Appeal No. UKEAT/0285/05/DZM & UKEAT/0286/05/DZM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 August 2005

Before
HIS HONOUR JUDGE SEROTA
MR A HARRIS
MRS J M MATTHIAS

MR K GREENHOF	APPELLANT

BARNSLEY METROPOLITAN BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR IAN McGLASHAN
(Representative)
of: Peninsula Business Services Ltd
Riverside
New Bailey Street
Manchester M3 5PB	
For the Respondent	No appearance or representation by or on behalf of the Respondent	

SUMMARY

Practice & Procedure: Review 

Employment Tribunal misdirected itself by making findings of discrimination on grounds of disability which should have led them to find a breach of the implied term of trust and confidence. Its finding that there was no unfair dismissal was reversed

HIS HONOUR JUDGE SEROTA

1.	This is an appeal by the Claimant, Mr Kevin Greenhof, against a Decision of the Employment Tribunal at Sheffield, chaired by Mr R L Williams.  The Decision of the Employment Tribunal was entered onto the Register on 16 March 2005.  The Employment Tribunal held that Mr Greenhof had not been unfairly dismissed but it upheld his complaint of discrimination on the grounds of disability.  The Claimant made an application for a review of the Decision which was rejected out of hand by the Chairman and there is an additional appeal from that Decision.  HHJ Birtles referred the matters to a full hearing.  The Respondent is not here and has indicated that it does not intend to be present.  

2.	Now, let me say something about the factual background which we gratefully take from the Decision of the Employment Tribunal.  Mr Greenhof is aged 47.  He has the misfortune to be disabled within the meaning of the Disability Discrimination Act in that he suffers from clinical depression.  There was no dispute between the parties that he was disabled within the meaning of the Act.  He joined the Respondent as long ago as 9 September 1974 as a 16 year old apprentice and he has worked his way up through the ranks, so as to speak, having been promoted to trade supervisor and general foreman and more recently, project manager.  There was no dispute that certainly, until the end of 2001, his work had always been perfectly satisfactory and he had a steady career with the Respondent.  However, towards the end of 2001, he was tasked with securing properties owned by the Respondent that had been occupied by drug dealers and drug users and these properties were full of the detritus of drug-taking and they posed a risk to his health and the health of the team with which he was working.  There were needles, razor blades and blood and unsurprisingly, this caused significant distress and stress to the Claimant and his team, as a result of which the Claimant did, in fact, suffer stress and was off work for some time.  

3.	Shortly after the time he went off sick, he received his ultimate promotion to project manager.  Now, after his promotion to project manager and at a time, I believe, when he was off sick, the Respondent decided or needed to act on a complaint that someone, described as a “whistle blower”, had made.  This led to surveillance of a depot which Mr Greenhof supervised at Worsbrough Common and it was suggested that the Claimant had failed to adequately supervise what went on at that depot or turned a blind eye.  Now, the matters of which complaint was made went back prior to February 2003.  Quite reasonably, the Respondent was concerned that as Mr Greenhof had only recently returned to work at the end of the investigation, it would not be appropriate for there to be disciplinary proceedings and by agreement between Mr Greenhof and his trade union and the Respondent, he accepted an oral warning which was to be on his record for six months.  This was, in fact, the lowest form of sanction available and Mr Greenhof reasonably believed, in the view of the Employment Tribunal, that everything was now “done and dusted” and he could get on with his work.  

