Vivian v Bournemouth Borough Council (Unfair Dismissal : no sub-topic) [2011] UKEAT 0254_10

THE HONOURABLE MRS JUSTICE SLADE DBE

1. Mrs Vivian appeals from the judgment of an Employment Tribunal (Employment Judge Ross and Members) (‘the ET’) entered in the Register on 9 December 2009 dismissing her claims that she had suffered a detriment by reason of making a protected disclosure within the meaning of the Employment Rights Act 1996 (‘ERA’) section 47B and was automatically unfairly dismissed for that reason by application of section 103A of the ERA. The Appellant also appeals from the dismissal of her claim for unfair dismissal under ERA section 98.

The facts in outline

2. The following facts are taken from the findings made by the Employment Tribunal and from uncontroversial documents. The Appellant was employed by the Respondent from 19 December 1994 until her dismissal on 8 April 2009. At the time of the events of which complaint is made the Appellant was employed as a secretarial support assistant. Latterly the Appellant reported directly to Seamus Doran, a Senior Housing Officer. In about the end of November 2007 the Appellant complained to the Service Director Mr Josey, Head of Housing and Landlord Services, about an instruction given to her by Mr Shaw, his subordinate. The fact that the Appellant had complained to Mr Josey came to the attention of Mr Doran. Mr Doran made it clear that he considered the Appellant’s behaviour in complaining to Mr Josey to be inappropriate.

3. The Appellant claimed that in January 2008 Mr Doran was ignoring her, or excluding her or bullying her. She sent emails to Mr Josey in which she complained about Mr Doran. Relations between the Appellant and Mr Doran deteriorated to the extent that the Appellant’s union branch secretary suggested mediation.

4. A mediation meeting took place on 22 February 2008. It was conducted by Mr Higgins, the Union Branch Secretary and Ms DeVries, the Employee Relations Manager. Despite the mediation and the recognition by Mr Doran that he should make some changes, the Appellant said that she was fearful for her role with the Respondent and felt further bullied. Shortly after this the Appellant went on sick leave.

5. By letter dated 21 May 2008 the Appellant was informed that the Respondent would undertake an investigation of her complaints against Mr Doran. An external investigator, Linda Taylor, would carry this out. The Appellant was told that the investigation was not to be carried out under the Respondent’s Prevention of Bullying & Harassment at Work Policy. She was informed that one of the potential outcomes of the investigation was a recommendation of redeployment of one or both parties.

6. On 2 June 2008 the Appellant made a formal complaint of bullying against Mr Doran. In her proceedings before the Employment Tribunal she claimed that the raising of this formal grievance was a protected disclosure. Because the Appellant raised a formal grievance the proposed investigation by Mrs Taylor was now to be conducted under the Prevention of Bullying & Harassment at Work Procedure. Mrs Taylor completed her report on 1 August 2008 and presented it to the Respondent. The Appellant received a copy on 8 August 2008. Mrs Taylor considered that there was insufficient evidence to uphold the Appellant’s complaint.

7. Ms Postings, the Service Director for Law and Corporate Governance, wrote to the Appellant on 14 August 2008 that

“…given the conclusions drawn by the investigator and other concerns in relation to yourself, I do not believe that you can continue to work in your role/team.”

The Appellant was invited to a meeting on 27August 2008 to discuss the conclusion of Mrs Taylor’s report. The meeting did not take place and the Appellant exercised her right to appeal against the way in which her complaint had been dealt with. Under the Prevention of Bullying & Harassment at Work Procedure employees have the right to appeal against the way the complaint has been dealt with but not the outcome of the complaint. The Appellant did not consider that the investigation had been thorough, impartial and objective. She said that the report should have investigated her complaint of bullying but Mrs Taylor’s report appeared to be raising accusations against her. The Appellant concluded by saying that had she had confidence in the report being thorough impartial and objective she could have accepted its finding. However she did not have such confidence in the report. The Appellant did not have the right to appeal the outcome of the investigation of the complaint.

8. The appeal was heard on 16 October 2008 by a Statutory Appeal Board of elected Members. The Employment Tribunal record at paragraph 6.16 of their judgment:

“However although all the panel members agreed that the investigation was thorough there were concerns about whether it was completely impartial. It was therefore decided that the best course would be to have a further independent review of the investigation.”

The Employment Tribunal was faced with conflicting evidence as to what was the announced outcome of the appeal. The Employment Tribunal set out at paragraph 6.19 a passage of a letter from the Respondent to the Appellant of 17 October 2008 which included the following:

“I write to confirm the decision of the Statutory Appeals Board to uphold your appeal against the procedure followed under the Bullying and Harassment at Work policy. Your appeal letter stated that you did not feel the procedure being [sic] thorough objective and impartial. The decision of the panel was that although they agreed that the procedure had been thorough there were concerns regarding impartiality. Therefore a decision was taken to commission a further independent investigator to review the work undertaken by Linda Taylor to ensure the outcome stated was a reasonable one for her to recommend. This will not involve a further investigation and those people involved will not be interviewed.”

Formal minutes of the Council meeting recorded that the decision made was that the appeal should be upheld. At paragraph 6.21 the Employment Tribunal record:

“The claimant was clearly upset when after she had a report from Mr Stead that the appeal had been upheld she was informed that in fact a further enquiry was being held and the matter was not finalized.”

9. Mrs Sue Weals, who had worked as a personnel manager for a neighbouring Council, reviewed Mrs Taylor’s report. She delivered her report to the Respondent on 1 November 2008. The Employment Tribunal held at paragraph 6.22:

“She said that she considered that the investigatory report was impartial. She said that she was satisfied that the investigatory conclusion was a reasonable one given the evidence.’

Mrs Weals said in evidence to the Employment Tribunal that she was not aware that the appeal to Members had been upheld because there were doubts about impartiality. She said that it was her assumption that a final decision on the Appellant’s appeal had not yet been reached.

10. By letter dated 18 November 2008 Ms Postings, Service Director, Law & Governance, wrote to the Appellant that the investigation into the allegation of bullying had now been completed. She said that the report of Ms Weals concluded that there was no case to answer. The Employment Tribunal set out in paragraph 6.27 Ms Postings’ statement in her letter that:

“Having considered the report and the opinion of the Investigator that there is not sufficient evidence to uphold the complaint, I can confirm that the matter will not progress any further. Given the conclusions drawn by the Investigator and other concerns in relation to yourself, I do not believe that you can continue to work in your role/team.”

11. The Appellant was invited to a meeting to discuss the conclusions of Mrs Taylor’s report and to give consideration to her redeployment. The Respondent’s Redeployment Policy & Procedures provided that in the case of redeployment for ‘Another substantial reason e.g. issues relating to the Prevention of Bullying and Harassment’:

“From the date of the meeting with the employee, where they are informed of their ‘at risk’ status.

Redeployment will be sought for a period of four weeks. If redeployment is not successful during this period, a further meeting will be held to consider termination of employment. If the contract is terminated, notice will be issued and the ‘at risk’ period will then be extended for the duration of the employee’s notice period (up to a maximum of 12 weeks).”

