Barnes v London Borough of Lewisham

LORD JUSTICE BEAN: On 18 and 19 March 2013, an Employment Tribunal sitting at London South and comprising Employment Judge Martin and two lay members heard claims by Mr Barnes of detriment following a protected disclosure and constructive unfair dismissal.

The list of issues set out in the tribunal's determination was as follows:

The detriments relied on by the Claimant are the initiation of a standard setting (part of the Respondent's capability procedure) on 2 August 2011, the extension of the standard setting in November 2011 and the extension of the standard setting on 22 March 2012. The Claimant also relies on this final detriment as being the last straw resulting in him tendering his resignation the next day. The Respondent's position is that there was no extension of the standard setting on 22 March 2012.

Whether the Claimant was automatically unfairly dismissed by virtue of making a protected disclosure."

The tribunal's reserved judgment promulgated on 17 April 2013 begins, as such documents usually do, with the short form decision which reads:

The Claimant's claim of detriment following the making of a qualifying protected disclosure is dismissed.

The Claimant's claim of unfair dismissal is dismissed."

Mr Barnes appealed to the Employment Appeal Tribunal. On 29 July 2013 His Honour Judge Clark, after considering the case on the papers, found that the appeal had no reasonable prospect of success and gave a rule 3(7) direction accordingly. Mr Barnes exercised his right to an oral hearing under rule 3(10). This took place on 12 February 2014: His Honour Judge Shanks dismissed the appeal. It is evident from Judge Shanks' judgment that the argument put to him by Mr George, the Appellant's representative who appeared in both the ET and the EAT, focussed largely, if not entirely, on the protected disclosure claim.

Mr Barnes sought permission to appeal to this court. The appellant's notice, again drafted by Mr George, continued to focus on the protected disclosure claim. On 22 May 2014 Sir Stephen Sedley, after considering the case on the papers, refused permission.

Mr Barnes renewed the application for permission to an oral hearing, which took place on 13 October 2014. Mr Barnes was represented by Mr Emeka Pipi of counsel, who in his substituted skeleton argument jettisoned the grounds of appeal relating to the protected disclosure claim. He was right to do so because the tribunal's finding of fact rendered those grounds hopeless.

Mr Pipi substituted a single ground arguing that while the tribunal did give consideration to Mr Barnes' protected disclosure claim, they had not given reasons for rejecting the constructive dismissal claim. Permission was granted on this ground alone and refused on all other grounds. Mr Choudhury has taken up the baton and argued the single ground before us today.

Mr Barnes worked at the Respondent council as a social worker in the looked after child section of the Social Services department. The Respondent has a capability policy. As part of that policy there is a standard-setting, which is part of the informal stage of the disciplinary code.

The capability procedure provides that the employee should be told what standards are expected, how these will be reviewed and over what time period, and that he should be made aware that if he fails to improve further action will be considered. At the end of the review period, if the performance is satisfactory the manager is to meet with the employee to tell him so and also to tell him that the satisfactory performance must be maintained and that his performance will be monitored as part of day to day management actions. The employee is also to be told at this stage that if the satisfactory performance is not maintained for a period of six months, then his manager will consider taking further action.

The Claimant was responsible for a number of children, including a girl aged about 13 who was referred to in the tribunal proceedings as Child A. One of the issues with Child A was that she would frequently abscond from her foster care placement and go to places where she was at risk. There were various care plan panel meetings at which Child A was discussed.

Matters came to a head in July 2011. Mr Ian Smith, the Director of Children's Services, was concerned that the Claimant had not done as much as he should have done to preserve the fostering relationship. Management therefore decided to initiate the standard-setting procedure in respect of the Claimant. The standard-setting meeting took place on 2 August 2011. In accordance with the policy, the Claimant was given targets to achieve and a timescale in which to achieve them.

A review was scheduled for November 2011. However, shortly before that review there was a change in the leader of the Claimant's team. Mrs Wisdom, the new team leader, had limited knowledge of the Claimant's work and the review period was therefore extended to 22 March 2012. The Employment Tribunal found that there was nothing to suggest that the Claimant disagreed with this course of action. He raised no complaint or grievance about being put on a standard setting nor about the extension of the standard-setting period.

In January 2012 there was an Ofsted inspection at the Respondent's Children's Services Department. 70 cases were chosen at random by Ofsted. Only one of these 70 caused concern: this was one where the Claimant was the responsible social worker. The Council gave assurances to Ofsted that the case would be put back on the right course, and set out what would be done and when.

On 12 March 2012 Mr Smith looked at the Respondent's computerised records to try to discover what action had been taken which would satisfy Ofsted that the case really was being put back on the right course. There was no record of any action having been taken. Mrs Wisdom spoke to the Claimant. The same day, the Claimant made entries on the computer system about the case. Although Mr Smith considered that perhaps the standard-setting procedure should not be signed off, Mrs Wisdom disagreed and signed it off on 22 March 2012.

The tribunal made the following findings beginning at paragraph 43 of their decision:

Mrs Wisdom told the Claimant that his performance would be monitored over the next six months in accordance with the policy. The Claimant suggested that the monitoring for six months was improper and not in accordance with the Respondent's policies and that was why he resigned. However, the tribunal's finding is that Mrs Wisdom signed off the standard setting as being satisfactorily completed and in accordance with the policy, told the Claimant that his performance would continue to be monitored for the next six months by way of normal day to day interaction.

The next day, 23 March 2012, the Claimant wrote a letter of resignation as follows:

He placed this letter in Mrs Wisdom's in tray. However, Mrs Wisdom was on holiday and did not receive it. He later agreed to resubmit his notice, which he did in identical terms on 2 April 2012.

