![]() |
[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 £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 >> Jones v The Collegiate Academy Trust [2010] UKEAT 0011_10_2805 (28 May 2010) URL: https://www.bailii.org/uk/cases/UKEAT/2010/0011_10_2805.html Cite as: [2010] UKEAT 0011_10_2805, [2010] UKEAT 11_10_2805 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
At the Tribunal | |
On 29 March 2010 | |
Before
HIS HONOUR JUDGE SEROTA QC
MR B BEYNON
SIR ALISTAIR GRAHAM KBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR ![]() ![]() (of Counsel) Instructed by: Islington Law Centre 161 Hornsey Road London N7 6DU |
For the Respondent | MR MARK STEPHENS (of Counsel) Instructed by: Messrs Stone King LLP Solicitors 13 Queen Square Bath BA1 2HJ |
SUMMARY
UNFAIR DISMISSAL
Constructive dismissal
The Employment Tribunal correctly directed itself to the breach of the implied term of trust and confidence and was entitled to conclude that the Claimant had not been constructively dismissed.
HIS HONOUR JUDGE SEROTA QC
Introduction
Factual background
(a) On 2 January 2008 she complained that a pupil had bruised her arm by banging the door on her as she attempted to prevent him from running off. However, she did not refer to the bruising in her written record on the Portal (see 11:33).
(b) On 23 January the Claimant attempted to remove an umbrella from the pupil BJ. The Claimant maintained that her shoulder had been twisted but again she did not record any injury in the Portal. She informed the 'hot spotting' teacher but when BJ was interviewed about the allegation, in the absence of any corroborative evidence the teacher who attended as the 'hot spotting' teacher, Ms Bradbury, did not believe anything further could be done other than to recommend a formal detention by the Claimant.
(c) Also on 23 January the Claimant's wallet including her bus pass and memory stick were stolen. The wallet and bus pass were returned to her and there was no further investigation.
(d) On 29 January 2008 the Claimant maintained she was jostled by two students and suffered a bruise to the eye; she did not report or log this matter and did not want an investigation (as she had told her partner).
(e) On 30 January 2008 there was a further incident involving an unruly pupil. The Claimant put the 'hot spotting' procedure into effect and Mrs Williams attended; see 11:37. The Claimant wanted the pupil K removed at once but Mrs Williams decided that to do so would have led to an unacceptable confrontation and it was more appropriate for the matter to be dealt with at the end of the lesson, and at the end of the class, K and another disruptive pupil D, were removed by Mrs Taylor. The Claimant believed that Mrs Williams' action undermined her position.
"Hi Charlotte,
I'm really sorry I won't be in today. I can't cope with it. Thanks for our chat and the support you gave me yesterday, but I'm still finding it to hard. I was sick when I got home because I got myself so worked up and it is not helpful to the kids if I teach when I'm like this.
Bethany"
(a) While she was absent from work there had been no welfarevisit.
(b) She had not received appropriate support in relation to the assaults to which we have referred.
(c) She considered there was a perceived implication by the Respondent that she had improperly been taking time off.
"6. Further, we note that an employer may be held to be in repudiatory breach of contract not only if he breaks an express term but also if he infringes an implied term and therefore an employer will be held guilty of a breach which entitles an employee to resign and claim that he has been constructively dismissed, if the employer behaves in such a way which destroys the relationship of trust and confidence with his employee. We note that even if an employer's act which was the proximate cause of an employee's resignation was not in itself a fundamental breach of contract, the employee may be able to rely upon the employer's course of conduct considered as a whole in establishing that he was constructively dismissed."
"At the time of my resignation I was under lots of pressures. My health was a worry, I was financially worried, my depression was getting progressively worse, I was obviously suffering the potential loss of career, I was on SSP by then, there was no incapacity benefit as I had insufficient national insurance, SSP was finishing and it would be just be disability living allowance and child allowance. I had a mortgage. There was nothing else to do but to go to income support. I needed to leave by 31 August to get income support. How was I going to cope in the autumn term. I couldn't survive on DLA and child benefit alone. The financial worries all played a part in my decision."
"33. In regard to the treatment preceding these comments and the averred lack of support, the evidence showed that detentions were carried out, that colleagues and Ruth Williams did step in and did act. It may not have been as immediate as the Heads of the other Departments did but in the absence of any statistics or written evidence one way or the other, we accept the evidence of the Respondent's witnesses that this was at least adhered to whenever appropriate. Even if there could be said to have been any lack of actual support by failing to issue immediate detentions or punishments in accordance with the behavioural ladders or otherwise, there is no evidence on the facts before us of a prima facie case that these were acts of direct disability discrimination on the grounds of the Claimant's disability when taking account of the burden of proof regulations. The Claimant has failed in ourview
to make out a case that these were acts carried out either consciously or sub consciously on the part of the Respondent on the grounds of her disability."
"34. Mrs Williams in a specific incident, it was accepted did not remove an unruly pupil from the case. However, the explanation that was given for this came from Charlotte Taylor, i.e., that it was practice and procedure that if a pupil was not prepared to respond at all that a teacher should not then engage in a physical confrontation with a difficult pupil and should do the best that they could to calm the situation down. There is no evidence to suggest in ourview
that Mrs Williams did anything other than act in accordance with this procedure however unreasonable the Claimant may feel that this was and however much she believed this undermined her position in front of the class generally, given the surrounding circumstances. In that instance, there was good reason for the process that was embarked upon by the Respondent staff to try and deal with the matter. As it was, those pupils were later seen separately and were dealt with afterwards and therefore in conclusion having regard to the facts that we have found and the evidence presented to us, we do not conclude that the claims of direct disability discrimination against the Respondent and in particular by Ruth Williams are well founded are made out and are therefore dismissed."
