Cleveland Police Authority v Francis

An Employment Appeal Tribunal may interfere with factual conclusions only where an overwhelming case shows that no reasonable tribunal, properly applying the evidence and law, could have reached the decision. The appeal is not a rehearing, even where the appellate tribunal has grave doubts.

In a constructive dismissal claim based on cumulative conduct, the absence of a formal grievance at the time of earlier events does not prevent the tribunal from considering them. The weight to attach to that absence is ordinarily a matter of factual evaluation. A final act need not itself be a contractual breach if it contributes to the cumulative breach and is not wholly innocuous.

Mrs Francis succeeded before the Employment Tribunal at Thornaby on a claim of constructive unfair dismissal. The tribunal found that a cumulative series of workplace events breached the implied term of mutual trust and confidence, with a verbal improvement notice and action plan constituting the final straw. It also rejected the employer’s case that she would shortly have been fairly dismissed for capability or some other substantial reason.

The Cleveland Police Authority appealed, alleging perversity, inadequate pleading, excessive reliance on matters not raised by formal grievance, and errors concerning the final warning and the likelihood of a later fair dismissal. The central issue was whether the tribunal’s factual and evaluative conclusions were legally untenable.

1. Appeal dismissed. The Employment Tribunal had applied the correct law and reached conclusions which were individually and cumulatively tenable.
2. The governing approach to perversity was that an appeal should succeed only where there was an overwhelming case that no reasonable tribunal, properly appreciating the evidence and law, could have reached the decision. Even grave doubts required great caution. The Employment Appeal Tribunal could not convert the appeal into a rehearing of disputed evidence.
3. The tribunal was entitled to consider bullying, exclusion, intimidation, the handling of grievances, the action plan, the capability meeting and the verbal improvement notice as parts of a cumulative breach of trust and confidence. The absence of a contemporaneous formal grievance did not prevent adjudication. Its significance was a matter of factual weight and evaluation, not a question of law. The appeal was not advanced on the statutory bar in section 32(2) of the Employment Act 2002.
4. The tribunal was entitled to treat the final warning and action plan as capable of contributing to the earlier series of acts. The employer was entitled to manage sickness absence, but the particular action taken without current occupational-health advice was open to criticism. In cases of significant work-related stress, formal procedures should be conducted in accordance with current medical advice, and up-to-date advice on fitness to attend a formal meeting was essential.
5. The tribunal was also entitled to reject the argument that Mrs Francis would probably have been fairly dismissed shortly after her sickness certificate expired. Ill-health retirement would have been voluntary, and the tribunal had reserved wider remedy issues.

• Employment Appeal Tribunal: appeal dismissed.
• Employment Tribunal, Thornaby: judgment dated 1 April 2009 upheld the complaint of constructive unfair dismissal and rejected the proposed capability or some other substantial reason dismissal case.