APPEARANCES
| For the Appellants |
Mr R Powell
(of Counsel)
Instructed by:
Messrs DLA Piper Rudnick Gray Cary UK LLP
Solicitors
Victoria Square House
Victoria Square
Birmingham
B2 4DL |
| For the Respondent |
Mr G Hodkinson
(Representative)
Citizens Advice Bureau Specialist Support Unit
The Development Centre
Coxwell Avenue
Wolverhampton Science Park
Wolverhampton
WV10 9RT |
SUMMARY
Unfair Dismissal
Disability discrimination
The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found that the Claimant, who suffered an obsessive compulsive disorder, was subjected to taunts that she would not have had inflicted on her if she had not had the disorder. On appeal, the EAT held that the Tribunal had erred in law. They failed to apply a "range of reasonable responses" test to the employers' operation of the grievance procedure. They failed to apply the correct statutory test for disability discrimination.
THE HONOURABLE LADY SMITH
Preliminaries
- This case concerns a claim of unfair dismissal and disability discrimination. Before the Employment Tribunal sitting at Manchester, Chairman Mr S D Robertson, in a judgment dated 18 October 2005, the Claimant was found to have established that she had suffered disability discrimination and had been unfairly constructively dismissed. She had also claimed that the Respondents had failed to make reasonable adjustments in respect of her disability but that claim was found not to be well founded.
Introduction
- This is an appeal by the Respondents against both findings in favour of the Claimant. They were represented before us by Mr Powell, barrister, having been represented by Miss Norman, solicitor, before the tribunal. The Claimant was represented before us by Mr Hodkinson of Citizens Advice Specialist Support and had been represented by Mr Black of the Macclesfield Citizens Advice Bureau, before the tribunal. Mr Powell invited us to uphold the appeal and dismiss the claim. Mr Hodkinson resisted the appeal but did not submit that there should be a remit to the tribunal if we were minded to uphold it. We propose to refer to parties as Claimant and Respondents.
Background Facts
- The Claimant worked for the Respondents as a customer manager between March 1998 and 7 June 2004 when she resigned. She suffers from an obsessive compulsive disorder ("OCD"). She did not disclose that fact when she applied for the job. At work, thereafter, however, she made "no secret of the fact that she had OCD" (paragraph 10 of the tribunal's findings).
- The Claimant worked in the Respondents' Longsight branch along with a group of some four other female colleagues, one of whom was the branch manager. Initially her relationship with all of her colleagues was a good one both at and outwith the workplace. She went to the bingo with two of them on a regular basis. Matters took a different turn, however, at some point in the middle of 2002. There was a day on which, in response to the Claimant having given some very precise and detailed instructions about a piece of work to two of her colleagues, they spent the day calling her "Frau Fairbrother" and making Nazi salutes to her. Then, in the latter part of 2002, the same two colleagues began to distance themselves from the Claimant and another colleague. The name of that other colleague was Mrs Roberts. Their conduct, in the case of the Claimant, included minor taunts about her need for tidiness and order in her work, using her chair or cup and leaving her office or work area untidy, calling her a "tart" or a "slapper" and refusing to talk to her on one day; the tribunal refer to it as being "low level behaviour". In the case of Mrs Roberts, she was subjected to taunting which focussed on the fact that she worked at a slow pace. In similar vein, one of them indicated openly to a trainee who was at the branch in July 2003, through comments made to the Claimant that they wanted to get rid of him; when the Claimant was assisting him, one of the two women shouted: "What do you think you are doing helping Craig; how are we supposed to get rid of him if you keep helping him?"
- Mrs Roberts went off sick in January 2003 and, accordingly, there was no further conduct towards her after that date.
In short, a picture is painted by the tribunal of a clique forming between the two women which excluded the Claimant, Mrs Roberts and the trainee and in the context of which hurtful comments were made and conduct was engaged in respect of all three of them. They appear to have accepted the view advanced by the Claimant that there had been progressive segmentation and a definite divide within the branch that had begun in about the middle of 2002 and continued and developed thereafter.
- After the incident with the trainee, the Claimant cancelled the standing arrangements to go to the bingo with the two women. They then carried on communicating with each other directly at work but ignored the Claimant. They communicated with her only by e mail even although they all continued to work in the same branch. Matters came to a head. The Claimant had offered to stay on and work late when the branch was under pressure but her offer had been curtly refused by one of the women. Then, on 25 July 2003, the Claimant closed the safe door before one of them had finished there and she became angry with the Claimant. Those incidents occurred when they were under particular pressure at the branch and had been throughout that week.
