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Neutral Citation No. [2012] NICA 8	Ref:	HAR8477
Judgment: approved by the Court for handing down	Delivered:	30/4/2012
(subject to editorial corrections)*


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________ IN THE MATTER OF AN APPEAL FROM A FAIR EMPLOYMENT TRIBUNAL ________

BETWEEN:

PRAXIS CARE GROUP

Appellant/Respondent;

-and- GERALDINE HOPE

Respondent/Claimant.

_______ Before: Coghlin LJ, Sir John Sheil and Sir Anthony Hart _______

SIR ANTHONY HART (Giving the judgment of the court)

[1] This is an appeal by Praxis Care Group, the appellant/respondent (Praxis) from a majority decision of a fair employment tribunal that Geraldine Hope, the respondent/claimant, was constructively and unfairly dismissed. The decision of the tribunal was a majority decision, and the chairman dissented. Ms Hope brought a further claim of harassment on the grounds of her religious belief, but that was unanimously dismissed and no appeal has been brought from that decision.

[2] Ms Hope resigned her employment with Praxis, and the sole issue before this court was whether the majority of the tribunal properly found that the effective cause of her resignation, and hence her constructive and unfair dismissal, was because Praxis conducted itself in a way that involved a breach of the implied term of mutual trust and confidence between employer and employee. The minority view of the chairman was that the effective cause of her resignation was that she was concerned that she would be dismissed because of disciplinary proceedings she faced, and so would find it difficult to get a new job in the absence of a reference.

[3] The appellant/respondent was represented by Mr Lockhart QC and Mr Mark McEvoy, and the respondent/claimant by Mr Phillips. We are grateful to counsel for the commendably clear, focused and succinct way in which they presented their written and oral submissions.

[4] The tribunal's reasoning in relation to both the law and its majority and minority conclusions respectively are to be found at paragraphs 10(i) to (iii) of the decision.

"10(i) In relation to the claim of constructive dismissal the tribunal reminds itself that in order to establish constructive dismissal, an employee must show that there has been a fundamental breach of the contract of employment by the respondent, that the employee accepted that breach and resigned because of that breach and that the employee did not waive the breach, thus affirming the contract of employment.

It is for the employee to establish these matters.

(ii) As indicated at the outset, in this case we are concerned with a potential breach of the implied term of mutual trust and confidence. Where an employer breaches this term, it has been suggested that the breach will 'inevitably' be fundamental. See: Morrow v Safeway Stores Plc [2002] IRLR 9 at 14, per Ms Recorder Cox QC.

As far as causation is concerned, there may be more than one reason why an employee resigned his position, and in such circumstances, the tribunal must determine what was the effective cause of his or her resignation from post. See: Jones v F Sirl & Sons (Furnishers) Ltd [1997] IRLR 493.

(iii) On the facts of this case, a majority of the tribunal are satisfied that the first-named respondent, Praxis Care, conducted itself in a manner which was likely to destroy or seriously damage the relationship of confidence and trust between it and the claimant; and that the employer did not have reasonable and proper cause for such conduct. They find that the claimant was placed in a situation at work where she was, in effect, taken advantage of, that undue burdens were placed upon her, that she struggled to cope without adequate support or supervision and that she operated on the basis of promises of help and support which were not fulfilled. While the chairman does not disagree that this is an accurate reflection of the position in which the claimant found herself, he finds that the effective cause of resignation was that she was concerned that the disciplinary proceedings which she was facing would result in her dismissal (she was subject to a Final Written Warning at this time) and that in the absence of a reference she would find it difficult to find a new job.

Indeed, she had previously spoken of resigning on more than one occasion when it was clear that she would face a disciplinary process."

[5] One of the grounds of appeal relied upon by Praxis was that the tribunal had not correctly directed itself in relation to the law relating to the fundamental breach of contract on the part of the employer. However, upon the hearing of the appeal Mr Lockhart candidly conceded that it was clear that the tribunal had properly stated the law in paragraphs 10(i) and (ii).

[6] The issue before us centred upon whether or not the majority of the tribunal were justified in their conclusion at 10(iii) above. Mr Lockhart's first point was that it was not clear that the majority had found that "the effective cause of resignation" was because of the findings set out at the beginning of 10(iii). However, although only the chairman in giving the reasons for his minority decision expressly states what "the effective cause" was in respect of his conclusion, we have concluded that on a fair reading of 10(iii) it is apparent that the majority did find what they held to be the effective cause. The law had been properly set out in the previous sub-paragraphs, and it was the responsibility of the chairman to draft the reasons, and ensure that the lay members of the tribunal were (a) properly directed as to the law, and (b) that they enunciated their conclusions in a way which showed that they had regard to his directions of law. When 10(iii) is read in its entirety we are satisfied that the majority did make a finding as to "the effective cause" of Ms Hope's resignation.

[7] This brings us to what we consider to be the main thrust of Mr Lockhart's submissions, namely that the factual matrix of the evidence and findings of fact pointed in the opposite direction to the conclusion arrived at by the majority, and pointed to the correctness of the decision of the chairman. Before turning to consider the factual aspects of the claim we remind ourselves of the appropriate test to be applied by an appellate court when considering the reasoning of an employment tribunal. It has been established since the decision in Crofton v Yeboah [2002] IRLR 634 at [92] that an appellant has to show that the decision of the tribunal was perverse because the decision was one which no reasonable majority, on a proper appreciation of the evidence and the law, would have reached. In Crofton v Yeboah Mummery LJ emphasised that an appeal from an employment tribunal can only succeed on the grounds of perversity

"where an overwhelmingly case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached."

