Appeal No. EAT/488/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 April 2002

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MS N AMIN

MRS A GALLICO

MR B COOK	APPELLANT

LONDON BOROUGH OF TOWER HAMLETS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MARK JACKSON
Solicitor
Messrs Lake & Co
Solicitors
6 Albermarle Way
London EC1V 4JB	
For the Respondent	MR RICHARD HERMER
(of Counsel)
Instructed by:
Messrs Bindman & Partners
275 Gray's Inn Road
London WC1X 8QB	

MR JUSTICE LINDSAY (PRESIDENT)

1	We have before us by way of a full hearing the appeal of Mr Barry Cook in the matter Cook -v- The London Borough of Tower Hamlets.  Today Mr Cook has been represented by Mr Mark Jackson and the London Borough by Mr Richard Hermer.  The matter comes to us on appeal from the Tribunal at Stratford and it concerns constructive dismissal and the implied term of trust and confidence.  

2	The Tribunal described the nature of Mr Cook’s case by saying in their paragraph 1 as follows:
“This is an Originating Application brought to us by Mr Barry Cook on 4 July 2000.  He complains of his constructive and unfair dismissal by the Respondents, the London Borough of Tower Hamlets.  He was employed by that Borough at Bethnal Green Technical College as a Senior Technician between 2 September 1996 until 5 April 2000, the date of receipt of a letter by the Respondent from Mr Cook  [it must have been to the Respondent from Mr Cook] to say that he considered he had been constructively dismissed with immediate effect.”

What his letter had said was this: it was addressed to Mr Wadsworth of the Bethnal Green Technical College:
“As you know I have been on sick leave suffering from work related stress since the end of January this year, [and it is the letter of 5 April 2000] caused as a result of the ongoing harassment I had been receiving from Mr Rob Somerville.  
My complaints regarding this matter have been well documented and I do not intend to rehearse them here.  In the circumstances and owing to the failure of the college to deal with my grievance seriously and satisfactorily, I consider that I have been constructively dismissed with immediate effect and therefore will not be returning to work.”
And he then gives details of the solicitors then acting for him.  

3	The hearing at the Employment Tribunal was on 8 and 9 February 2001; the Decision was sent to the parties on 19 February 2001.  The Decision was:
“The unanimous decision of the Tribunal is that the Applicant was not constructively dismissed by the Respondent”
The Tribunal, as I mentioned, was at Stratford, and I should have added it was under the chairmanship of Mr J Cole.  
4	As the case largely concerned the implied term of trust and confidence it is perhaps prudent to have the nature of that term precisely in mind, and to that extent it is useful to go to the fountain-head which is Malik -v- BCCI [1997] IRLR 462 (House of Lords).  There are some passages from that that we ought to have in mind.  In paragraph 8, part of Lord Nicholls’ speech, he says:
“In the Court of Appeal and in your Lordships’ House the parties were agreed that the contracts of employment of these two former employees each contained an implied term to the effect that the bank would not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”
In paragraph 12, under the heading “An implied obligation” he said:
“Two points can be noted here.  First, as a matter of legal analysis, the innocent employee’s entitlement to leave at once must derive from the bank [and it was there, of course, BCCI] being in breach of a term of the contract of employment which the employee is entitled to treat as a repudiation by the bank of its contractual obligations.  That is the source of his right to step away from the contract forthwith.”
In paragraph 13, Lord Nicholls goes on:
“This implied obligation is no more than one particular aspect of the portmanteau, general obligation not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages.”
In paragraph 14 he says:
“The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.  That requires one to look at all the circumstances.”
Lord Steyn also dealt with the nature of the implied term, and in paragraph 54 he says this:
“It is expressed to impose an obligation that the employer shall not:
‘…..without reasonable and proper cause, conduct itself in a manner calculated”
[in fact he says “calculated and likely” but it should “calculated or likely” because it is a quotation from Woods -v-W M Car Services ]
 “calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”
And he then sets out a number of cases referring to that, and in paragraph 56 he says:
“The evolution of the implied term of trust and confidence is a fact.  It has not yet been endorsed by your Lordships’ House.  It has proved a workable principle in practice.  It has not been the subject of adverse criticism in any decided cases and it has been welcomed in academic writings.  I regard the emergence of the implied obligation of mutual trust and confidence as a sound development.”