- The Claimant walked out of the branch on tears on 25 July 2003, which was a Friday. She telephoned the Area Manager, Mr McNicholas, who visited the branch on Monday 28 July. He set about investigating matters and interviewed the Claimant and the two women, who accepted that they had not behaved well during the previous week, were both upset and apologised to him. The inappropriateness of communicating with the Claimant only by e-mail was also acknowledged. He reported their reaction to the Claimant over the telephone, indicated that he would not return to the branch but suggested that the three women should sit down with a cup of tea and sort out the issues between them. He also reported to her that he had asked one of the women, off the record, whether the Claimant was a "tosser" and she had simply smiled in response. Further, he pointed out to the Claimant that she could have been disciplined for walking out on 25 July. She did not return to work but was signed off sick from 29 July 2003. She was encouraged to return to work thereafter but she did not agree to do so. She wanted the two women to be separated but Mr McNicholas was not prepared to consider that. As she was making allegations about the conduct and behaviour of fellow employees, it was she who would have to be relocated. The Claimant sent a grievance letter to him dated 13 August 2003. It was in the following terms:
"Dear Mr McNicholas
In view of our meeting on 28 July 2003 and subsequent telephone conversations I have taken the advice of AGNU and feel that the only appropriate form of action is to have a formal investigation into the grievance that I have raised with you regarding the way colleagues in my workplace have bullied, ostracised and victimised me. I feel that the way my grievance has been handled was inappropriate due to the sensitive nature of this matter and your chosen course of action to relocate me to another branch is completely insensitive and unjustified. I feel that once this grievance was raised with you and your initial course of action to 'have a cup of tea together' with the colleagues involved completely undermined the severity of the case and showed that you had a lack of understanding with such sensitive matters.
I have again attached a copy of my original grievance and await your written reply."
The reference to the "original grievance" was to a two page statement that the Claimant had handed to Mr McNicholas on 28 July 2003 which described the events of 25 July 2003 but "set the events in a longer term context" (paragraph 29). It did not mention the Claimant's OCD nor did it attribute the conduct she was complaining of to her OCD. Thereafter, the Respondents initiated an investigation into the Claimant's grievance.
- The Claimant prepared a further document, a 15-page document in which she gave her account of events, dated 6 October 2003. It concentrated on the events of July 2003. A meeting took place at which the Claimant was represented by Ms O'Neill who was from her union and it was agreed that an investigation of the matters there raised would be carried out. The Respondents' Mrs Ferguson, from their Human Resources department, sent the Claimant a list of what she understood to be her main allegations and asked her to confirm their accuracy indicating that she would only be able to add to them later on if she showed good cause. Almost a month later, just as an investigation report which dealt only with the events of the week of 21 July 2003 was about to be completed, the Claimant sent in a two-page statement of further allegations about conduct which predated July 2003. Mrs Ferguson felt that they came too late, discussed them with Ms O'Neill and Ms O'Neill agreed with her that they should be ignored.
- A grievance hearing took place and was determined solely by reference to the events of the week of 21 July 2003 regarding the Claimant's complaint that she had suffered bullying at work and that Mr McNicholas had mishandled his investigation. Neither allegation was upheld. Mediation was suggested but the Claimant did not agree to it.
- The Claimant appealed the decision to dismiss her grievance. She was not able, for health reasons, to attend the appeal hearing but a statement agreed by her was read out by Ms O'Neill. Reference was made to occasions other than in the week of 21 July 2003 when the Claimant considered she had been bullied. The appeal panel instructed Mrs Ferguson to carry out an investigation, including investigation into the additional matters that the Claimant had sought, late in the day, to put before her. Investigation was carried out in which she checked the year end appraisals for 2002 and 2003 (which made no mention of bullying allegations), checked with the employment agency which had placed Mr Timmis with them (he had not raised any complaints of bullying) and spoke to the branch manager (against whom the Claimant had never made any allegations) who expressed the view that the Claimant's allegations were one-sided and taken out of context. She did not speak to the two women about whom the allegations were made. The appeal panel found that there was insufficient evidence that bullying had taken place and did not find that Mr McNicholas had acted inappropriately. Their decision was intimated on 9 February 2004.