4.	However, on 28 April 2003, he was called to a meeting in relation to suspicions of various materials being removed from a site without authority.  This put some pressure on him and this pressure increased when it was made clear that it could not be ruled out that some form of disciplinary proceedings might be taken against him.  In the event they were not, but he was required to give evidence in disciplinary proceedings against two other employees.  The stress of having to do so led to a relapse, so far as his health was concerned, on 15 June and he was then absent from work until October 2003, suffering from depression.  He returned to work at the beginning of October 2003 and began to prepare himself for taking on his role as a project manager.  The Respondent thought that perhaps he might like to consider taking a lesser role doing technical support which would not be as stressful for him.  Mr Greenhof interpreted this as meaning that he was not to be allowed to return to his substantive post as project manager.  On 4 December there was a meeting at which his future was discussed.  Mr Greenhof said that it was made clear to him that he could not return to his substantive post.  He was unhappy at this and made it clear then, and in subsequent correspondence, that he wished to resume his role as a project manager.  On 4 February the Respondent wrote: 
“His substantive role remains project manager and although some adjustments could be made for his condition, his responsibilities would not simply be limited to reactive repairs”. 
His letter of resignation is dated 23 February 2004.  He said in terms:
“I believe you are actively seeking to discriminate against me for being ill despite being employed for almost 10 years in the same position and giving BMBC loyal service for almost 30 years.  I therefore feel that I have no choice or alternative but to resign with immediate effect.  My position is untenable and I feel that I have absolutely no trust in my employer or colleagues after the shoddy way that I have been treated during my period of illness”.

5.	Now, the Employment Tribunal in its Decision at paragraph 10 concluded that it was unwise of the Respondent to have Mr Greenhof face a potential disciplinary charge in April arising out of circumstances which arose shortly after his return to work, but nonetheless, it did not consider that this was a breach of contract because the Respondent was a public body and was obliged to investigate matters concerning misappropriation of its property.  The Employment Tribunal also found that the Claimant could not rely upon the disciplinary proceedings as part of his discrimination claim – it was a discrete act – and it was too late to bring a complaint based upon it, as it was out of time.  

6.	At paragraph 13, the Employment Tribunal found that Mr Greenhof had been pressured into taking a lesser role following his return to work in October.  It found that he should have been given such duties as would not cause stress with the help of other project managers, he would have been able to continue his work and with reasonable adjustments.  We quote from paragraph 13 of the reserved judgment:
“Mr Greenhof was promoted with effect from 1 April 2003.  He understood and accepted that changes in the role of project manager would ensue and he was more than willing to go along with them.  We have little doubt that following his return to work in October 2003, the Respondent, through Messrs Young and Plant, felt the job of project manager might prove too much for Mr Greenhof.  He had been cleared for work by his doctor, the Council’s Occupational Health experts, he had successfully without criticism gone through a phased, return to work exercise and was adamant that he wanted to return to his proper substantive role.  Despite what Mr Young said, we accept Mr Greenhof’s evidence to the effect that he was virtually pressured into accepting a lesser role and we fully accept that he was told that he was not going risked.  If, as the Respondent suggested, it was so concerned why did not Mr Young and Mr Plant get someone to approach occupational health or ask the Claimant to ask his doctor whether he could undertake all the tasks involved in the job of project manager.  The doctor and occupational health experts could have been sent a list of duties and been asked to say whether or not there were any which, in their opinion, Mr Greenhof could not safely undertake”
and the Employment Tribunal went on in paragraph 14 to find that he could and should have been given as many of the duties he could cope with without fear of stress and, if necessary, other project managers, at least for a temporary period, could have been asked to undertake tasks which the Respondent felt might be beyond Mr Greenhof’s own capabilities.  

7.	One might have thought that based upon that, and a subsequent finding that there had, in fact, been discrimination, that the Employment Tribunal might have concluded – indeed might have been driven to the conclusion – that a breach of its duties to provide reasonable adjustments was a repudiatory breach of contract in that it was unquestionably a breach of the implied duty of maintaining trust and confidence.  The Employment Tribunal, on the other hand, found that it did not believe that the Respondent wanted to get rid of Mr Greenhof; on the contrary, it wanted him to stay albeit to take a lesser role and it went on to say this.
“15.		While his contract was not undermined by any conduct of the part of the Respondents sufficient to enable him to leave on account of it, he was most certainly discriminated against on the grounds of disability without justification.  There were clear and simple adjustments that could have been made; adjustments which were not made when the Respondent had a clear duty to implement them.  It is perhaps significant that the fourth paragraph of Mr Young’s letter of 11 March ends with the words ‘with their (the Building Works Construction Managers) full support and backing’.  That could and have should have been offered sooner”. 

