilst teaching the study of plays may be a subject related to theatre studies would the teaching of novels or poetry?
76. The ET also relied upon an implied term of trust and confidence and co-operation imposing a duty on the Appellant to comply with reasonable instructions and directions of the Respondent. The ET held at paragraph 10.1 that in their view, which accorded with that of the Respondent, the Appellant was capable of teaching certain English literature modules. She was guilty of misconduct (breach of contract) in choosing not to do so. The ET did not specify which subjects the Appellant would have been contractually obliged to teach by reason of application of this implied term other than ‘certain English literature modules’ which she should have identified. The ET held at paragraph 10.3:
“It was incumbent on her, in our view, to look at the English literature modules that were proposed to be taught for a particular academic year and suggest a handful to Dr Wilson or Dr Page that she might have been able to assist with in full or in part. It was her duty to be co-operative but she failed totally in that duty.”
77. An implied duty on an employee to co-operate with his employer may well be said to be a part of the implied duty of trust and confidence. However, in our view, in the absence of express agreement or a necessarily implied term, that co-operation applies to the performance of agreed contractual duties. It cannot be relied upon to extend them.
78. On the facts of this case it appears that the Respondent may have been faced with a dilemma. The Appellant could not return to the theatre studies department and there was insufficient theatre studies work for her in the English literature department to fill a reasonable teaching timetable. However, in our judgment the Appellant could not be contractually required to teach English literature modules unless she agreed to do so. It is to be noted that in their conclusions the ET do not refer to the terms of any agreement reached between the Appellant and the Respondent as to what her teaching duties would be when she moved to the English literature department. In their findings of fact the ET held:
“6.28 The decision was then reached that the claimant would move into the English literature department, but the precise terms of the claimant’s role in that department was not set out in any document at the time of the move. Indeed, there was no document produced by the respondent which was contemporaneous with the claimant’s move into the English department.”
79. The ET refer to two emails from the Appellant of 12 and 15 March 2004. In the second of these she stated that she would not be able to offer straight English modules. She also indicated that she was probably not in a position to be able to ‘fill in’ on English modules that needed staffing. Although it appears that the ET heard evidence from the Appellant about discussions which she had with Dr Wilson regarding her duties in the English literature department the ET made no reference to such evidence. They held:
“6.30 The tribunal is not able to make any further findings of fact as to what occurred in semester B of 2003/2004 because it had no evidence from Mr Gallagher or Dr Wilson or Dr Hogan.”
80. In our judgment the ET erred in law in holding that the Appellant was contractually obliged to undertake teaching English modules and the HEO module to English literature students on the basis of an express term not referred to in their recitation of relevant contractual provisions and an implied term of co-operation which was extended beyond the Appellant’s agreed duties to enlarge their scope to an uncertain extent. Such a term was not necessary to give the contract of employment commercial efficacy. Clause 4.1 of the Appellant’s contract provided that she was employed as Senior Lecturer in Theatre Studies/Performing Arts. The ET reached their decision on the contractual obligations of the Appellant after she moved to the English literature department without making any findings of fact as to whether and if so what agreement had been reached with regards to what her teaching and other duties were to be in that department. In our judgment whilst it may be necessary to imply a term of co-operation to govern performance of contractual duties it cannot be relied upon in this case to enlarge those duties.
81. Even if the Appellant had been qualified in and capable of teaching subjects which she had not agreed to teach she would not thereby have become contractually obliged to undertake them. A teacher may have a maths degree and one in French. If she enters into a contract to teach French she cannot be required to teach maths simply because she would be capable of doing so.
82. Regrettably the ET may have been set on the wrong enquiry by the agreed issues identified at the Case Management Discussion. The questions posed in issue 2.1 (all issues were renumbered in the judgment of the ET with the prefix 2 replacing 3 in the CMD) included that of whether the Respondent
“…was failing or was likely to fail to comply with a legal obligation by requiring her to teach outside her contractual role and academic discipline….”
If the Appellant was dismissed because the Respondent considered that she was in breach of the terms of her contract the issues identified in 2.3 to 2.6 were:
“2.3 Did the respondent conduct a thorough investigation into the question of whether or not she was being required to teach subjects she was not competent to teach? [Italics added]
2.4 If so, did that investigation reveal evidence showing that the claimant was, by refusing to teach such subjects, refusing to carry out the legitimate requirements of her post and failing to carry out a reasonable management instruction?
2.5 If so, did the respondent’s officers genuinely believe that to be the case?
2.6 If so, was the claimant’s dismissal fair and reasonable in all the circumstances within section 98(4) ERA 1996? In particular, was the decision procedurally unfair because;
2.6.2 the respondent did not follow its own grievance procedure in relation to the initial grievance…”
83. These questions all indicate that the ET predicated the necessary steps in determining whether her dismissal for misconduct was fair on the Appellant being under a contractual obligation to teach subjects which she was competent to teach.
84. In our judgment in order to conclude that the Respondent had reasonable grounds to believe that the Appellant was contractually obliged to undertake the duties which she was refusing to perform the ET should have made findings of fact as to whether the Respondent had enquired into what was agreed between the Appellant and the Respondent as to the scope of her duties in the English literature department. No such findings were made. The ET only considered whether the Respondent had conducted a thorough investigation into whether the Appellant was being required to teach subjects she was not competent to teach. The ET did not consider whether the Respondent had investigated what was agreed about her duties on the Appellant’s move to the English literature department.
85. In addition to the question of what was agreed between the parties at the time of the Appellant’s move to the English literature department affecting the question of whether the Respondent had carried out a reasonable investigation, the terms of such agreement would affect the decision of the ET as to whether dismissal was within the range of reasonable responses. It may be difficult to conclude that the Appellant’s dismissal for refusing to undertake certain duties is reasonable if she was not contractually obliged to perform them.