- The Claimant wrote a series of letters in April 2004 expressing her dissatisfaction with the outcome of her grievance. On 7 June 2004, she wrote resigning in respect of the Respondents' failure to bring her grievance to a reasonable conclusion. In short, she resigned because her grievance was not upheld.
The Tribunal's Judgment and Reasons
- As we have indicated, the tribunal found in favour of the Claimant. As regards her claim of unfair dismissal, they found that there were "a number of serious flaws in what was a very lengthy and detailed grievance procedure". The matters which the tribunal considered to be flaws can be summarised as follows:
- Mr McNicholas should have provided a facilitator for the proposed discussion between the Claimant and the two women;
- It was not appropriate for him to have reported the "tosser" exchange to the Claimant or to advise her he could have warned her because she left the branch;
- At the first grievance hearing, the Claimant's complaints of conduct predating the events of the week of 21 July should have been considered;
- The appeal panel failed, in the tribunal's view, to carry out a thorough and reasonable investigation. They should have interviewed the Claimant and the two women about the additional allegations. They wrongly confined their investigations to a narrow scope.
- At paragraph 85, they conclude:
"Of course the tribunal cannot say what might have happened had the respondent's management carried out a reasonable investigation. The respondent's management were not obliged to uphold the claimant's grievance. However, the grievance gave rise to a well-founded belief on the part of the claimant that her grievance had not been properly investigated but rather had been trivialised and unreasonably confined in its scope. The tribunal has concluded that the respondent's management in failing to deal with the claimant's grievance properly in the ways identified by the tribunal acted in a way which was likely to destroy or seriously damage the relationship of mutual trust and confidence between the respondent and the claimant and they did so without reasonable or proper cause."
- Regarding the Claimant's disability discrimination claim, the tribunal deal with it at paragraphs 73 and 74 in the following manner:
"73. The Tribunal has no hesitation in concluding that the treatment which it has found the claimant received from her work colleagues at the Longsight branch amounted to a detriment within section 4(2)(d) and less favourable treatment within section 5(1). The 'Frau Fairbrother' incident, the disruption of the claimant's office in January 2003, the general low level taunts and the way in which Mrs Taylor and Miss Anderton behaved towards the claimant in the week of 21 July 2003 were clearly unwelcome to the claimant and unpleasant for her and there can be no doubt that they were detrimental. The claimant has not sought to identify an actual comparator for the purpose of establishing less favourable treatment but the Tribunal is able to construct a hypothetical comparator and to conclude that the claimant's work colleagues would not have been subjected to the same treatment an individual in the same circumstances who did not have OCD. Although the Tribunal has found that Mrs Roberts, who did not have OCD, was also subjected to a level of taunting from her work colleagues, the Tribunal is satisfied that this was specifically because of Mrs Roberts's pace of work and similarly the particular treatment afforded to the claimant specifically and directly arose out of her obsessive tidiness and need for order in the way she performed her duties and behaved at work and this was a matter which arose directly out of her OCD. It was not in the Tribunal's view treatment which would have been afforded to an individual who did not show those particular characteristics.
74. The Tribunal is satisfied that the claimant has discharged the burden of proof on her within section 17A(1C). The nature of the specific treatment handed out to the claimant by her work colleagues is such that, in the absence of any explanation from the respondent, the Tribunal could easily conclude that it was for a reason related to the claimant's disability. Although the Tribunal has found as a fact that the claimant's work colleagues at the Longsight branch in fact did know of her OCD, it is immaterial for this purpose whether they knew as the treatment clearly arises from and relates to the disability. The 'Frau Fairbrother' incident, the incident involving her office in January 2003 and the general level of taunts and conduct directed at the claimant's obsessive tidiness, such as upsetting her work area, using her coffee cup or using her chair, are of the specific nature that the Tribunal could without difficulty find that they were related to the disability. Although the specific events in the week of 21 July 2003 are not obviously related to the claimant's characteristics and behaviour arising out of her OCD, nonetheless the Tribunal considers that it could conclude, in the absence of an adequate explanation from the respondent, that that behaviour also arose out of Mrs Taylor's and Miss Anderton's particular disposition towards the claimant which arose directly out of their reaction to how she was at work as a result of her OCD."