While Mrs Wisdom was on holiday, the Claimant telephoned her and left a message telling her he was going to resign because he had a call from Mr Smith's PA about a case. The Claimant, however, seems to have found it sinister that Mr Smith was contacting him directly, albeit via his PA. The tribunal accepts that this is something that Mr Smith regularly did either in person or by his PA and that there was nothing sinister about the request for information. The tribunal also finds on the balance of probabilities that given the Claimant's experience, he would have been aware of this happening either with him or with his colleagues."

The Employment Tribunal concluded their findings as follows:

The Claimant's primary case before the ET was that the Respondent had subjected him to a detriment following the making of a protected disclosure in July 2011 relating to a risk to the health and safety of Child A and that the Respondent had constructively and automatically unfairly dismissed him because he had made such a disclosure. The ET found that there was no protected disclosure and in the course of doing so made significant adverse credibility findings against the Claimant. Since the protected disclosure was the main focus of the case, it is unsurprising that it was also the main focus of the tribunal's determination.

I note that the detriments relied on by the Claimant in the protected disclosure claim were (a) the initiation of the standard setting in August 2011, (b) the extension of the standard setting in November 2011 and (c) the alleged extension of the standard setting on 22 March 2012. The last of these was also relied on as being the "last straw" resulting in him tendering his resignation the next day. As I have already noted, the tribunal found that there was no extension of the standard setting on 22 March 2012.

The law of constructive dismissal has remained essentially unchanged over 35 years. The Employment Tribunal summarised it in paragraphs 12 to 15 of their decision. Since the leading case of Western Excavating v Sharp [1978] ICR 221 it has been established that it is not sufficient to show that the employer was guilty of unreasonable conduct. The Claimant must show that the employer has committed a breach of contract serious enough to amount to a repudiation of the contract.

As Keene LJ observed in Meikle v Nottingham County Council [2005] ICR 1 at paragraph 36:

That is the type of constructive dismissal case which was described by Glidewell LJ in Lewis v Motorworld Garages Ltd [1986] ICR 157 as "the last straw situation", a phrase which was deployed before and by the Employment Tribunal in the present case.

But if a constructive dismissal claim is to succeed on this basis, the Claimant must prove that the employer’s course of conduct leading up to the last straw incident, taken as a whole, was repudiatory. It is not enough for the employee to show that he perceived the employer's behaviour over this period as unreasonable: that was the heresy which was denounced in Western Excavating v Sharp .

Mr Choudhury asks us to note that the short form of reserved judgment at the beginning of the Employment Tribunal's determination says in sub paragraph 2 that "the Claimant's claim of unfair dismissal is dismissed". He submits that the tribunal's failure to use the term "constructive dismissal" at this stage is the first of a number of indications that they did not deal with the constructive dismissal claim.

This is, with respect, a bad point. Constructive dismissal is a shorthand, non-statutory term used by employment lawyers for the type of unfair dismissal claim now covered by section 95(1)(c) contained in Part X of the Employment Rights Act 1996. This says that:

In the present case, there was never any possibility of an ordinary unfair dismissal claim, that is to say one under section 95(1)(a) in which the employer terminates the employee's contract. It was common ground that Mr Barnes had written a letter of resignation. The question was why he had done so. Once the protected disclosure claim was rejected, this was a constructive dismissal claim or it was nothing. The tribunal were well aware of that.

Mr Choudhury's next complaint concerns the tribunal’s list of issues which I set out earlier. Paragraphs 2.1 to 2.6 focus entirely on the protected disclosure claim. So does paragraph 4, asking whether the Claimant was automatically unfairly dismissed by virtue of the protected disclosure. But paragraph 3, after referring to the detriments relied on by the Claimant in support of the protected disclosure claim, goes on to note:

The use of Glidewell LJ's well-known phrase is a clear indication that the tribunal appreciated that the issues raised by the claim included an allegation of constructive dismissal. Indeed, as Mr Choudhury fairly conceded, the tribunal set out in paragraphs 12 to 15 of the determination the basic law relating to constructive dismissal: they referred to section 95(1)(c), Western Excavating v Sharp , Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 346 and Lewis v Motorworld [1985] IRLR 465. There would have been no point in doing so unless by way of preparing the ground for a determination of the constructive dismissal claim. So the real question is whether their conclusions in paragraphs 62.1 to 62.14, and in particular 62.11 to 12, gave adequate reasons for their rejection of that claim. They dealt with the evidence in detail, but omitted at the end to state their conclusion.

Mr Choudhury was asked in oral argument whether, if paragraph 62.12 had included an additional sentence along these lines:

he would have any case on this appeal. He rightly accepted that, if that sentence had been included, he would be in difficulties. But, in my view, the missing sentence is clearly to be implied. On the findings set out by the tribunal in their otherwise comprehensive and careful judgment, they evidently concluded that there was no repudiatory behaviour by the employer - indeed, as I read their determination, they considered that there had been no breach of contract at all.

Given these findings of fact, Mr Barnes had no case on constructive dismissal. The Employment Tribunal were therefore right to dismiss that claim as well as the protected disclosure claim. It follows that I would dismiss this appeal.

LORD JUSTICE CHRISTOPHER CLARKE : I agree. It seems to me that the tribunal must have considered the question of constructive dismissal. It dismissed the Claimant's claim of unfair dismissal in circumstances where the only dismissal in question was a constructive one. It referred to the relevant statutory provisions and authorities. In the light of the tribunal's factual findings, nothing was left which could justify a finding of constructive dismissal.

To set aside the tribunal's decision on the ground that it had not included a sentence along the lines of that referred to by my Lord would be to impose a narrow formalism inconsistent with the substance of what the tribunal decided.

LADY JUSTICE MACUR : I agree with both judgments.