12. On 15 December 2008 a meeting took place between the Appellant supported by two trade union representatives and Ms Postings and Ms DeVries. Ms Postings gave evidence to the Employment Tribunal that the purpose of the meeting was to find a means by which the Appellant would be reintegrated into the workplace. At the meeting the Appellant presented a letter dated 15 December 2008

“reiterating her concerns about her position and the process that had been followed in respect of her grievance and appeal.”

The Appellant wrote:

“Now the appeal has ended, I would like to be in a position to return to work, confident that I could work in safety and with dignity. With deep regret I am unable to do that, because I know that my grievance has not been dealt with objectively, impartially, thoroughly or according to council policy and procedure, and so it remains outstanding. Also, fundamental aspects of the way that the grievance was dealt with at both stages were so flawed that it is hard to imagine that the failure was accidental. Accidental or not, my faith, trust and confidence in the Council as my employer is now at rock bottom.

The only way forward is to bring these concerns to your attention and ask that they be addressed impartially, objectively, thoroughly and logically, with strict adherence to our policies and procedures.

1) Irrespective of the procedural steps that have been taken, the original grievance remains unresolved.

(a) The investigator’s report was biased to the extent that it was highly offensive, containing comments that either had no basis at all, or which were based on irrelevant counter-allegations, or which were based on gross misrepresentations of fact, or unsubstantiated rumour. These comments formed a significant part of the investigator’s conclusions.

(b) The investigator failed to apply the definition of bullying as set out in the council’s policy. The policy states that in relation to an alleged act of bullying, the intent of the alleged perpetrator is NOT what characterises it as bullying, but rather it is the effect on the complainant. Even though all the acts I complained of were found to have occurred, the investigator simply questioned the alleged bully who, as anyone would reasonably have expected, gave a benign explanation for his actions. The investigator accepted his and his supporters’ explanations at face value and, contrary to our policy, concluded on that basis that the actions were not ‘bullying’.

(c) The investigator allowed herself to be persuaded by counter-allegations, indicating a careless lack of focus on the matter she was supposed to be investigating. Where some of the interviewees made comments that indicated such animosity toward me, it would have been reasonable to interpret that animosity as supporting my grievance. Instead, she used those comments against me and did not question why such matters had not been officially raised with me before, even though they surely should have been if they had any substance. The investigator does not appear to have gone behind any of the information she was given. On face value, she has readily accepted evidence that tends to undermine my grievance, but disregarded that which supports it.

(d) The appeal process was apparently designed to fail. In the meeting, the panel expressed concerns over the investigator’s thoroughness and impartiality. By the time of the follow-up letter, the only concern was with impartiality. This was subsequently downgraded to no concerns at all after the report and documents had been sent, without my permission, to an HR employee of a neighbouring council, without my appeal. So she was given a huge volume of material without any analysis, and was therefore not given the full facts. Curiously, in spite of the damning and in parts irrational nature of the investigator’s report, no cause for concern was found over her impartiality.

(e) The fact that the investigator had an opportunity to comment at the appeal stage was surprising. Even so, her comments again demonstrated her lack of impartiality and honesty in connection with my grievance. Even though this was brought to the appeal panel’s attention, it all seems to have been disregarded.

Irrespective of whether all steps in the original process have now been exhausted, because the process consisted of two wholly flawed stages, the matters raised in my first grievance have not been reasonably addressed, if at all. I cannot be expected to accept the outcome and return to work for the council as if everything is now resolved.”

The Appellant also wrote:

“4)a) For some time now I have been ill with work-related stress. I know that the stress has been caused by my being bullied over a period of time. This is supported by my medical practitioners.

…

In view of what has happened to date, unless I am satisfied that the council acknowledges and has taken suitable and sufficient steps to eliminate or contain the conduct that has caused my present illness, I believe it would be unsafe for me to return to work. I therefore request that the council addresses my concerns with due regard for health and safety, as a matter of urgency.”

The contents of the letter were considered at the meeting.

13. The Agreed Note of Evidence records that the Appellant’s contractual entitlement to full sick pay expired on 6 January 2009 and that two requests to reverse the decision to reduce it were turned down. It was also agreed that evidence was given that the Appellant’s name was placed in the redeployment pool with effect from 8 January 2008 where she remained until her dismissal.

14. In a letter dated 8 January 2009 Ms Postings set out the issues which had been raised by the Appellant at the meeting of 15 December 2008. These were her concerns about the outcome of the appeal, the refusal of her request for an extension of the four week redeployment period and an extension of the period of her entitlement to full sick pay. Ms Postings wrote that the Appellant had confirmed that it would be extremely difficult for her to go back to work with her managers. She informed the Appellant that redeployment was now being considered. Ms Postings set out the steps which would be taken and what would happen if the Respondent were unable to find reasonable alternative employment for the Appellant. The Appellant’s employment would then be terminated with notice. The Employment Tribunal held at paragraph 6.32:

“Ms Postings said that she was unable to agree to an extension of the four week redeployment period because there were no exceptional circumstances to justify this. She also said that she did not agree that her request for an extension of full sick pay could be accepted because there were no exceptional circumstances to justify it.”

By letter dated 14 January 2009 the Appellant complained that the Respondent had not addressed her grievances in the letter of 15 December 2008 and repeated them. The Appellant made it clear that both the letter of 15 December 2008 and that of 14 January 2009 constituted formal grievances. On 14 January 2009 the Appellant wrote:

“Rather than deal with my concerns, including those for my health and safety, the council has caused me to be further aggrieved by the aggressive approach of placing me in a redeployment pool with uncertainties and time limits. So I feel the institutional bullying displayed by the council towards me continues and I find this victimising and threatening. Having originally raised a genuine complaint of bullying I continue to find myself being treated detrimentally, in contrast to the council’s Prevention of Bullying at Work Policy which states: “Intimidation, victimisation or discrimination for making or being involved in a complaint will not be tolerated” and “retaliation against an employee for complaining about or assisting in an investigation of bullying is a disciplinary offence.””

15. Further to email correspondence with her union representative concerning the Appellant’s letters of 15 December 2008 and 14 January 2009, Ms DeVries wrote in a letter dated 12 February 2009 to the Appellant:

“Therefore the outstanding issues of grievance fully concluded are:

0) Exclusion from the follow up to the outcome of the appeal i.e. the appointment of an independent external reviewer;

1) Redeployment and the 4 week time limit.”

16. A hearing to consider the Appellant’s appeal in respect of her outstanding grievances was held on 16 March 2009 by Ms Geddes, Executive Director of Adult and Community Services. These were summarised by Ms Geddes in her letter to the Appellant of 19 March 2009 as:

“1) Concerns about the outcome of the appeal

0) Extension of the 4 week redeployment period

1) Extension of full sick pay.”

The letter notified the Appellant of the dismissal of her appeal.