Relevant Law
- The starting point which is often not spelt out but which, for reasons that will become apparent, merit specific reference in this case, is to look at the appropriate provisions of the Employment Rights Act 1996. Section 94 provides that an employee has the right not be unfairly dismissed. Section 95 provides:
"(1) For the purposes of this Part an employee is dismissed by his employer if …—
…
…
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."
- Thus, where an employee resigns, only if he can be treated as having been dismissed under section 95(1)(c) does consideration then pass to the well known provisions of section 98 regarding the determination of the question of whether or not the dismissal is fair or unfair.
- Further, the question of whether or not an employee is entitled to terminate his contract without notice falls to be determined according to the law of contract, in particular, according to what the law says regarding what terms are implied in a contract of employment.
- It is well established that employers are under an implied obligation that they will not, without reasonable and proper cause, conduct their business in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee: Malik v Bank of Credit and Commerce International SA (in liquidation) [1997] ICR 609; Western Excavating v Sharp [1978] IRLR 27. In the event of breach of that term, an employee who resigns in response will be able to claim that he has been constructively dismissed.
- Regarding disability discrimination, the statutory provisions in force at the relevant time provided:
"4 Discrimination against applicants and employees
(1) …
(2) It is unlawful for an employer to discriminate against a disabled person whom he employs –
(a) in the terms of employment which he affords him;
(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;
(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or
(d) by dismissing him, or subjecting him to any other detriment.
5 Meaning of 'discrimination'
(1) For the purposes of this Part, an employer discriminates against a disabled person if –
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply;
(b) he cannot show that the treatment in question is justified.
(2) For the purposes of this Part, an employer also discriminates against a disabled person if -
(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified."
Submissions for the Respondents on Appeal
- Mr Powell submitted that the tribunal had erred in law. Ultimately, the only issue in the tribunal's minds had been the quality of the investigation into the Claimant's grievance. However, deciding the scope of such an investigation was a matter for the exercise by the Respondents of a discretion. That meant looking at whether the Respondents had acted reasonably. It meant looking at whether they had acted rationally. It meant asking whether they had carried out a reasonable and proper investigation, not whether it was flawed in any respect. Further, it meant taking account of the extent to which any failures at the first stage had been cured at the appeal stage (Whitbread & Co Plc v Mills [1988] IRLR 501). If the Respondents had acted reasonably, then they could not be in breach of the "trust and confidence" term.
- Further, and this was the principal point of Mr Powell's submission, the duty to act reasonably in a grievance investigation was no higher than in the case of a disciplinary investigation. Reasonableness principles were, accordingly, relevant in the same way in respect of both. Had the tribunal considered matters properly, in the light of that principle, they could only have concluded, on the facts found, that the conduct of the Respondents was not unreasonable and that they could not, accordingly, be found to have been in breach of the implied term.
- In support of his submissions, Mr Powell referred to Malik for its statement of the content of the implied duty. He referred to the approach of this tribunal in Murco Petroleum Ltd v Forge [1987] ICR 282, where an employer was found to have acted unreasonably but not in significant breach going to the root of the contract where what they had done was not a "capricious exercise" and was not an "arbitrary decision". Although the implied term founded on by the Claimant in that case was not the implied term of trust and confidence, he argued that the language used and the highlighting of the need for an employers' actings to be seen as capricious or arbitrary before they could be characterised as unreasonable was instructive. That said, other language was used in Clark v Nomura International plc [2000] IRLR 766, where it was said that for an employer exercising a discretion to be found to be in breach of contract, it must be that no reasonable employer would have exercised the discretion in that way and that was expressed as being a test of irrationality or perversity. He also referred to the case of Noorani v Merseyside TEC Ltd 1999 [IRLR] 184 and the reference in it to the correctness of the exercise by a tribunal of its discretion in the issue of witness summonses only being challengeable on what could "loosely be called Wednesbury grounds" (paragraph 32). Finally, he indicated that he was aware of the caveat sounded in the case of Transco Plc v O'Brien [2002] ICR 721 regarding the dangers of using terminology which may appear to extend or detract from the scope of the duty of trust and confidence as set out in Malik but disavowed any intention of doing so and submitted that that would not be the effect of upholding his submission.