5	So, drawing those quotations together, one has to look objectively at the conduct complained of and, if it is to entitle the employee to treat it as a repudiation by the employer of the employer’s contractual obligations, then it has to be such that, done without reasonable and proper cause, it was likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.  

6	The relevant facts found by the Tribunal were that there was a tense personal situation that existed between Mr Cook and a fellow employee, Mr Somerville, who was a teacher.  The Tribunal says in its paragraph 7:
“It was necessary for there to be a close working relationship between them so that Mr Cook could service and prepare materials which Mr Somerville used for his classes (and other teachers also) in the small faculty known as Design and Technology.”
Because of the manner in which they behaved one to another, Mr Somerville complained first to management and shortly thereafter Mr Cook lodged a grievance, lodging it on 30 June 1999, and in their paragraph 8, the Tribunal says:
“The issue before us turns exclusively on the investigation of the Applicant’s grievance, the Applicant’s assertion that the grievance was not properly investigated and took too long, all of which he says should be taken cumulatively together as a fundamental breach of contract by the Respondent entitling him to resign as he did.  He says this is a “last straw” resignation case which amounted to a constructive dismissal and that we should take into account his long history of difficulty with Mr Somerville”

7	That grievance having been lodged, Mr Wadsworth, who was the headmaster of the technical college, then put matters in train.  In paragraph 12 the Tribunal says:
“Mr Wadsworth caused Ms Lenihan to undertake responsibility for the investigation of the grievance.  She agreed with Mr Cook the witnesses she would interview.  It has not been challenged, but we, in any event, are entirely satisfied Ms Lenihan conducted that enquiry quickly and diligently by interview of the named witnesses.”
On 12 July, found the Tribunal, Ms Lenihan produced her report and they said:
“She did not find any evidence to corroborate the assertions made by Mr Cook against Mr Somerville.  She reported accordingly.  Mr Cook was very upset.”

Mr Cook was of the view that Miss Hawker should have been interviewed.  There was at this stage some delay, and the Tribunal turn to that in their paragraph 15; they said:
“15  Whereas we accept that there were initial inexcusable delays (indeed Mr Wadsworth himself accepted that) we have taken into account that Mr Wadsworth was acting cautiously, there were school holidays intervening and he was hoping that he would be able to resolve the outstanding difficulties by mediation.  He was anxious not to have the matter, even at that stage, go to the school governors.
16  By his letter of 29 July Mr Wadsworth confirmed that any further enquiries would not be carried forward until “the start of the new term”.  That would be in or about September 1999.”
 A little later, Ms Lenihan, found the Tribunal:
“17 ……after a considerable difficulty, was able to speak to Lisa Hawker by telephone on or about 14 November 1999.  Even Ms Lenihan has honestly accepted there was some further delay because she did not necessarily share the view of Mr Wadsworth that it was appropriate to reopen her investigation.  Miss Hawker confirmed by telephone that there was very little she could say and was surprised by the allegations.  She did nothing to confirm the Applicant’s views.
18.  Accordingly on 15 November Ms Lenihan wrote to Mr Wadsworth to record her enquiry of Lisa Hawker.  Also that day she spoke with Mr Cook to confirm the position with him.”