17. By letter dated 23 March 2009 Ms DeVries wrote to the Appellant informing her that the Respondent was considering terminating her employment and invited her to a meeting on 1 April 2009. She wrote:

“I understand from Michael Stead (Unison) that you feel that you are not in a position to consider any of the redeployment opportunities offered to you so far and will continue to feel this way towards any future opportunities we may offer.”

18. The Appellant was unable to attend the meeting on 1 April 2009 but a statement from her was presented by Graham Parish of Unison who represented her. The Employment Tribunal record at paragraph 6.37 that:

“…the claimant said that she wished to make it clear that she wanted to be able to continue to work for Bournemouth and be placed in an appropriate job. She said that “certain conditions would have to be fulfilled and these were (a) dismissal should be withdrawn; (b) there should be full independent review of the way in which I have been treated over the past fifteen months and persons conducting the review and terms of reference should be jointly agreed; (c) while such a review takes place I should be reinstated and maintain full pay; (d) the issue of redeployment should remain in the balance until the review is concluded; (e) the council should accept responsibility for my poor health and agree to exercise a proper duty of care towards me.””

19. At paragraph 6.39 the Employment Tribunal found:

“During the course of her evidence to the Tribunal the claimant said that she did not feel that she could work with the three managers Mr Doran, Mr Shaw and Mr Josey. She said that if those three managers had been removed it would have been possible for her to go back to work. She also confirmed that she had said to Ms Postings if she had been treated fairly then the outcome would have been that the other three managers would have been redeployed.”

20. Ms Postings replied to the Appellant by letter dated 8 April 2009. The Employment Tribunal record in paragraph 6.38:

“[that she wrote] It is clear that you and Seamus Doran can no longer work together. We have tried to redeploy you but you and your union representative have stated that you would find it extremely difficult for you to go back and work with your managers or currently for the Council at all.

She went on to say that she did not agree with any of the stipulations set out at the end of the claimant’s statement above. She went on to say that “Graham Parish told us that you are unable to consider redeployment opportunities because you are not well and that the issues set out in the statement would need to be addressed before you can consider redeployment.”

The Appellant was dismissed with 12 week’s pay in lieu of notice.

21. The Appellant presented her claim to the Employment Tribunal on 14 April 2009.

The Decision of the Employment Tribunal

22. The Employment Tribunal held that the Appellant’s letter to the Respondent dated 2 June 2009 amounted to a protected disclosure for the purposes of ERA section 47B. There is no challenge to that finding.

23. The Employment Tribunal referred to the Case Management Order of Employment Judge Peters on 1 June 2009 (the ‘CMD Order’). The issues identified included at paragraph A8.2 of Schedule A to the CMD Order:

“The detriment is alleged to be the conduct of the respondent following the complaint of bullying, in particular the manner in which the complaint was addressed, which made the complainant ill, the lost income by reduction of wages and placing the claimant into the redeployment pool rather than moving the alleged perpetrator.”

24. The Employment Tribunal held at paragraph 11:

“The process dealing with the formal allegation of bullying and the process under the policy and procedure was completed when Ms Postings wrote to the claimant on 18 November 2008 saying that it would not be progressed any further. The Tribunal takes the view that the claimant should have presented a claim within three months of that date. She did not do so. The Tribunal is quite satisfied that throughout that period the claimant had access to union and legal advice and was aware of her right to make a claim to the Tribunal. The Tribunal therefore considered that it was reasonably practicable for the claimant to make a claim within that period.”

The claim under ERA section 47B was found to have been presented out of time.

25. The Employment Tribunal held that in any event the ‘actions of the Respondent’ complained of ‘did not flow from the protected disclosure of 2 June 2008’. At paragraph 12 the Employment Tribunal held:

“Mindful of the submissions made by Mr Withington above and the guidance given in the case of London Borough of Harrow v Knight referred to above, the Tribunal is satisfied that it received no evidence to show that the motivation of any of those involved in progressing the formal complaint under the bullying and harassment procedure right through to the final decision on appeal were motivated by the fact that the claimant had made such a protected disclosure. In these circumstances the Tribunal is quite satisfied that for a variety of reasons as set out above the claims for detriment under Section 47 and 48 and Section 47B and 48 should be dismissed.”

26. Since the Employment Tribunal was

“…not satisfied that in any way the disclosure provided the motivation for the respondent’s decision to dismiss”

the Appellant’s claim that she was automatically unfairly dismissed by operation of ERA section 103A was also dismissed.

27. As for the claim of unfair dismissal under ERA section 98 the Employment Tribunal held at paragraph 14:

“The Tribunal on the basis of the findings of fact set out above is quite satisfied that the reason for the dismissal of the claimant was in fact that the relationship had broken down and that the claimant had refused to consider any redeployment. The Tribunal accepts that this amounts to some other substantial reason and is therefore a potentially fair reason.”

28. The Employment Tribunal found that there were a number of unsatisfactory features about the way in which the Appellant’s original complaints were handled. The mediation was handled in an unsatisfactory manner. The Employment Tribunal considered that this may well have exacerbated the difficulties between the Appellant and Mr Doran. The enquiry into the formal complaint was not carried out by Mrs Taylor in the best possible way and some remarks in her report were inappropriate. The way in which the appeal hearing was conducted and concluded gave the Employment Tribunal some cause for concern. On the evidence the clear impression was given that the Appellant’s appeal against the findings of Mrs Taylor was upheld. The Employment Tribunal considered that if the appeal panel felt that their decision depended upon further investigation then their decision should have been expressed as conditional.

29. The Employment Tribunal reminded themselves of the appropriate legal test to be applied in assessing whether the Respondent’s decision to dismiss the Appellant was fair.

30. The Employment Tribunal recorded in paragraph 19 that by March 2009 and probably considerably earlier the Appellant found it impossible to contemplate going back to work for the Respondent unless the conditions set out in her statement for the meeting of 1 April 2009 were met. The Employment Tribunal held at paragraph 20:

“Those conditions coupled with the claimant’s own evidence that she would not have been able to return to the employment of the respondent unless her three immediate managers were removed presented the respondent, in the view of the Tribunal, with an impossible situation. In the view of the Tribunal there is no doubt that a reasonable employer faced with those conditions and those statements could well have reached the decision that it had no alternative but to dismiss that claimant. Some of the conditions suggested by the claimant would clearly be unacceptable to the respondent. Furthermore the claimant would not even consider redeployment and felt that she could not return unless her three immediate managers were removed and this was in spite of the fact that an independent enquiry had found there was no evidence of bullying against the claimant. This meant that the respondent had little alternative but to dismiss the claimant. Certainly the decision to dismiss was well within the band of reasonable responses that a reasonable employer could make.”

In those circumstances the Employment Tribunal held that the Appellant’s claim under ERA section 98 for unfair dismissal must be dismissed.

The Relevant Statutory Provisions

31. Employment Rights Act 1996

“Section 47B

(1)A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

(2)This section does not apply where—

(a)the worker is an employee, and

(b)the detriment in question amounts to dismissal (within the meaning of Part X).