"36. In January of 2008, there was little doubt that the Claimant was making avid use of the hot spotting procedure. All of the records show this. There was some issue about her logging on and recording on E Portal the details of the matters she said she was subjected to. However, what is clear is that at no stage on the E Portal does she record that she suffered bruising and/or physical harm at the hands of her pupils. There is no corroborative evidence before the Tribunal that would substantiate the injuries that she said she suffered by being assaulted or pushed by a pupil or pupils or in regard to the hand twisting incident when the umbrella was pulled from her grasp by pupil BJ.
37. With the lack of any such corroborative evidence and a denial in particular by pupil BJ, the school was left with only limited action available that it could take and on the evidence it took what action it could in those respects. The Claimant went off on long term sickness and did not return again until 4 March. During that period of time she was neither contracted by text message or phone on the evidence (the informal procedure that Charlotte Taylor had said was maintained between herself and her colleagues) nor was any message imparted to her that the cover work that she was supplying was anything other than welcomed and on this matter the Respondent is open in ourview
to some criticism."
"Whilst there were therefore some shortcomings on the part of the Respondent they did not in ourview
amount to either individually or collectively a fundamental breach of the Claimant's contract."
"42. The Claimant therefore reaffirmed her earlier thoughts about resignation that had been previously canvassed openly before the Respondent on 19 May. The Claimant did not therefore wait for her grievance to be resolved before she tendered her resignation. In taking all of this into account and the guidance given in the House of Lords case of Malik aforesaid the test that the Tribunal has to take into consideration as to whether there has been a breach of the implied duty of trust and confidence is if there has been no reasonable and proper cause for the employer's conduct was that conduct so calculated to destroy or seriously damage the relationship of trust and confidence between the parties, an objective test that has been followed in case law since that date. Whilst the perceived lack of support outlined above relied on by the Claimant may undoubtedly to her to have been unreasonable on the part of the Respondent, there is no evidence in ourview
objectively that this averred conduct was calculated to destroy or seriously damage the relationship of trust and confidence that should exist between the parties: The Claimant had already in our
view
come to the conclusion on 19 May that resignation was the only option and simply confirmed this in the July meeting. The failure by Charlotte Taylor therefore, to have reported back to her on her investigations as to her colleagues and to disclose the email that she submitted thereafter to Miss
Evans,
cannot in our
view
have formed part of the decision to resign. The Claimant simply reaffirmed in the June meeting, that which she had already come to the conclusion about in 19 May meeting. The reasons therefore that were set out in her resignation letter in particular the last straw i.e. the failure by the Respondent not to deal with her grievances was not in our
view
an unreasonable act on the part of the Respondent. The Respondent as stated was never put on notice of any time scale by which it had to reply to the
very
detailed grievance letter. It was a condition that was never set down in the grievance letter itself."
"44. In summary therefore, and despite the clear difficulties that existed at the end of the relationship between the Claimant and her colleagues (as perceived by the Claimant) we do not conclude that their actions towards her or the Respondent's behaviour generally, either individually or cumulatively amounted to a fundamental breach of the implied duty of trust and confidence thus entitling the Claimant to resign and claim that she was unfairly dismissed. That in particular, objectively that any such averred conduct or behaviour by the Respondent through its employees was calculated to destroy or seriously damage the relationship of trust and confidence between the parties as established in the guidance in the aforesaid case of Malik. For these reasons therefore we also find that her claim of constructive unfair dismissal is not well founded and is dismissed."
Notice of Appeal and submissions in support
(a) The date of the Respondent's knowledge of the Claimant's disability;(b) & (c) Points on reasonable adjustments;
(d) Direct discrimination.
The Respondent's skeleton argument and submissions
Constructive dismissal – Respondent's case
(a) The number of pupils in detention for behavioural problems (ET 11:17); this was dealt with at paragraphs 32-34.
(b) Dispute in relation to 'hot spotting' (11:19-20); again this was dealt with at paragraph 36.
(c) The "brusque"conversation with Mrs Williams (11:47); the Employment Tribunal found that this was so but at paragraph 32 explained why Mrs Williams acted as she did.
(d) (11:58) Refusal to accept notes. Mr Stephens submitted it was unclear who wished to hand up the notes and there was no suggestion the Claimant was unable to deal with her complaints. Further, she resigned before the process and clearly wished to do so from an early stage. He drew our attention to a passage from her re-examination which was accepted as being correct.
Breach of the implied term – Respondent's case
The Law
"55. 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."
"If the employer is guilty of conduct which is 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."
"That the employer shall not without reasonable and proper cause, conduct itself in a manner calculated and or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee." [our emphasis.]
"..For convenience I shall set out the [implied] term again. It is expressed to impose an obligation that the employer shall not:
'Without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.'
See Woodsv
W M Car Services (Peterborough) Ltd [1981] ICR 666, 670 (Browne-Wilkinson J) approved in
Lewis
![]()
v
Motorworld Garages Ltd [1986] ICR 157 and Imperial Group Pension Trust Ltd
v
Imperial Tobacco Ltd [1991] ICR 524."
"That the employer shall not without reasonable and proper cause, conduct itself in a manner calculated and or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. [our emphasis] Thus the employee need only show conduct calculated to destroy or seriously damage the relationship of confidence and trust or conduct 'likely' to have that effect; he need not show both."
"To constitute a breach of this implied term it is not necessary to show that the employer intended any repudiation of the contract: the tribunal's function is to look at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it: see British Aircraft Corporation Ltd.v.
Austin [1978] I.R.L.R. 332 and Post Office
v.
Roberts [1980] I.R.L.R 347. The conduct of the parties has to be looked at as a whole and its cumulative impact assessed: Post Office
v.
Roberts."
Conclusions