Not taking into account the failure to implement the contractual Stage 4 grievance procedure in assessing the fairness of dismissal
“…already dealt with the matters relating to the failure of the respondent to allow the claimant a Stage 4 appeal.”
The way in which the ET had dealt with the failure to allow a Stage 4 grievance appeal was to hold that such failure was
“a fundamental breach of contract entitling the claimant to treat herself as constructively dismissed at the relevant time.”
The ET held the Appellant could have resigned and claimed constructive dismissal when she was told that the grievance panel would not be in conformity with the agreed procedure. She did not do so. The ET held that the Appellant lost the right to do so by 30 November 2007 at the latest. They suggested that the Respondent may have been unable to rely on misconduct of the Appellant to dismiss her during the period from 2 April 2007 to 30 November 2007.
87. We agree with Mr Wilson that the ET erred in failing to take into account in assessing the fairness of her dismissal the failure of the Respondent to provide the Appellant with a Stage 4 grievance panel constituted in accordance with her contract. Whether or not the Appellant had been entitled to resign and claim constructive dismissal by reason of the Respondent’s breach of contract was not the relevant question. Further, in our view there is no basis for the proposition advanced by the ET that the effect of their breach of contract was to deprive the Respondent of the right to dismiss the Appellant during the period when they held that she could have accepted the fundamental breach of contract as bringing her contract to an end and claiming constructive dismissal.
Failing to find that the Appellant was dismissed on grounds that she had made a protected disclosure within the meaning of ERA section 43A
88. In our judgment the ET did not err in holding that the Respondent’s reason for dismissing the Appellant was her misconduct. The misconduct was refusing to perform duties requested of her. Accordingly the ET did not err in failing to hold that the reason for her dismissal was that she had complained and raised grievances that she was being required to perform duties outside her contractual obligations. Even if the Appellant had been dismissed because she raised a grievance about being required to perform duties she was not contractually obliged to perform and if the grievance was therefore of a failure to comply with a legal obligation, such a dismissal would not in any event have been for making a protected disclosure within the meaning of ERA section 43A for reasons explained in Cavendish Munro. The grievances were not a ‘disclosure of information’.
Failing to give reasons for and dismissing the claim under ERA section 47B that the Appellant was subjected to a detriment by reason of making a protected disclosure
89. The ET made a finding of fact which was open to them on the evidence that the Respondent did not institute disciplinary proceedings against the Appellant because she had raised the second grievance. Further the second grievance and previous complaints were not protected disclosures within the meaning of ERA section 43A for the reasons given in Cavendish Munro.
Holding that the Respondent was in fundamental breach of the Appellant’s contract by refusing to include a governor in a stage 4 grievance panel: The Cross-Appeal
90. It was not contended on behalf of the Respondent that the Grievance Procedure was not of contractual effect. We accept the contention of Mr Wilson that the gravity of the admitted breach of contract by refusing to include a governor on a Stage 4 grievance panel was for the ET to assess. However in our judgment the approach of the ET to the significance of the Respondent’s failure to provide the Appellant with a properly constituted Stage 4 grievance panel for her claim for unfair dismissal was seriously flawed. Whether the Appellant could have resigned and claimed constructive dismissal was irrelevant to the question of whether the dismissal was fair. We agree with Ms Watson that the ET did not explain why the failure to appoint a governor to the Stage 4 grievance panel was a fundamental breach of contract. The finding to that effect in paragraph 10.2 is set aside. The Respondent’s failure was a breach of contract. The seriousness and relevant effect of the breach will be assessed by the ET to which this case is to be remitted for consideration of the fairness of dismissal.
91. The appeal from the dismissal of the claim of unfair dismissal is allowed. The claim for unfair dismissal is remitted for rehearing of the fairness of the Appellant’s dismissal under Employment Rights Act 1996 section 98(4). The finding that the reason for her dismissal was her conduct is to stand.
94. The parties have made written submissions on the question of whether the claim is to be remitted to the same or to a differently constituted Employment Tribunal. Ms Watson submitted that the ET had considered witness evidence over nine days and bundles of documents extending to 1309 pages. She submitted that it would be disproportionate for a new ET to have to consider all this evidence. She suggested that the original ET has the benefit of this extensive background to the case and can just hear or consider any additional evidence and submissions. This would result in a shorter hearing and speedier disposal of the case.
95. Mr Wilson listed the important errors in the decision of the original ET found by the EAT. In the light of these errors and in particular the failure of the ET to refer to the Appellant’s evidence as to what was agreed between her and Dr Wilson on her transfer to the English Department it is difficult to have any confidence that she would be given a fair hearing before the same ET.
96. As is apparent from our judgment, regrettably the original ET made serious errors in considering the Appellant’s claim for unfair dismissal. The ET held that the Appellant was dismissed because she was in breach of the terms of her contract. The ET failed to make findings as to whether and if so what terms were agreed when she moved to the English Department and made errors in considering the express and implied terms of her contract. These errors had an important effect on the consideration of the fairness of the dismissal.
97. We have regard to the judgments of the EAT in Sinclair Roche & Temperley (a firm) v Heard and another in particular the second judgment in those proceedings given on 2 November 2005 (UKEAT/0637/05/LA). Having regard to the matters set out in paragraphs 12 and 13 of the second judgment we remit this claim to a differently constituted ET for determining whether the dismissal of the Appellant was fair or unfair within the meaning of the Employment Rights Act 1996 section 98(4). This matter should not require consideration of 1300 pages of documents or nine days of witness evidence. The principles to be applied should be uncontroversial. We hope that this judgment may be of some assistance and that the parties may be able to agree a large part of the relevant evidence.