8	Mr Cook was dissatisfied and he went to solicitors.  On 20 December 1999, Mr Cook requested that the grievance should be moved on to what is sometimes called “Stage 2”, sometimes called “Part B”.  The Tribunal, of that stage, said this:
“20  On 20 December Mr Cook moved to Part B of the grievance procedure in the following terms:
“I do not believe that my entire complaint has been investigated.  I also believe that there is evidence to support my complaint, please see attached pages.”
And then the Tribunal goes on in their paragraph 21:
“The attached pages expand on the assertion but make little complaint concerning delay.”
And the Tribunal then considered:
“22  Mr Wadsworth did not act thereafter immediately.  He was still most anxious to have the matter contained and dealt with by mediation.  On 31 January there was a meeting with Mr Wadsworth and Mr Levett on his behalf.  Mr Wadsworth confirmed initially that he was “refusing my (the Applicant’s) right to Stage 2”.  Mr Wadsworth told us that he accepted he was exercising his professional judgment in continuing to try to contain and resolve the matter which was having a deleterious effect on Mr Somerville and the school in particular.  He recognised Mr Cook was also suffering stress thereby.  At the conclusion of that meeting Mr Cook agreed with Mr Wadsworth to suspend the Stage 2 procedure pending a further meeting to be arranged.
23  However very shortly thereafter Mr Cook became unwell.  He sent in a doctor’s certificate to say he would not be returning to work because of “stress”.  He never did so.”
[“He never did so” is intended to mean in that context that he never did return to work]
“24  Because of a discussion during his absence, and with his union representative he came to learn on 3 April that Mr Wadsworth had not taken the matter further.  He said he was appalled.  He wrote his resignation letter and brought his Application to this Tribunal.”  

9	Well, that is the factual background.   As to the law, the Tribunal referred itself to the Western Excavating ECC Ltd -v- Sharp [1978] ICR 221 in the Court of Appeal.  They referred themselves to Lewis -v- Motor World Garages [1986]  ICR 157, to W E Cocks Toner Limited -v- Crook [1991] ICR 823, and to W A Goold (Pearmak) Limited -v- McConnell [1995] IRLR 516, and it is not said that they misunderstood any of those cases, or misapplied them, and the Tribunal plainly had in mind what one might call the “last straw” doctrine, because in their paragraph 26 they say:
“If there is a breach of such a condition or term of the contract an Applicant is entitled to resign in response to it, if it is a fundamental breach.  In other words a trivial breach will not do.  Nevertheless, the cumulative effect of a number of trivial breaches may alter the position.”

10	In a passage, possibly generous to Mr Cook, the Tribunal said this:
“We are satisfied that there has been a breach by Mr Wadsworth by his delay, after mid July, in addressing the further inquiry of Miss Hawker.  We have already explained the reasons therefore but nevertheless we take the view that Mr Wadsworth was, perhaps, insufficiently sensitive to the pressures upon Mr Cook, and of course Mr Somerville also.  We are persuaded, nevertheless, that the failure by Mr Wadsworth amounted only to an extremely trivial breach.  What he did occurred because of his desire to allow matters to take their natural course and in the hope that there may be a resolution by mediation.  That delay, in our judgment, was not a breach which greatly troubled Mr Cook.  We note that in his formal grievance he did not link directly to lack of speed.  Simply he relied upon what he deemed to be the Respondent’s failure to investigate adequately.  We are entirely satisfied the investigation, through Ms Lenihan, was extensive and sensitive.  It would be a pity, in our view, if Mr Wadsworth spoilt that position by wilful delay thereafter.  We do not think he did so and whilst there was delay we regard it as insufficiently serious to allow the Applicant to rely upon it as the basis of his constructive dismissal.”  

If the alleged breach, objectively regarded, is only trivial in the sense of not being likely to destroy or seriously damage the appropriate degree of trust and confidence, it is, strictly speaking, no breach at all of the implied term which is so framed that its breaches are either truly serious or are not breaches at all.  Moreover the delay was not expressly found to have been without reasonable and proper cause.  Mr Wadsworth was hoping that he would be able to resolve matters by what he called “mediation”, by which it would seem he did not mean any technical form of process but rather a series of informal meetings.  That was not expressly found to be a reasonable and proper cause but, equally, it was not found not to be one either, and perhaps it was generous in Mr Cook’s favour, on the Tribunal’s part, not to rule that Mr Wadsworth did indeed have reasonable and proper cause to delay, quite apart from the incidence of school holidays.  It is notable, too, that Miss Hawker transpired, as it seemed Ms Lenihan had all along believed, to be able to give no evidence of any relevance at all.  

