Thornett v Scope
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Laws,Lord Justice Gage |
| Judgment Date | 27 November 2006 |
| Neutral Citation | [2006] EWCA Civ 1600 |
| Docket Number | Case No: A2/2006/0339 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 November 2006 |
[2006] EWCA Civ 1600
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Laws and
Lord Justice Gage
Case No: A2/2006/0339
EAT/477/05/CK
MR DIJEN BASU (instructed by Messrs Eversheds LLP) for the Appellants
MR ANDREW BLAKE (instructed by Messrs Gill Akaster) for the Respondent
This is an appeal against a decision of the Employment Appeal Tribunal, ("EAT"), His Honour Judge McMullen QC presiding, of 8 March 2006. The EAT allowed an appeal by Carol Thornett ("the respondent") against a decision of an employment tribunal held at Exeter dated 1 April 2005. The employment tribunal had decided that the respondent was unfairly dismissed but contributed 25% to her dismissal. A total award of £11,600.25 was made in the respondent's favour.
The respondent appealed against the quantum of damage and the EAT allowed the appeal stating that the judgment awarding compensation "limited to six months future loss … be set aside and the said limitation be removed". The EAT also stated, at paragraph 35, that "the attention of the tribunal was drawn only to the six months immediately post dismissal and a longer view would need to be taken". The case was, by consent, remitted to the same employment tribunal, subject to that being impracticable or impossible.
The facts found
Scope ("the appellants") were formerly known as the Spastics Society. The respondent is a highly qualified engineer and was employed by them from 1 October 1990 until 21 April 2004. She managed their Micro-Technology Support Service ("MTS") at premises in Exeter, Vranch House, made available by the Devon and Exeter Spastics Society. The unit provided aids for disabled persons, principally those suffering from cerebral palsy. Also working at Vranch House were two other engineers, Mr Jones and Mr Warren, and the respondent's personal assistant, Ms Vanstone. The tribunal noted that there was no criticism whatsoever of the respondent's "professional skills, professionalism or dedication to the work".
Mr Jones and Mr Warren worked exclusively at Vranch House. The respondent spent three or four days a week carrying out field assessments and the rest of the week at the premises taking part in the manufacture and adaptation of equipment. The tribunal found that there was clearly a requirement for considerable liaison between her and the two engineers.
In the summer of 2003, Mr Jones made a complaint against the respondent that she had been bullying him and harassing him . She was suspended on 1 August 2003 and the service at Vranch House went into suspension.
The tribunal noted that there were also difficulties with the Chief Executive of the Devon and Exeter Spastics Society, who provided the premises in Exeter. They found that the relationship between the appellants and the Society "continues to be a difficult one". Notice to vacate the premises had been given.
Disciplinary hearings were held in relation to the respondent and four allegations involving three members of staff, Mr Jones, the respondent's line manager and a consultant, were considered. Allegations of "unsatisfactory conduct" were found to be proved (25 November 2003) and the claimant was given a "final written warning which was to remain on her file for a period of two years". The respondent's appeal was unsuccessful. She has never accepted the correctness of that outcome. The tribunal declined, rightly in my view, to reinvestigate that disciplinary matter.
The tribunal found that the respondent "continues to feel aggrieved at the outcome of that matter". The appellants took the view that the respondent should no longer be involved as the manager of the unit and proposed that she should be relocated to the appellants' school near Cardiff. The proposal was that for the first 6 months the parties should see how matters developed.
The respondent objected on the ground that there were no workshop facilities at Cardiff and the tribunal considered her stance to be a reasonable one. The tribunal found that, following a meeting on 4 December 2003, the respondent made it clear that she thought it would be very difficult for her to liaise with Mr Jones. She wrote a note stating: "I cannot see how it could possibly be appropriate or realistic for me to liaise with John Jones in view of what he has done. If I can liaise with him why do I need to be removed to South Wales to do so". She also stated: "I think [briefing Mr John Jones about equipment] would [put me] at the mercy of John feeling bullied". The respondent continued to think that the outcome of the disciplinary proceedings was wrong.
The respondent declined to accept the transfer and Mrs Murphy, the appellants' assistant director, regarded her as having resigned. By a letter dated 28 January 2004, the respondent stated that she had not resigned and "did not wish to relinquish her employment with the [appellants] to whom she felt a considerable degree of dedication". Meanwhile, all at the unit, including Mr Jones, stated that they were happy to work with the respondent again. Further discussion was unsuccessful and the respondent's employment came to an end on 21 April 2004 in circumstances which the appellants conceded before the hearing amounted to a dismissal.
Decision of employment tribunal
The tribunal expressed a conclusion as to whether the dismissal was a fair one at Paragraph 16:
"Was it a fair dismissal? The respondent's case [that in Scope] is that there was no other option available and that in the light of Dr Thornett's resistance to the proposed move they had no alternative but to terminate her employment. We disagree. There was another alternative and, in view of the fact that the respondents were driving the situation, we think it is one which should have been pursued. It was an alternative which was not without risks. It had the potential to fail but nevertheless in our judgment a reasonable employer would have followed it as far as possible. The alternative was that the parties should continue to work as before with the claimant returning to Vranch House. She had been given a warning. It is clear that Dr Thornett was unhappy about that but nevertheless we think a reasonable employer would have taken active steps to encourage the parties to work together. It is a situation which would have required careful management and it its impossible for us to reach any conclusion as to whether in the long term it might have worked. The respondents had indicated to the claimant that they valued her services and in those circumstances we think a reasonable employer would have taken steps to explore that option. That was not done. In particular Dr Thornett made it clear that she was not aware of any proposal that she should return to Vranch House one day a week. We think that a reasonable employer at that stage would have appreciated that there might have been a misunderstanding and would set out the proposals with some clarity so that they could have been considered. The respondent's failure to do that in our judgment renders this dismissal unfair."
The tribunal went on to find, at paragraph 17, that there was contributory fault to the extent of 25%. They stated:
"… Nevertheless the respondents were faced with a very difficult managerial situation. The claimant made it clear that she had considerable reservations about working with Mr Jones in view of what she described as what he had done. We think that this was an unreasonable attitude for Dr Thornett to take. We think that a reasonable attitude for her to have taken would be to express the view, as had her colleagues, that they were at least prepared to try and make the situation work. We are not oblivious to the potential difficulties of that. In that she failed to do that, we think Dr Thornett's conduct was a contributory factor in the termination of her employment and one which we think would be just and equitable to reflect in our finding and in any award of compensation should we be invited to make one."
Having found that the appellants should have taken active steps to encourage the parties to work together, the tribunal concluded, at paragraph 18:
"We have been asked to try and reach some assessment as to how long the situation would have lasted if the respondents had encouraged the parties to try and make the arrangement work. We have not seen Mrs Jones. We have not had any opportunity of hearing any evidence from him and of course it is a highly speculative matter, but nevertheless one which is of importance to the parties. In our view we think the arrangement would have lasted about 6 months. We say that for these reasons. First of all, the respondents had expressed a desire to retain Dr Thornett's evident skills and we think that they could and should have made substantial efforts to try and make the arrangement work. Dr Thornett was probably only going to be there one or perhaps two days a week and so not in Vranch House on a daily basis and Mr Jones had expressed a willingness to try and make it work. For those reasons that is the best assessment we can make."
14. Compensation was assessed on that basis. The respondent, who was aged 52 and had 13 years service, was found to be entitled to a basic award of £4995. To that the tribunal added a compensatory award of £6605.25 allowances having been made as appropriate. If the six month period is correct, those figures are not challenged by either party.
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