…

Section 48

(1)An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B

…

(3)An employment tribunal shall not consider a complaint under this section unless it is presented—

(a)before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them

(b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

…

(4)For the purposes of subsection (3)—

(a)where an act extends over a period, the “date of the act” means the last day of that period

…

Section 103A

An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

The submissions of the parties

32. Mr Melia, representative on behalf of the Appellant, helpfully adopted the summaries of the grounds of appeal made by Underhill P in his judgment on 13 May 2010 at the EAT rule 3(10) hearing.

Ground 1

The time point

33. It was contended on behalf of the Appellant that the Employment Tribunal erred in holding that the claim under ERA section 47B was presented out of time.

34. Mr Melia accepted that the three month time limit for presenting a claim under ERA section 47B runs from the date of the act (or deliberate failure to act) complained of and not from the date of the detriment.

35. Mr Melia submitted that the Employment Tribunal misinterpreted Issue A8.2 identified by the Employment Judge in the CMD Order and should have appreciated that the conduct of which the Appellant complained extended right up to the dismissal date and included other matters which occurred within three months of the presentation of the ET1. The application of the redeployment policy, of which complaint was made, extended right up to the dismissal date. Reliance was placed on ERA section 48(4)(a).

36. Mr Melia contended that the main issue in the challenge to the conclusion of the Employment Tribunal that the claim under ERA section 47B was presented out of time was the distinction between detriment and act.

37. Mr Melia submitted that the acts complained of by the Appellant were part of a series, each with a causative link to its predecessor. He recognised that there was an element of the ‘but for’ test in his argument. The first link in the chain was the original complaint of bullying by Mr Doran made in the Appellant’s letter of 2 June 2008.

38. Mr Melia contended that it was placing the Appellant in the redeployment pool that was the problem. A policy under which a person who complains of bullying can be put in a redeployment pool and ultimately dismissed as a result of the complaint is inherently contrary to ERA section 47B. If the steps which take a person from a protected act to dismissal are links in a chain of causation each step is the product of the protected act.

39. Mr Melia rightly submitted that if an investigator into a complaint of bullying had been innocently incompetent the outcome of the investigation and its consequences are not necessarily on the grounds of a protected act.

40. No complaint was made about the way the redeployment policy was operated: the Appellant was given vacancies to consider. Mr Melia submitted that if the Appellant’s concerns about the appeal process had been addressed, she would have taken a different view of the redeployment issue. The reason she did not engage with the redeployment process was that she had lost trust and confidence in the Respondent. Mr Melia rightly recognised that if offers of redeployment were turned down without good reason, the link in the chain of causation would be broken and acts thereafter would not be regarded as on the ground of the protected act. However he contended that in the circumstances keeping the Appellant in the redeployment pool was a continuing act.

41. Further, Mr Melia contended that by letter dated 12 February 2009 the Respondent ‘whittled down’ the grievances set out in the Appellant’s letters of December 15 2008 and January 14 2009 to two ‘relatively trivial matters’. So to do was an act carried out within three months before presentation of the ET1 on 14 April 2009 and therefore the Appellant’s complaints under ERA section 47B should have been held to have been presented in time.

42. It was submitted that the reduction in the Appellant’s sick pay in January 2009 was an act carried out within three months of presentation of the ET1. The reduction in such pay was in accordance with the Respondent’s sick pay policy. However as the main reason why the Appellant was off sick was the Respondent’s handling of her complaint, Mr Melia contended that the reduction in sick pay was caused by and therefore on grounds of the protected act and the Appellant’s complaint in relation to the reduction was made in time.

Dismissal of the ERA section 47B claim on the merits

43. As explained in the rule 3(10) judgment of Underhill P in a formulation adopted by Mr Melia, it was contended on behalf of the Appellant that the Employment Tribunal erred in law in determining whether the acts complained of were on grounds of the protected disclosure by considering whether the disclosure was the motivation of the Respondents in so acting. Mr Melia approved the summary made in the rule 3(10) judgment of the Appellant’s challenge to the Employment Tribunal’s alternative basis for rejecting the Appellant’s ERA section 47B claim. At page 4 paragraph 7 Underhill P summarised Mr Melia’s reasoning as follows:

“Turning to the Tribunal’s alternative basis of decision, as set out in paragraph 12 of the Reasons, the points made rather diffusely at paragraphs 12.1 – 12.12 of the Notice of Appeal can be summarised as follows:

(1) The Appellant was subjected to a detriment by being put at risk of dismissal following the rejection of her complaint. That occurred, Mr Melia said, at the moment when her appeal was dismissed and the redeployment policy was accordingly invoked.

(2) That detriment was suffered inevitably as a result of the policy – or the combination of the two policies, that is to say the bullying and harassment policy and the redeployment policy – which are themselves triggered by the making of a complaint.

(3) Therefore the suffering of the detriment can properly be said to have occurred on the ground of – or, to adopt one of the acceptable paraphrases, by reason of or because of – the making of the complaint, which was of course a protected act.

(4) Since that conclusion was inevitable on the Tribunal’s own findings, it was wrong in law in not reaching it.”

44. Mr Melia contended that the Redeployment Policy is inherently discriminatory. Accordingly it was unnecessary, indeed wrong for the Tribunal to consider the mental processes or motivation of the decision taker. Underhill P noted at paragraph 9 of his judgment that Mr Melia was not contending that it could never be right for an Employment Tribunal to consider the motivation of a decision taker.

45. Mr Melia submitted that the Respondent’s procedure for dealing with a complaint of bullying is inherently detrimental because it can lead to the complainant being placed in a redeployment pool. As a result of being in such a pool he or she may be dismissed. Mr Melia contended that by applying these steps the Respondent subjected the Appellant to a detriment on the ground that she had made a protected disclosure.

46. Dealing with a point raised in the Respondent’s Answer in the EAT, Mr Melia contended that, contrary to the Respondent’s position, placing the Appellant in the redeployment pool was a detriment. He submitted that being put in a position of being expected to accept a potentially less desirable role or to be dismissed is a detriment.

Ground 2

Relationship between ERA section 47B and section 103A

47. Mr Melia summarised his contention that the Employment Tribunal erred in failing to find that the Appellant’s dismissal was not by reason of a protected disclosure in Paragraph 3.1 of his skeleton argument:

“The respondent dismissed the claimant because she had not engaged with the redeployment process. She gave her reasons for not doing so in writing on 15 December 2008, 14 January 2009 and 1 April 2009. …If the claimant introduced what the tribunal described as her ‘preconditions’ because of s47B detriment, then the detriment was causative of the conditions. The conditions were obviously causative of the respondent’s decision to dismiss, and so it logically follows that he principal reason for the dismissal is that the employee made a protected disclosure.”

48. Mr Melia contended that as explained by Chadwick LJ in Melia v Magna Kanvei Ltd [2005] EWCA Civ 1547, ERA sections 47B and 103A are intended to be complementary. Accordingly the Employment Tribunal erred in determining whether the dismissal of the Appellant was on grounds of a protected disclosure by reference to whether those who took the decision to dismiss were motivated by it. It is not necessary to establish that the person dismissing was motivated by or even conscious of the protected disclosure. Mr Melia contended that as with his analysis of the application of ERA section 47B, what is material to the decision as to whether a dismissal is on grounds of a protected disclosure is whether such a disclosure caused the chain of events which led to the dismissal. Such a construction is consistent with the aim of the legislation to afford protection to whistleblowers from dismissals which are made to appear or are otherwise apparently unconnected with the protected disclosure.