11	So, running matters down to Mr Cook’s request for a move to Stage B of the grievance, or Stage 2 of the grievance, on 20 December 1999, it is difficult, in our view, to see anything so serious as it could be regarded as a breach of the implied term of trust and confidence.  Looking at the situation once Stage B had been requested, the Tribunal dealt with that in their paragraph 29, they said:
“The next assertion, put before us by Mr Cook, relates to the events thereafter.  We do not criticise the Respondent for its delay after 15 November, over the Christmas period and the holiday shutdown and until the end of January when the meeting with Mr Cook took place.  To his credit Mr Jackson does not directly criticise that either…”
[I should say, of course, that reference is to Mr Jackson, who appeared in front of us as well]
“… Yet, says Mr Jackson, there was excusable delay after 31 January meeting and furthermore Mr Wadsworth had refused the Applicant’s contractual entitlement to move swiftly to Stage 2.”
The Tribunal continued in their paragraph 30:
“That latter assertion is displaced by the agreement with Mr Cook reached at the meeting on 31 January, namely that the next stage would be a “roundtable” meeting.  But Mr Cook was then absent and we accept the explanation by Mr Wadsworth namely that it would be inappropriate to try to move the matter forward whilst Mr Cook was certificated sick and away from work.  We believe he [and that is Mr Wadsworth] acted sensitively and was entitled to act as he did.  We note there was no formal communication from Mr Cook during his absence, requesting a different course of action be pursued.”
And finally, of the citations, the Tribunal say:
“………We do not consider that Mr Wadsworth, by his conduct during this period, was guilty of any contractual breach.  Even were we wrong that would be, at the very best (so far as Mr Cook is concerned), the most trivial breach for the reasons to which we have already referred.
31  Thus what it comes to is this.  There was a trivial breach by Mr Wadsworth (by his delay) between July/November 1999 (see above) but only a trivial breach.  We perceive nothing thereafter.”

12	Mr Jackson argues that for the Employment Tribunal to hold that the delay in Stage A was extremely trivial was in conflict with the Tribunal’s acceptance that an aspect of the implied term of trust and confidence was such that it cast upon the employer an obligation to conduct a grievance investigation efficiently and quickly.  But what is important is the gravity of the employer’s shortcomings, objectively regarded.  We remind ourselves of the ingredients required by Malik which we cited at the outset.  The extent of that gravity has to be weighed in all the relevant surrounding circumstances and is essentially a matter of fact for the Tribunal as the industrial jury.  Mr Jackson complains of delay after 31 January 2000, but we see no error of law in the Tribunal’s view that once it was agreed that Stage B would be suspended, pending a further meeting, then it was inappropriate to move to that further meeting whilst Mr Cook was certificated sick with stress, especially given that there was no formal request from Mr Cook to go ahead despite his illness.  Mr Jackson says in his Skeleton Argument that Mr Cook was deprived of his contractual right to Stage B of the grievance, but he was not; it was postponed whilst he was away from work, certificated sick.  

13	We have heard a great deal about perversity; indeed Mr Jackson recognises that the label under which the appeal needs to be pursued is that of perversity, and, not surprisingly therefore, Mr Hermer has taken us to the well known passages in Stewart -v- Cleveland Guest (Engineering) Ltd  where Mr Justice Mummery, as he then was, cited many of the different ways in which the idea of perversity had been described in other cases, and in particular, at 1994 IRLR 440 at 443, the EAT in the Stewart -v- Cleveland Guest case said the EAT:
“…..should only interfere with the decision of the [employment] tribunal where the conclusion of that tribunal on the evidence before it is ‘irrational’, ‘offends reason’, is ‘certainly wrong’ or ‘is not a permissible option’ or is ‘fundamentally wrong’ or is ‘outrageous’ or ‘makes absolutely no sense’ or ‘flies in the face of properly informed logic’ “
If the parties before us are right to see this merely as a matter of perversity, well then, we cannot accept that any of those descriptions are made good here, and, more generally, approaching the matter as a matter where it was incumbent on the Applicant, the Appellant before us, to make good a breach of the implied term of trust and confidence, cast in the way in which Lord Nicholls and Lord Steyn described it in Malik, we find that he failed to make good such a breach before the Employment Tribunal and we have detected no error of law in the Tribunal’s handling of the case.  Accordingly, we dismiss the appeal.