This principle has been applied by this court on numerous occasions, for example in Carlson Wagonlit Travel Limited v Robert Connor [2007] NICA 55 where Girvan LJ stated at paragraph [25]:

"In this case the decision of the tribunal must stand unless the tribunal made an error of law in reaching its conclusions; based its conclusions on material findings of fact which were unsupported by the evidence or contrary to the evidence; or the decision was perverse in the sense that no reasonable tribunal properly directing itself could have reached such a decision."

More recently the decision of this court in Rooney-Telford v New Look [2011] NICA 26 is to the same effect.

[8] Mr Lockhart pointed to what he referred to as the "factual matrix" as indicating that the sole focus of Ms Hope's conduct was on the disciplinary process, and her conduct in offering to resign on two occasions, and asking if she should resign on a third, entirely supported the conclusion reached by the chairman. He also pointed to the fact that on 19 August 2009 after a disciplinary hearing she received a final warning which was to remain on her record for twelve months. Then on 23 October 2009 allegations of bullying and harassment were made against her and, as the tribunal, it seems unanimously, found "she was annoyed by it and offered to resign". This was the first reference to an offer to resign, and he emphasised that at that point there was no reference to excessive hours or any complaint of discrimination, nor indeed was there in any subsequent phone calls relating to this matter. On 16 November 2009 she said that she wanted the disciplinary proceedings over as soon as possible "and again offered to resign", this was her second reference to resignation and at that time she made no reference to any excessive hours or complaint of discrimination.

[9] On 13 January 2010 after she had been absent from work because of stress she was told that the matter was now going to a disciplinary hearing, and "on this occasion also she asked if she should resign", but was told to take her time and think about the matter. This was therefore the third occasion on which she had raised the question of resignation. On 22 February 2010 she sent in her letter of resignation. This was not quoted in the decision, nor was it contained in the Appeal Book, but with Mr Phillips consent Mr Lockhart at our request produced the letter of resignation, and it is simply a short statement by her that she wished to tender her resignation with effect from 5 February 2010 without stating any reasons for doing so.

[10] When one looks at the sequence of events from August 2009 onwards from the employer's perspective it is clear that the employer was focusing on questions of discipline and Ms Hope was responding to those. However, as Mr Phillips correctly argued, it is necessary to look at the entire history of the relationship between Ms Hope and Praxis in order to place these matters in context. Ms Hope had been employed since 26 November 2007 as a House Supervisor at Parklands, a residential home in Lisburn run by Praxis. Without going into all the facts found by the tribunal it is clear that there were considerable difficulties caused by staff shortages, and these staff shortages were found by the tribunal to have placed employees at the home, and in particular Ms Hope as House Manager, "under constant pressure". Because of this, and because her line manager frequently changed, there were long periods when the tribunal found that she "was left without any line manager to whom she could turn for support and guidance". All of this meant that she:

"…was left to shoulder a level of management responsibility with which, through no fault of her own, she was unable to cope. We say that this was through no fault of her own because in relation to other staff, her role was vague and ill-defined and she had been given no training or induction in relation to managing staff. Effectively, she was left in a position where she was out of her depth.

We are satisfied that the senior managers were aware of this situation but took no steps to remedy it."

[11] In addition, she was frequently asked to work additional hours, and at paragraph 6(v) the majority of the tribunal found:

"…that in this latter period at least part of the reason for the claimant working so many hours was because she felt morally obliged to step into the breach and that in this respect management took advantage of her good nature."

[12] In a report of 25 June 2009 Mrs Frances Philpott, an independent manager unconnected to Parkland, investigated the allegations, some of which were found to be proved, and this led to the final warning to which we have already referred. Significantly, an addendum was prepared by Mrs Philpott which is set out in length at paragraph 5(iii) of the tribunal's decision which concluded:

"The investigation has identified a strong need for training, regular, focused supervision and monitoring of Ms Hope's capability for the position and role of house manager."

The tribunal, unanimously it seems, found that:

"However, no action was ever taken on foot of this Addendum to address the problems which it identified …"

[13] As we have already stated, in order for the respondent/appellant to succeed it has to show that the decision of the majority was one which no reasonable tribunal could have made. We have already set out the findings of the majority and the reasons they gave at paragraph 10(iii) for what we are satisfied was their decision that the effective cause of Ms Hope's resignation was that she had been:

"placed in a situation at work where she was, in effect, taken advantage of, that undue burdens were place (sic) upon her, that she struggled to cope without adequate support or supervision and that she operated on the basis of promises of help and support which were not fulfilled."

[14] Whilst some might regard the decision of the majority as a sympathetic one when viewed against the evidence relied upon by the respondent/appellant, nevertheless we are satisfied that when the decision is viewed in the context of all of the facts found by the majority, there was sufficient evidence before the employment tribunal to justify the decision reached by the majority. We are satisfied that the decision was one within the proper range of factual decisions which it was for this tribunal, acting as an industrial jury, to reach, and we do not consider that it could be characterised as a perverse decision in any way, as we would be required to do in order for the appellant to succeed in accordance with Crofton and Yeboah. We therefore dismiss the appeal.