- Mr Powell also drew our attention to the decision of this tribunal in the case of Hamilton v Tandberg Television Ltd UKEAT/65/02 12 December 2002 where Judge McMullen had stated, in a case in which constructive dismissal was claimed to have resulted from failures in the Respondents' handling of a grievance, that the standard against which investigation fell to be judged in that case was the band of reasonable responses. He then went to the well known dicta in Sainsbury's Supermarkets v Hitt [2002] IRLR 23 regarding the application of the objective standard of the reasonable employer or range of reasonable responses test to the question of whether an employer has carried out a reasonable investigation and to the case of Grattan Plc v Hussain UKEAT/0802/02 where Judge Burke QC said (at paragraph 26) that:
"The issue was not whether further investigation might reasonably have been carried out but whether the investigation which had been carried out could be regarded by a reasonable employer as adequate."
- Regarding the Claimant's disability discrimination claim, Mr Powell submitted that the tribunal had erred in that they had confined their considerations to the question of whether the Claimant received treatment that was different whereas they should have considered whether she received less favourable treatment. Mrs Roberts had the requisite characteristics to be an appropriate comparator and she had also been subjected to continuing low level criticism and being ostracised. On the tribunal's findings, there was strong evidence that a person not in the two women's own clique would have received the same treatment. Mr Timmis had done so. The relevant detriment was low level mocking and ostracisation, generally offensive and unpleasant treatment to persons not in their group. It was not a question of less favourable treatment for a reason relating to the Claimant's disability. He referred, in support of his submissions, to the case of Smith v Safeway Plc [1996] IRLR 456.
Submissions for the Claimant on Appeal
- Mr Hodkinson submitted that the appeal should be refused as the Respondents were seeking to blur the distinction that had been made clear in the Western Excavating case. What had to be asked was: (a) was there a breach? and (b) was it so serious that the employee could walk away? He referred, in support of that submission, to Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347. Under reference to the case of Malik, he submitted that it was in the second part of the test, namely the question of whether or not the employee could treat the breach as so serious as to bring the contract to an end, that questions of reasonableness arose. He also referred, for the same submission, to Post Office v Roberts [1980] IRLR 347 and the passage at paragraph 49 where the Employment Appeal Tribunal commented:
"… in each case, in our view, you have to look at the conduct of the party whose behaviour is challenged and determine whether it is such that its effect, judged reasonably and sensibly, is to disable the other party from properly carrying out his or her obligations."
The implied term was not, he said, narrowed by that case, by Nomura or by Merco. The task involved, essentially, the same process as deciding whether a dismissal was fair or unfair. It was, however, wrong to extend the principles of statutory fairness of a dismissal to the principles applicable to deciding whether or not there was a breach of contract yet that was what the Respondents argued for. The case of Hamilton was, he submitted, of no assistance either. The Employment Appeal Tribunal there limited its findings to the facts of that case. He was not saying that it was never appropriate to look at the question of whether or not an employers' conduct fell within the band of reasonable responses. However, the tribunal had a wide freedom and if the Respondents' argument was accepted, that would limit their presently fairly unfettered discretion in assessing when the right to resign arose.
- Regarding the tribunal's approach in the present case, he submitted that it was not in error. In a case of constructive dismissal following a grievance procedure, it might be too late once matters were at the end of the first stage, for a defect to be cured on appeal. That is, it seemed to be his argument that whilst in the case of dismissal following on a disciplinary process, defects in a first stage could be cured by the approach adopted on appeal, it was different in the case of constructive dismissal following a grievance procedure. In the case of the latter, the employee could found on the employers' conduct at the first stage, irrespective of any subsequent rectification of it.
- In respect of the finding of disability discrimination, he submitted that the tribunal had not erred. Mrs Roberts was not an appropriate comparator because she was targeted due to her being slow at her work.
Discussion and Conclusions
(1) Constructive Dismissal
- This appeal was presented to us as raising an important point of principle in respect of which guidance was being sought. The Respondents' concern was to establish that employers should be in no worse a position regarding the standards of reasonableness which they were expected to achieve in a case of constructive dismissal following a grievance procedure than in a case where an employee claims that he has been unfairly dismissed after having been disciplined for misconduct.
- We propose to look firstly at the question of when the question of reasonableness arises in each case and thereafter at questions of the content of the duty.
