Appeal No. EAT/1090/01/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 October 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MRS R CHAPMAN
MR D A C LAMBERT

THANET DISTRICT COUNCIL	APPELLANT

MR MARK CHRISTOPHER WEBSPER	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR CHRISTOPHER McCOURT
(of Counsel)
Instructed by:
Thanet District Council
PO Box 9
Cecil Street
Margate
Kent CT9 1XZ

	
For the Respondent	MR TREVOR STANDEN
(Representative)

HIS HONOUR JUDGE J McMULLEN QC

1	This case is about constructive unfair dismissal in the context of work induced stress.  It is an appeal by the Respondent in proceedings against a Decision of an Employment Tribunal sitting over four days at Ashford, Chairman Mr David Booth, in 2001, promulgated with Extended Reasons on 30 July 2001.  We will continue to refer to the parties as Applicant and Respondent.  

2	The Applicant was represented by a work colleague with experience of representation, Mr Standen, and the Respondent by Mr McCourt of Counsel, both of whom have continued their representation before us.  The Applicant claimed constructive unfair dismissal and breach of contract.  The Respondent denied that the Applicant had been dismissed and contested the unfairness which the Applicant had alleged.  

3	The Applicant’s case before the Employment Tribunal was as follows:
“I was off sick with job-related stress for a year.  Supported by the Council’s doctor, I said I could not return to work in the same building as I had been employed in the Debt Recovery Section of the Council.  The Council had a contractual duty under its health and safety policy incorporated in my contract of employment, to offer me another post outside that building.  Their letter restricting the change to posts within the Recovery and Benefits Section was therefore a breach of a fundamental clause in that contract which amounted to a repudiation.  In the light of this and past events during my employment, I was entitled to accept that repudiation and terminate the contract.”

4   The essential issues before the Employment Tribunal had been defined in a directions hearing as follows:
(1)  Did the Applicant have one contract of employment for all the posts he held within the relevant grades, with amendments to that contract as he changed posts or did the changing of posts within the Council’s employment amount to the termination of one contract and the beginning of another on each occasion?  
(2)  Was there a term in the Applicant’s contract entitling him to be protected from risks to health and safety and to be entitled to any new posts, if one was available, to eliminate that risk and, if so, on what terms?

(3)  Did the Council breach that term?

(4)  Was that breach so fundamental that it entitled him to resign within the terms of section 95(1)(c) of the Employment Rights Act and thereby treat himself as dismissed?

(5)  If so, what was the reason for the dismissal?

(6)  Was it unfair?

5	The Tribunal decided that the Applicant was dismissed, the reason was capability and the dismissal was unfair.  Subsequently, a remedy hearing was held on 27 September 2001 at which the Applicant was awarded a basic award of £1,300.20 and compensation of £12,852, a figure which had been arrived at following a reduction by 50% on account of the Tribunal’s finding that he had failed adequately to mitigate his loss.  The Respondent failed to make payment until ordered by the County Court, following the Applicant’s claim for the debt.  No application had been made by the Council for a stay, pending an appeal before us.  

6	The case came before a different division of the Employment Appeal Tribunal on 22 March 2002, where a direction was given that the Chairman’s Notes of evidence were deemed unnecessary and excluding from the Notice of Appeal one ground. The other grounds have been heard today.
7	The Respondent appeals against the finding on the remaining grounds which have been set out in the Notice of Appeal, as amended, and in a very careful Skeleton Argument produced for the preliminary hearing and again for us today by Mr McCourt.  

8	The Applicant was employed by the Respondent in a number of different positions dating from 4 April 1994, rising to a position within the Revenue and Benefits Division of the Finance Department.  He was employed in the Recovery Section of that division.  The Applicant had changed from a number of other positions within the Council until he was deployed to the Recovery Section.  The Tribunal heard a good deal of evidence which it decided was irrelevant to its Decision about events taking place up to the end of 1998.  The evidence was given on behalf of the Applicant by Mr Standen, the Applicant, and Mrs Websper.  The Respondent’s relevant officers gave evidence and the Tribunal then decided that it had limited its consideration of evidence to the issues set out at the directions hearing.  

9	The Tribunal came to the conclusion that the facts relevant to the decision it had to make were very largely agreed, although, as it put it, clearly the employer’s and the employees’ perspective of them are different.  

10	On 26 November 1998 the Applicant went off sick, suffering from work-related stress, never to return.  In 1999, steps were taken to deal with the possible return to work.  There had been medical evidence concerning the difficulties he was suffering, and in the course of that evidence, the Respondent’s Occupational Health Officer, Dr Cochrane, wrote this:
“I do not believe this man will be able to return to his previous job, as he tells me it has caused him anxiety and depression.
If he could be found a suitable alternative - in a different department - it is likely that this would resolve his problems and his performance and attendance would be good.”

11	The situation became more acute in September 1999 because the Applicant had already had his pay reduced by half.  On 21 October, a further medical report was obtained as follows:

“His depression is related to work, stress and his circumstances rather than to any specific medical condition.  As there is no significant medical condition there is little more that I can say.
……As to the question of a detailed long term prognosis; as his condition is very much stress related this would depend entirely on whether the stress and the cause of his condition is relieved.  If he remains in his present job this is unlikely, as I said in my previous letter if he could be found alternative work it is likely this would resolve his problems and performance and attendance would be improved.”