Ground 3

Detriment: the investigation by Mrs Taylor

49. Mr Melia contended that the Employment Tribunal acted perversely in failing to hold that the investigation carried out by Mrs Taylor was a detriment within the meaning of ERA section 47B.

50. Mr Melia accepted that innocent shortcomings of Mrs Taylor would not amount to acts done on the ground of the protected disclosure. However he contended that the Employment Tribunal erred in failing to consider whether information given to Mrs Taylor by the Respondent, in this case Mr Josey, was designed to achieve an outcome adverse to the Appellant and was given on the ground that she had made a protected disclosure.

51. Mr Melia pointed out that the Employment Tribunal found that Mrs Taylor’s investigation ‘was not carried out in the best possible way’. Mrs Taylor’s report contained adverse comments which originated from Mr Josey yet the Employment Tribunal erred in failing to take into account an email from Mr Josey to Ms Hughes of the Human Resources Department in which he made it clear that he and his colleagues did not want the Appellant back in his department.

Ground 4

Failing to make findings of fact

52. It was said on behalf of the Appellant that the Employment Tribunal erred in failing to take into account the email exchange between Mr Josey and Ms Hughes on 10 October 2008 in deciding whether the adverse outcome of the investigation was on grounds of the protected disclosure. Mr Josey wrote:

“We are quite clear that we do not want Liz back in HLS and she should be redeployed, but no one has informed her of this yet as far as I am aware: hardly fair to Liz either.”

Ms Hughes replied to Mr Josey:

“…we can’t proceed with redeployment just yet as the appeal against the bullying procedure ‘could’ find the procedure/investigation was so flawed that the outcome is therefore erroneous. Even though this is highly unlikely we can’t go ahead with redeployment (which may well end up in dismissal) otherwise we’re ‘jumping the gun’.”

53. Mr Melia referred to the evidence of Mr Josey’s manager, Judith Geddes, who said in cross-examination that she did not think that Mr Josey’s was an appropriate communication to send.

54. Mr Melia said that Mrs Taylor’s report contained adverse comments about the Appellant which originated not from her but from people she interviewed including Mr Josey. The Employment Tribunal failed to have regard to Mr Josey’s desire to have the Appellant moved from his department.

55. Further, Mr Melia submitted that Mr Josey’s comments were prima facie evidence of a desire to subject the Appellant to a detriment by redeploying her on the ground that she had made a complaint of bullying against Mr Doran irrespective of the outcome of her appeal.

56. It was said that in light of Mr Josey’s email the Employment Tribunal erred in holding that the Respondents were not motivated in their actions by the fact that the Appellant had made a protected disclosure. It was submitted by Mr Melia that the Employment Tribunal erred in failing to take into account these matters in considering and whether the Appellant had been subjected to a detriment on grounds of making a protected disclosure, and in considering the fairness of her dismissal under ERA section 98.

Ground 5

Fairness of dismissal: ERA section 98

57. In addition to the points relied upon in support of the contention that the Employment Tribunal erred in failing to hold that the Appellant was subjected to a detriment on grounds of making a protected disclosure, Mr Melia submitted that the Employment Tribunal erred in holding that her dismissal was fair in light of the difficulties caused to the Respondent by the conditions she had specified for accepting redeployment. He contended that the Employment Tribunal failed to take into account the Appellant’s grievance of 15 December 2008 and that she was on the point of resigning by reason of the Respondent’s breaches of contract set out in that letter.

58. Mr Melia contended that in assessing the fairness of the dismissal, the Employment Tribunal erred in failing to take into account the alleged breaches of contract by the Respondent which led the Appellant to contemplate resigning. Reliance was placed on WE Cox Toner (International) Ltd v Cook [1981] ICR 828 to contend that these breaches had not been waived by the Appellant and they were given insufficient weight by the Employment Tribunal in assessing the fairness of the dismissal. Further the Employment Tribunal erred in failing to consider whether the Appellant’s conditions for redeployment were to any extent justified by reason of the Respondent’s conduct in the way they had dealt with her grievances. In written submissions before the Employment Tribunal Mr Melia contended that the Respondent had been in fundamental breach of contract from February 2009 and that the Appellant was therefore relieved of her contractual obligations including any duty to engage with the redeployment process.

The contentions on behalf of the Respondent

Ground 1

The time point

59. Mr Withington on behalf of the Respondent contended that at a Case Management Discussion at which the Appellant had been represented by Mr Melia as she was in the Appeal before us, the Employment Judge by his Order of 1 June 2009 identified in paragraph A8.2 the detriments alleged. These were the manner in which the Appellant’s complaint was addressed, the reduction in wages and placing the Appellant into the redeployment pool rather than moving the alleged perpetrator. He submitted that the Employment Tribunal did not err in deciding that the Appellant’s claim under ERA section 47B should have been presented within three months of the conclusion on 18 November 2008 of the process dealing with the allegation of bullying.

60. Mr Withington referred to the agreed identification of the alleged detriment suffered by the Appellant as ‘placing the claimant into the redeployment pool’. This occurred on 8 January 2009. The claim was accordingly out of time even if time were to run from 8 January 2009 rather than 18 December 2008.

61. Further, if the act complained of were the reduction in wages, the decision that contractual sick pay had expired was communicated on 6 January 2009 and took effect on the same date. Three months from that date expired before the date of the presentation to the Employment Tribunal of the claim under ERA section 47B.

62. Relying on the language of ERA section 48(3)(a) pursuant to which time runs from ‘the date of the act or failure to act to which the complaint relates’ Mr Withington submitted that time runs from the date of the act or failure to act to which complaint relates and not from the detriment suffered as a result of that act. This was a distinction explained in London Borough of Harrow v Knight [2003] IRLR 40.

63. Mr Withington submitted that the Employment Tribunal were correct and certainly not perverse on the evidence before them to determine that the act of which complaint was made was the way in which the complaint of bullying had been dealt with. The other issues identified in paragraph A8.2 of the Directions given at the Case Management Hearing were detriments consequent upon the determination of the Appellant’s complaint.

64. The Appellant’s remaining in the redeployment pool was not a continuing act. Mr Withington submitted that it ill behoves a claimant who fails to participate in redeployment to complain of being retained in the redeployment pool. Further she and her Manager had reached the view that they could not work together. The Appellant stated that she could not return to the department when her three line managers remained. It was submitted that she was to be moved from her department in part because her complaint against her manager was not upheld and in part because she wanted her managers to be moved. The Prevention of Bullying policy recognises the need to separate employees in such circumstances. This is a commonsense approach.