The Employment Tribunal therefore dismissed the claim for unfair dismissal while upholding his claim that he had been discriminated against on the grounds of disability.  The Claimant sought a review and drew the attention of the Employment Tribunal, or the Chairman, to the decision of Nottinghamshire County Council v Meikle [2004] IRLR 703.  The Chairman took the view that the case did not assist him and refused a review.  

8.	Now, it seems to us, as a general principle, and we now refer to the decision of Morrow v Safeway Stores Plc [2002] IRLR 9 - a decision of Mrs Recorder Cox as she then was - at paragraph 23 she had this to say:
“In our view…the authorities show that, while there have been slight variations in the formula used to describe this implied term over the years, not only has its existence never been in doubt but its scope has never altered.  We agree with the very recent observation of this Appeal Tribunal in BG plc v Mr P O’Brien [2001] IRLR 496, to which we were referred in argument in the present appeal, that, in every case:
‘The question is whether, objectively speaking, the employer has conducted itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee’. 
If that employer is found to have been guilty of such conduct, that is something which goes to the root of the contract and amounts to a repudiatory breach, entitling the employee to resign and claim constructive dismissal.  Whether there is such conduct and in any case will always be a matter for the employment tribunal to determine, having heard the evidence and considered all the circumstances”.
At paragraph 25, she went on to say:
“We take the view that, in considering the application of the implied term, the tribunal led themselves into error by seeking to separate the actual words spoken, which they thought were not in themselves unreasonable, given the history, from the circumstances in which the reprimand took place which they described as ‘regrettable’.  
In so doing, they appear to have directed themselves that they could therefore find a breach of the implied term of trust and confidence which was nevertheless in all the circumstances not sufficiently serious to amount to a repudiatory breach entitling the appellant to resign.  We regard this as a misdirection and we so find in relation to the first issue in this appeal.  In general terms, the find that there has been conduct which amounts to a breach of the implied term of trust and confidence will mean, inevitably, that there has been a fundamental or repudiatory breach going necessarily to the root of the contract…”.

9.	Now, in the Nottinghamshire County Council v Meikle [2004] IRLR 703 case, the Court of Appeal held that a failure of the local authority to carry out reasonable adjustments in relation to a person who was disabled amounted to a fundamental breach of the obligation of trust and confidence and, as in that case, the employee had resigned in response, at least in part, to those fundamental breaches of contract, she was constructively dismissed.  In that case, the Employment Appeal Tribunal had substituted a finding of unfair dismissal and the Court of Appeal upheld that decision.  

10.	Now, it seems to us in this case that the Employment Tribunal found unequivocally that there had been a serious breach of the obligation on the part of the Respondent over a period of time to make reasonable adjustments as it was obliged to do under the Disability Discrimination Act.  It follows, in our opinion, that that was almost bound to be a breach of the implied term of trust and confidence which Mr Greenhof would be entitled to treat as being a repudiatory breach of contract, as he purported to do.  Now, it may be that there are circumstances in which there can be a breach of the obligation to make reasonable adjustments which might not be regarded as repudiatory, but we do not see how, having made the finding it did in the present case, there was any way in which the Respondent’s conduct could be regarded as anything other than repudiatory.  

11.	Indeed, the Employment Tribunal does not give any explanation as to why it did not regard the breach as repudiatory but, having regard to the findings made by the Employment Tribunal, in our opinion it was bound to find that there had been a breach of the implied duty of trust and confidence and that breach was potentially a repudiatory breach which was, in terms, accepted by Mr Greenhof.  It follows therefore, in our opinion, that the Employment Tribunal fell into error in failing to characterise the breach of contract as repudiatory and it should, on the findings of fact it made, have concluded that the case brought by Mr Greenhof in respect of unfair dismissal was made out.  We do not consider it necessary in those circumstances for this matter to be remitted to the Employment Tribunal nor do we consider it necessary to deal with the other matters raised by Mr McGlashan on this appeal.  The appeal will be allowed and we will substitute for the decision of the Employment Tribunal a decision that Mr Greenhof was unfairly dismissed.  The issue as to compensation will, of course, need to be dealt with at the Employment Tribunal and we assume will be dealt with at the same time as it deals with the issue as to compensation for disability discrimination.