The Tribunal noted that the response to that from the Respondent was significant.  
“I note that in your opinion there is no serious medical problem in relation to Mr Websper.  I am grateful for the clarification that as there is no specific medical condition your letter of 19 August was necessarily based on information given to you by the employee.”

12	We can see why the Tribunal regarded that as significant, because it gave this verdict:
“We have to say that it seems to us that the Respondents, who, as we have noted have found the Applicant to be confrontational, were forming the opinion that he was using the doctor to support his earlier objections to working in the Finance Department and to assisting his transfer to another department.”
In any event, the Applicant continued to write about his difficulty, and on 31 October, said this:
“Through [the relevant managers] you have made it abundantly clear to me that I am not welcome either within the Recovery Section or anywhere within the Council because of my “reputation” as a “troublemaker”.  
Under the circumstances, I have no alternative other than to offer you an ultimatum that should you not respond positively by 5th November 1999 I will have no alternative than to take other action.”

13	That led to a response from the manager, who said that she had explored the possibility of redundancy, but there was no alternative, and went on:

“That being so, although you have made it quite clear that you do not wish to return to the Recovery Section, I am able to confirm to you that the Council is willing to try to find an appropriate post within the Revenue and Benefits division, which has by far the largest number of posts of any area within the Council.”

14	As became clear, that was not satisfactory for the Applicant, and he then decided to resign, because on 7 November 1999, he said, amongst other things:
“It would appear that little has been achieved by that meeting other than my clear indication that I justifiably did not wish to return to my post within the Recovery Section.  It was as long ago as May of this year that I wrote to the Senior Personnel Officer stating I, with the support of my doctor, did not wish to return to the Revenue and Benefits division; the Council is now saying that it is “willing to try to find an appropriate post within the Revenue and Benefits division”. 
That being the case, the Applicant decided that he would resign with effect from 1 December 1999, the effective date of termination.  

15	The Respondent submitted, in response to the allegation of breach of implied terms, that there was no implied term entitling the Applicant to be moved elsewhere within the Department.  The Tribunal found that there was an implied term that the Respondent would safeguard the health and safety of the Applicant, that the insistence on his going elsewhere within the department was a breach, and that the Applicant was entitled to resign.  

16	The Employment Tribunal, we hold, considered the relevant authorities, as well as directing itself, as it said, to section 95(1)(c) (constructive dismissal) in that it cited directly from the judgment of Lord Denning MR in Western Excavating (ECC) Ltd -v-Sharp [1978] ICR 221 and in respect of an employer’s duty to a sick employee from Daubney -v- East Lindsey District Council [1977] IRLR 181 EAT Phillips J.

17	The Respondent submitted to us that the Tribunal had erred in that the Decision was contrary to the weight of the evidence. As accepted by Mr McCourt in response to questioning by us, the submission was that in the light of the medical evidence, there was no evidence to support the finding that the Applicant could not return to work within the Revenue and Benefits Division.  
18	It was further contended that there had been no evidence that the doctor had in mind a distinction between the Recovery Section, consisting of 12 people, and the Revenue and Benefits Division, consisting of about 95 people.  As we were told, the Respondent employs about 580 people, but the relevant division is located in a separate, older building where staff are, as it was put by Mr Standen, intermingled.  

19	We have, with Mr McCourt’s assistance, looked carefully at the way in which the medical evidence about the Applicant’s job was developed.  True it is that the doctor would be referring to the work presently being done by the Applicant, because, for example, as Dr Cochrane put it on 19 August, he talked about his previous job, and would obviously be focusing upon the job the Applicant was doing.  

20	It is the Respondent’s case, essentially, that the Tribunal made a perverse finding when it concluded as follows:
“In restricting the choice of alternative positions to the Revenue and Benefits Division, the Respondents had failed to follow the fair procedure set out in leading cases such as Daubney to ascertain with certainty the exact position on Mr Websper's health and properly to investigate other alternatives.”

We do not find that the Tribunal made that conclusion on the basis of no evidence.  Essentially, Daubney points the Tribunal, or more accurately an employer, in the direction of a full investigation before it decides to take action about the ill-health of an employee.  

21	In this case, there was a dispute about where the Applicant could be redeployed because, as we have noted, from May 1999, the Applicant was not drawing a distinction between the Recovery Section and the Revenue and Benefits Division; he was complaining that if he were to go back anywhere in that Division, his health would suffer. We are satisfied that that was the issue which the Chairman was recording when he cited from the way in which the Applicant put his case.  In these circumstances, the finding by the Tribunal about the Respondent’s view of the confrontational nature of the Applicant, makes considerable sense.  The Respondent’s view was misconceived.

22	It seems to us that since it is common ground that work in the Recovery Section caused ill-health, and since the Applicant was complaining that work anywhere in the Division would continue the same problem, the insistence by the Respondent on looking for alternative work only within the Division, did not meet his point.  In the terms of this case, it did not represent discharge of the contractual term that he would be provided with a safe place to work. 

23	That being so, we reject the contention that the Tribunal acted upon no evidence or reached a perverse decision, or reached a decision as to the implication of the term which was not a part of the contract.  The appeal is dismissed.