Dismissal of the ERA section 47B claim on the merits

65. Mr Withington submitted that placing the Appellant in redeployment pool was not a detriment. It resulted from the application of the Respondent’s Prevention of Bullying policy.

66. Mr Withington pointed out that the Prevention of Bullying & Harassment at Work Procedure does not provide automatic redeployment of a complainant whose complaint is not upheld. A decision must be taken that the complainant and the person about whom the complaint was made must be separated and that the person moving should be found a different job.

67. Ms Postings took the decision to redeploy the Appellant. Mr Withington submitted that there was no evidence that Ms Postings took the decision to place the Appellant in the redeployment pool because she had made a complaint of bullying. Even on Mr Melia’s argument, the making of the complaint did not lead inevitably to the Appellant being placed in the redeployment pool and then being dismissed. Given the Appellant’s views about her three immediate managers, separation was the only possible outcome. Further, it was the Appellant’s failure to engage in the redeployment process which led to her remaining in the pool and ultimately to her dismissal. In these respects there was in any event a breach in the chain of causation between the protected disclosure of 2 June 2008 and the Appellant being placed and remaining in the redeployment pool.

68. Mr Withington pointed out that the Employment Tribunal found that they had received no evidence to show that the motivation of any of those involved in progressing the formal complaint under the Prevention of Bullying & Harassment at Work Procedure through to the final decision on appeal was the fact that the Appellant had made a protected disclosure.

69. Mr Withington accordingly submitted that the Employment Tribunal had not erred in their second basis for dismissing the Appellant’s claim under ERA section 47B: it failed on the merits.

Ground 2

The relationship between ERA section 47B and section 103A

70. Mr Withington relied upon the arguments advanced in resisting the appeal from the dismissal of the claim under ERA section 47B to resist the appeal from the dismissal of the automatic unfair dismissal claim under ERA section 103A.

Ground 3

The investigation by Mrs Taylor

71. As Underhill P pointed out in paragraph 11 of his judgment, the ground of appeal that the Employment Tribunal erred in failing to hold that the Appellant had suffered a detriment, is only open if the claim under ERA section 47B was in time.

72. Mr Withington submitted that the contention that the conduct of the investigation by Mrs Taylor constituted a detriment to which the Appellant was subjected by an act done on the ground of her protected disclosure for the purposes of ERA section 47B is unsustainable in light of the finding of the Employment Tribunal in paragraph 16 of the judgment that:

“…the Tribunal is not satisfied that the enquiry was carried out in the best possible way and certainly during the course of her evidence Mrs Taylor confirmed that some of her remarks in her report were inappropriate. Having said that the Tribunal accepts entirely that Mrs Taylor acted perfectly reasonably in reaching a conclusion that there had been no bullying of the claimant on the part of Mr Doran.”

Ground 4

Failing to make relevant findings of fact

73. Mr Withington contended that the Employment Tribunal did not err in failing to make findings of fact regarding the email exchange between Mr Josey and Ms Hughes. Ms Hughes and Mr Josey did not take any material decision in relation to the Appellant either about the acts complained of or her dismissal. The Agreed Note of Evidence records at paragraph 3 that:

“The Employment Tribunal was not asked or expected to make a finding as to whether the email exchange between Mr Josey and Ms Hughes was known about by any other person. Ms Geddes and Ms Postings specifically denied that they were aware of it and Ms Vivian was not aware of it until it was included as part of the Respondent’s disclosure. The email exchange was not referred to in the cross-examination of Councillor Montrose, Councillor Lovell, Ms Taylor or Ms Weal.”

Mr Withington commented that the high point of the Appellant’s argument on this issue is set out in paragraph 2 of the note of evidence which records:

“Judith Geddes, the Respondent’s Executive Director of Adult and Community Services and Mr Josey’s manager, when asked if she thought Mr Josey’s email had been an appropriate communication for him to send to Ms Hughes six days before the appeal, said that she did not think it was appropriate and that Mr Josey had made a wrong judgement in sending the email at that time.”

Ground 5

Fairness of dismissal – ERA section 98

74. Mr Withington submitted that the essence of this ground of appeal is that the Employment Tribunal based their decision on the fairness of the Appellant’s dismissal on her conduct without taking into account the conduct of the Respondent which she said was the reason for her losing trust and confidence in the Respondent. Mr Melia on behalf of the Appellant had contended in written submissions before the Employment Tribunal that the Respondent had been in fundamental breach of contract from 12 February 2009 and that the Appellant was therefore relieved of her contractual obligations including any duty to engage with the redeployment process.

75. It was submitted on behalf of the Respondent that it is apparent that the Employment Tribunal in paragraphs 14 to 21 of their judgment carefully considered all the relevant circumstances in which the Appellant came to be dismissed. There was no appeal against the findings of fact. The Employment Tribunal specifically considered the reasonableness of the conditions put forward by the Appellant if she was to return to work. Mr Withington submitted that it is wrong, as a matter of law, for Mr Melia to contend that because, as was alleged, the Respondent was in breach of contract therefore the Appellant was relieved of her contractual obligations including any duty to engage with the redeployment process.

76. Mr Withington contended that the Employment Tribunal did not err in law in considering the Appellant’s claim of unfair dismissal and came to a conclusion which was open to them on the evidence.

Discussion and Conclusion

Ground 1

The time point

77. The three month period with which a complaint under ERA section 47B must be presented runs from the date of the act complained of not from the detriment alleged to be suffered as a result. Where the act or failure is part of a series of acts or failures, pursuant to ERA section 48(3)(a) the three months period runs from the last of them. Pursuant to ERA section 48(4)(a) where an act extends over a period, the ‘date of the act’ means the last day of that period.

78. All four elements identified by Underhill P in the EAT in Knight v London Borough of Harrow [2003] IRLR 40 paragraph 5 must be established in order to succeed in a claim under ERA section 47B. These are:

1) that the claimant has made a protected disclosure;

2) that the claimant has suffered some detriment;

3) that the respondent had ‘done’ an act or deliberate failure to act by which she had been ‘subjected’ to that detriment; and

4) that that act or omission had been done by the respondent ‘on the ground that’ the claimant had made the protected disclosure identified.

Accordingly such a claim cannot be brought until the act complained of has caused a detriment. A detriment caused by an act done on the grounds of a protected disclosure may be suffered more than three months after the act. In such circumstances it could be said that it was not reasonably practicable to present a claim to an Employment Tribunal within three months of the act. If the claim were brought within a reasonable period thereafter it may be held to be in time by application of ERA section 48(3)(b). However Section 43(b) was not relied upon in this case.

79. For the purpose of determining when the limitation period starts to run it is necessary to distinguish between an ‘act’ and a ‘detriment’ within the meaning of ERA section 47B. A claim under section 47B cannot be brought unless all four elements identified in Knight are present. It is also necessary to distinguish between ‘act’ and ‘detriment’ to determine whether a claim under ERA section 47B is established. The central importance of distinguishing between acts and detriments was recognised by Mr Melia.