- It is evident that questions of reasonableness arise in a constructive dismissal claim at the outset, when deciding whether or not the employee has been dismissed at all, since the section 94 right does not fall to be considered unless dismissal is established under section 95. That means that the implied term requires to be examined. It is set out in Malik. We find the passage at the end of Lord Steyn's speech, under the heading "THE EFFECT OF MY CONCLUSIONS", to be of considerable assistance:
"Earlier, I drew attention to the fact that the implied mutual obligation of trust and confidence applies only where there is 'no reasonable and proper cause' for the employer's conduct and then only if the conduct is calculated to destroy or seriously damage the relationship of trust and confidence. That circumscribes the potential reach and scope of the obligation."
What is stressed there that has, perhaps, sometimes been overlooked, is that conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it will not do so if the employer had reasonable and proper cause for the conduct in question. Accordingly, the questions that require to be asked in a constructive dismissal case appear to us to be:
1. what was the conduct of the employer that is complained of?
2. did the employer have reasonable and proper cause for that conduct?
If he did have such cause, then that is an end of it. The employee cannot claim that he has been constructively dismissed. If the employer did not have such cause, then a third question arises:
3. was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?
- In a straightforward unfair dismissal case, questions of reasonableness will not normally arise at the stage of determining whether or not the employee was dismissed. That is a question of fact, to be determined objectively on the evidence of what actually happened between the employer and employee. When, however, it comes to assessing whether or not, in dismissing an employee, the employer acted fairly, questions of reasonableness will then arise: section 98(4) of the Employment Rights Act provides that the resolution of that issue will depend on whether or not the employer acted reasonably or unreasonably in treating the reason he dismissed the employee as a sufficient reason. His conduct towards the employee will, at that stage, be subjected to a reasonableness test.
- However, we note that, although the point at which reasonableness considerations arise differs as between the two types of case, the point which is being addressed seems to be the same. It is that of whether or not, when conducting himself towards his employee in a manner which has resulted in the detriment of his job coming to an end, the employer had reasonable and proper cause for his conduct.
- In either event, the employer evidently has a duty to act reasonably but what does that mean? We have no difficulty in holding that that requires recognition of the fact that employers are afforded a measure of discretion in their conduct of their relationship with their employees. In particular, we are satisfied that they have a measure of discretion when deciding how to conduct a disciplinary procedure and in deciding how to conduct a grievance procedure. That is evident from the reference to "reasonable and proper cause" in the formulation of the implied term and in the statutory requirement that they act reasonably in their response to whatever section 98(1) or (2) reason applies. It means that they must not act irrationally or perversely in the course of such procedures. They must not take account of irrelevant material. They must not fail to take account of relevant material. They must not take decisions that no reasonable employer would take. The analysis in Clark v Nomura International plc is helpful in that regard.
- In particular, we agree that in the case of constructive dismissal following the operation of a grievance procedure, as was commented in the case of Hamilton v Tandberg Television Ltd, the band of reasonable responses approach applies. In that case, the Claimant claimed constructive dismissal following his employers' rejection of his grievance. We gratefully adopt the following passage in Judge McMullen's judgment at paragraph 22-24:
"It is suggested that the Employment Tribunal erred in law in failing to condemn the investigation. The standard against which investigation should be judged appears to us, in this case at least, to be the band of reasonable responses. As we pointed out to the advocates in this case, the Court of Appeal has recently reaffirmed that the band of reasonable responses approach applies to the conduct of investigations as much as to other procedural and substantive aspects of the decision to dismiss a person from his or her employment for conduct. See Sainsbury's Supermarkets Ltd v Hitt [2002] EWCA Civ 1588 per Mummery LJ. That, it seems to us, represents a slight lowering of the standards of fairness in an investigation of a disciplinary matter.
23. Miss Robertson submitted to us today that we should read across the approach in conduct dismissal into the case of an employer handling a grievance. We think that is sensible, at least as it is applied in the circumstances of this case, which does carry with it some criticisms of the conduct of the Applicant, albeit arising in the context of the grievance hearing.
24. So, judged against the standard of a reasonable employer, can it be said that no reasonable Employment Tribunal could have found that the failure to investigate every single person at the 4 April meeting constituted a breach of the standards required by a reasonable employer …?"
- We are aware that leave to appeal was sought in Hamilton and refused, the Court of Appeal, in a judgment issued on 20 March 2003 ([2003] EWCA Civ 422) confirming not only that the specific grounds of appeal did not have any real prospect of success but that there was no other compelling reason why the appeal should go ahead.