80. An ‘act’ within ERA section 47B must be done ‘on the ground that the worker has made a protected disclosure’. ‘On the ground that’ means that the reason for the act is the protected disclosure. The linkage between the act and the disclosure does not raise a question of causation but of conscious or unconscious reasoning. This is to be contrasted with the link between ‘act’ and the ‘detriment’ which is a question of causation.

81. ERA section 47B provides that the ‘act’ which is the event from which time starts to run for the purposes of the three month limitation period is done ‘on the ground’ that the worker has made a protected disclosure.

82. Lord Nicholls in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 at paragraph 29 held that the phrases ‘on racial grounds’ and ‘by reason that’ in the discrimination and victimisation provisions of the Race Relations Act 1976 both raised the question:

“…why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”

83. The phrases ‘on the grounds’ in ERA section 47B and ‘on racial grounds’ in RRA section 1(1)(a) considered in Khan are materially indistinguishable. An ‘act’ from which time starts to run for the purposes of ERA section 48(3)(a), whether it be a single act or a series of acts, is one which is done by the Respondent for the reason that the Claimant had carried out a protected act.

84. An event alleged to have been caused by an act which is not asserted to have been carried out consciously or unconsciously for the reason that the claimant had carried out a protected act would not be an ‘act’ within the meaning of ERA section 47B. Lord Nicholls stated in Khan at paragraph 29:

“Contrary to views sometimes stated, the third ingredient (‘by reason that’) does not raise a question of causation as that expression is usually understood.’

85. An act may be done ‘on the ground that the worker has made a protected disclosure’ if that reason is inherent in the act itself. In Amnesty International v Ahmed [2009] ICR 1450 Underhill P in the EAT held at paragraph 33:

“In some cases the ground, or the reason, for the treatment complained of is inherent in the act itself. …James v Eastleigh Borough Council [1990] ICR 554 is a case of this kind. …The council was therefore applying a criterion which was of its nature discriminatory: it was, as Lord Goff put it, at p 574 f, “gender based”. In cases of this kind what was going on inside the head of the putative discriminator—whether described as his intention, his motive, his reason or his purpose—will be irrelevant. The “ground” of his action being inherent in the act itself, no further inquiry is needed.”

86. However by contrast with the test for determining whether an ‘act’ is done ‘on the ground’ that the worker has made a protected disclosure, in our judgment the link between the ‘detriment’ and the ‘act’ within the meaning of the ERA section 47B is causative. The act of which complaint is made must have caused the detriment.

87. The Employment Judge set out at paragraph A8.2 of Schedule A to the CMD Order of 1 June 2009 set out the detriment alleged. Although it is quoted earlier in this judgment we repeat it here:

“The detriment is alleged to be the conduct of the Respondent following the complaint of bullying, in particular the manner in which the complaint was addressed, which made the complainant ill, the lost income by reduction of wages and placing the claimant into the redeployment pool rather than moving the alleged perpetrator.”

88. The Employment Judge recorded in paragraph A9:

“In relation to both allegations of detriment, the respondent asserts that the complaints are out of time.”

The Employment Judge was therefore referring to two allegations of detriment. It appears that the detriments set out in paragraph A8.2 were the conduct of the Respondent following the complaint of bullying and placing the Appellant into the redeployment pool rather than moving the alleged perpetrator.

89. Although the matters set out in paragraph A8.2 of Schedule A to the CMD Order are described as ‘detriment’, since the complaints are of acts of the Respondent to which the time point was related, in our judgment they are to be regarded as ‘acts’ rather than ‘detriment’.

90. If the last act of which complaint was made was placing the Appellant in the redeployment pool which was done on 8 January 2009 the complaint presented to the Employment Tribunal on 14 April 2009 would be out of time.

91. The basis upon which Mr Melia contended that events after 8 January 2009 when the Appellant was placed in the redeployment pool were acts of the Respondent from which time runs for the purposes of ERA section 47B was that they were ‘links in the chain’ leading back to the protected disclosure. In our judgment this line of reasoning demonstrates that such events were ‘detriments’ not ‘acts’ within the meaning of ERA section 47B.

92. It was not alleged that any act after the Appellant was placed in the redeployment pool on 8 January 2009 was carried out by the Respondent on the ground or for the reason that she had carried out a protected act. Accordingly it is only if the application of the relevant features of the Prevention of Bullying & Harassment Policy and the Redeployment Policy & Procedures are inherently on that ground that there could be said to be a series of acts continuing beyond the act of putting the Appellant into the Redeployment Procedure.

93. The submission on behalf of the Appellant was that as someone who had complained of bullying she should not have been placed in the Redeployment Procedure which could lead ultimately to her dismissal. What occurred when the Appellant was in the Procedure was not alleged to be on the grounds of her complaint that she had been bullied nor was it alleged that the Redeployment Procedure inherently treated an employee detrimentally on grounds that they had made a protected disclosure. Rather the complaint was of being put into the procedure in the first place. Accordingly in our judgment the application and consequences of being placed into the Redeployment Procedure are not ‘acts’ for the purposes of ERA section 47B.

94. As for the other matters asserted by Mr Melia to have been ‘acts’ within the meaning of ERA section 47B, from the Agreed Note of Evidence it appears that the reduction in sick pay occurred on 6 January 2009 not February 2009 as stated in the skeleton argument on behalf of the Appellant. A complaint in relation to that act was presented out of time. The alleged ‘whittling down’ of grievances raised by the Appellant in her letters of 15 December 2008 and 14 January 2009 by Ms DeVries in her letter of 12 February 2009 was not alleged to have been on the ground that the Appellant had made a protected disclosure nor was it said to be inherently on that ground.

95. Since the actions of the Respondent relied upon after the Appellant was placed in the Redeployment Procedure were said to be linked to but not on grounds of the protected act in our judgment they do not constitute acts, a series of acts or an act extending over a period for the purposes of ERA section 47B. Accordingly although it is arguable that the last act of the Respondent from which the three month limitation period started to run was 8 January 2009, the date on which the Appellant was put into the Redeployment Procedure, rather than 18 November 2008 when the process dealing with the allegation of bullying was completed, the claim under ERA section 47B presented to the Employment Tribunal on 14 April 2009 was out of time.

Dismissal of the ERA section 47B claim on the merits

96. The Appellant’s challenge to the dismissal of her claim under ERA section 47B on the merits depends upon establishing that the Employment Tribunal erred in failing to hold that application of the relevant provision of the Prevention of Bullying & Harassment Policy and the Redeployment Policy in the circumstances of the Appellant’s case was intrinsically an act or acts on the grounds of a protected disclosure. There was no such finding of fact to that effect and no challenge to the judgment of the Employment Tribunal for failing so to find.

97. The Procedures do not necessarily lead to a complainant of bullying being placed in the Redeployment Procedure. The Prevention of Bullying & Harassment Procedure provides for different courses of action depending on whether the complaint is or is not upheld. In either case someone will decide upon the appropriate course of action. In either case separation of the complainant and the perpetrator or alleged perpetrator may be considered. If separation is decided upon the Redeployment Policy & Procedures applies. This applies to a number of situations in which the Respondent decides that different employment should be sought for an employee. The Redeployment Procedure may also be applied when a job comes to an end due to redundancy, when due to medical reasons an employee cannot continue in their current post and when a fixed term contract is not renewed.