- We would go further than this tribunal in Hamilton, however, to the extent that we see no reason for the statement of principle expressed not being of general application. Accordingly, in a constructive dismissal case involving resignation in the context of a grievance procedure, when asking the second question we have posed above it seems to us that it is not only appropriate but necessary to ask whether the employer's conduct of the grievance procedure was within the band or range of reasonable responses to the grievance presented by the employee. We would add that we are not persuaded that it is appropriate to separate out each part of the grievance procedure to see whether it was reasonably conducted or not. Just as happens when the conduct of a disciplinary procedure falls to be considered (see: Whitbread v Mills), the conduct of a grievance procedure requires to be looked at as a whole. Only if it has been conducted in a manner in which no reasonable employer would have conducted it can it be said that he did not have reasonable and proper cause for his conduct.
- Turning to the present case, we are satisfied that the tribunal have erred. Firstly, we note that the conduct complained of by the Claimant was, essentially, their failure to uphold her grievance. She was dissatisfied with its outcome. Secondly, that meant that the tribunal required to ask whether the Respondents had reasonable and proper cause for the final decision that they reached in respect of her grievance. Thirdly, they required to recognise that that meant recognising that the Respondents were entitled to be afforded a measure of discretion as to how they went about responding to the grievance. Fourthly, they required to consider the conduct of the grievance procedure as a whole. Only if, after that, it could be concluded that the Respondents' conduct was outwith the range of reasonable responses was it open to them to find that they had no reasonable and proper cause and then go on and consider whether the quality of the conduct fell within the second part of the implied term.
- The tribunal did not, however, do that. They found fault with the first stage of the grievance procedure. The important failing, on their findings, was that the Claimant's grievances regarding alleged conduct prior to the week of 21 July 2003 was not looked into. However, that was cured on appeal. Specific instructions were given by the appeal panel to investigate the additional matters raised. The tribunal found:
"Mrs Ferguson duly carried out the additional investigation required of her by the appeal panel." (paragraph 63)
They were critical of the fact that she did not interview the Claimant but she evidently had documents regarding the additional matters that had been prepared and agreed to by the Claimant. They were critical of the fact that Mrs Ferguson did not interview the two women against whom the allegations were addressed but there is no rule that in such an investigation, the investigator must interview the "accused". A reasonable view may well be able to be reached regarding matters in other ways. In this case, Mrs Ferguson perused the Claimant's appraisals, checked out whether Mr Timmis had made any complaints and spoke to the branch manager who appears as independent in the matter, not, it seems, having been in either "camp" in the workplace. We cannot, in these circumstances, accept that the tribunal were justified in their conclusion, at paragraph 84.7, that the Respondents ignored the background to the Claimant's allegations and sought to confine them to a narrow space of time. On their findings, the appeal process did the opposite. That being so, had they not erred in that respect and had they considered the conduct of the grievance procedure as a whole, they were bound, in our view, to conclude that the Respondents had reasonable and proper cause for the outcome on which they determined.
(2) Disability Discrimination
- We are also persuaded that the tribunal erred in their disability discrimination finding. They required to be satisfied that the Respondents had discriminated against the Claimant by subjecting her to a detriment. That meant that the Claimant could not succeed unless it was established that they had discriminated against her for a reason relating to her OCD by treating her less favourably than they (or their employees) treated or would have treated others to whom the reason did not apply.
- Certainly, some, though not all, of the low level unpleasant treatment meted out to the Claimant related to her OCD. That was a reason for some of the particular acts complained of. Mrs Roberts was, however, a person to whom the OCD reason did not apply. It does not matter, in our view, that another reason applied to her, namely that she was slow at her work. She was clearly an appropriate comparator. The Claimant was not treated any less favourably than Mrs Roberts. She was taunted and subjected to low level unpleasantness too. It was also possible to work out, on the evidence, why that happened. It seems plain that the reason why both women and, indeed, Mr Timmis, were targeted was that they were on the outside of the two women clique. The statutory requirements were simply not met, in our view.
Disposal
- As will be evident from the above discussion, we are satisfied that the tribunal erred. We do not consider that a remit is required. All the relevant findings of fact have been made and we are able to reach our own view which is that the Claimant was not constructively dismissed and that she did not suffer disability discrimination. The appeal falls, accordingly, to be upheld and the claim will be dismissed.