98. In our judgment it cannot be said on the material before us that the Prevention of Bullying and Redeployment Procedures inherently led the Respondent to act on the grounds of an employee making a protected disclosure to the employee’s detriment. The step of which the Appellant complains, separation of the complainant and the alleged perpetrator by placing her in the redeployment pool, may well benefit the complainant. It would be undertaken not just because a complaint of bullying has been made but because someone has assessed the circumstances and decided that the complainant and the alleged perpetrator should be separated. There is no obvious reason why an employee against whom allegations of bullying have not been upheld should be moved from his or her post rather than the complainant.

99. Since the Prevention of Bullying and Redeployment Procedures rightly have not been found to operate to the detriment of a person who makes a complaint of bullying, it was material for the Employment Tribunal to make a finding as to the reason why Ms Postings put the Appellant into the Redeployment Procedure. As Lord Nicholls observed in Khan the reason why a person acted as he did is a question of fact. The Employment Tribunal made the following finding of fact in paragraph 12:

“…the Tribunal is satisfied that it received no evidence to show that the motivation of any of those involved in progressing the formal complaint under the bullying and harassment procedure right through to the final decision on appeal were motivated by the fact that the claimant had made such a protected disclosure.”

100. The final decision on appeal set out in the findings of fact was that of Ms Geddes on 16 March 2009. The Employment Tribunal made an unchallenged finding of fact that none of those who were involved in dealing with the Appellant’s complaint were motivated by the fact that she had made a protected disclosure. Thus the Employment Tribunal did not err in dismissing the Appellant’s claims under ERA section 47B on the merits even if they had been presented in time.

Ground 2

Relationship between ERA section 47B and section 103A

101. The Employment Tribunal held that the Appellant was dismissed for some other substantial reason within the meaning of ERA section 98(1)(b). At paragraph 14 they held:

“The Tribunal on the basis of the findings of fact set out above is quite satisfied that the reason for the dismissal of the claimant was in fact that the relationship between her and manager and indeed her more senior managers had broken down and that the claimant had refused to consider any redeployment. The Tribunal accepts that this amounts to some other substantial reason and is therefore a potentially fair reason.”

102. The findings of fact upon which the conclusion of the Tribunal based their decision are not challenged. However Mr Melia contended that the Employment Tribunal should have decided that the reason why the Appellant did not engage in redeployment and insisted on her managers being moved before she would go back to work was her loss of trust and confidence in the Respondent because of the way in which they had dealt with her complaint of bullying. Even if the Employment Tribunal had considered the reasons behind the reason for dismissal, since they had found as a fact that the Respondent had not been motivated in dealing with her complaint of bullying by the fact that she had made a protected disclosure, their findings could not have supported a conclusion that the reason for the Appellant’s dismissal was that she had made a protected disclosure.

103. A finding of the reason for dismissal requires the analysis explained by Lord Nicholls in Khan. As with ERA section 47B the consideration of the ‘reason for dismissal’ and ‘on the grounds of’ requires a decision on the conscious or unconscious reason for the action. Its consideration does not raise a question of causation. Mr Melia’s challenge to the finding of the Employment Tribunal that the reason for the Appellant’s dismissal was not that she had made a protected disclosure depended upon his causation/links in the chain argument. The Employment Tribunal did not err in deciding the reason for the Appellant’s dismissal on the basis of the Respondent’s reason for it and not the reason why the Appellant failed to engage in the redeployment process and imposed unacceptable preconditions for her return to work.

Ground 3

Detriment: the investigation by Mrs Taylor

104. Unless it were found as a fact that Mrs Taylor conducted her investigation incompetently because the Appellant had made a protected disclosure or had for that reason accepted the adverse comments made about her by Mr Josey, the Employment Tribunal did not err in failing to hold that these were acts on those grounds or, as asserted on behalf of the Appellant, a ‘detriment’.

Ground 4

Reasonableness of dismissal, ERA section 98

105. We reject the contention of Mr Melia that the alleged breach of trust and confidence by the Respondent in dealing with the Appellant’s complaint of bullying which could, she alleged, have warranted her resignation and claim of constructive dismissal, relieved her of her contractual obligations including that of co-operating in the redeployment process. If an employee considers that his employer is in fundamental breach of contract he may resign and claim constructive dismissal. Cox Toner on which Mr Melia relied does not support the submission he made that a breach of contract by the employer relieves the employee of further performance. It does not. The employee can resign, claim constructive dismissal and after termination of his contract be relieved of further performance. If he remains in employment after a fundamental breach by his employer and delays before resigning, it will be a question of fact taking into account relevant circumstances as to whether he has waived the breach (see Cox Toner). However if he remains in employment he remains bound to perform his contractual obligations. In our judgment the Employment Tribunal did not err in failing to hold that the Appellant was relieved of her contractual obligation to co-operate in the redeployment procedure.

106. We have considered whether the Employment Tribunal failed or failed adequately to take into account the circumstances which caused the Appellant not to co-operate with redeployment and to impose the unacceptable conditions for her return to work which led to her dismissal.

107. The hearing before the Employment Tribunal lasted for four days. The parties were ably represented by Mr Melia and Mr Withington who appeared before us. The Employment Tribunal made full findings of fact which included in paragraphs 15 to 18 of their judgment criticism of the Respondents. They commented that there were a number of unsatisfactory features about the way in which the Appellant’s original complaints were handled. Some of the remarks in Mrs Taylor’s report were inappropriate. The way in which the appeal hearing before Members was conducted and concluded gave the Employment Tribunal some cause for concern. The conveying of its decision to the Appellant was unsatisfactory. The Employment Tribunal held that by March 2009 the Appellant found it impossible to contemplate going back to work unless certain conditions had been fulfilled.

108. Having considered the relevant facts which were set out in their judgment, the Employment Tribunal concluded at paragraph 20, quoted in full earlier in this judgment, that the conditions the Appellant set for her return to work, her statement that she would not even consider redeployment and felt that she could not return unless her three immediate managers were removed in spite of the fact that an independent enquiry had found there was no evidence of bullying against the claimant, meant that the Respondent had little alternative but to dismiss the Appellant. In those circumstances the Employment Tribunal held that the decision to dismiss was well within the band of reasonable responses that a reasonable employer could make.

109. In our judgment the Employment Tribunal came to a conclusion open to them on the evidence and did not err in law.

110. Accordingly despite Mr Melia’s well considered arguments all the grounds of appeal are dismissed.

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Vivian v Bournemouth Borough Council (Unfair Dismissal : no sub-topic) [2011] UKEAT 0254_10_0605 (06 May 2011) URL: http://www.bailii.org/uk/cases/UKEAT/2011/0254_10_0605.html Cite as: [2011] UKEAT 0254_10_0605, [2011] UKEAT 254_10_605

United Kingdom Employment Appeal Tribunal