M&L Sheet Metals Ltd v Willis

An Employment Tribunal gives adequate reasons where its fact-finding method is rational and sufficiently explains why particular allegations are accepted or rejected. In constructive dismissal, the question is whether the employer committed a repudiatory breach of the implied term of trust and confidence; the range of reasonable responses test under section 98(4) of the Employment Rights Act 1996 does not determine that issue. A later reasonable grievance appeal does not cure an earlier repudiatory breach if the employee retains the option to accept it. Delay during sickness absence will not necessarily amount to affirmation. A 10 per cent uplift may be justified for breach of mandatory grievance-discussion requirements. Loss caused by harassment remains recoverable where its medical consequences prevent alternative employment.

Mr Willis brought claims before the Bedford Employment Tribunal for constructive unfair dismissal and harassment on grounds of sexual orientation. The Tribunal upheld four harassment allegations and one bullying allegation, found that the cumulative conduct and mishandling of the grievance destroyed trust and confidence, and awarded compensation totalling £68,714.84.

M&L Sheet Metals Ltd appealed on adequacy of reasons, perversity, constructive dismissal and remedy. The central issues were whether the Tribunal’s findings were properly reasoned, whether the grievance appeal cured any breach or was waived by delay, whether the earnings loss was caused by harassment, and whether the statutory uplift was justified.

1. Appeal dismissed. No error of law was established in the Employment Tribunal’s decision.
2. The Tribunal’s reasons were adequate. It adopted a rational and plainly explicable approach: allegations were assessed on the balance of probabilities, with corroboration supporting the four harassment findings. The dates relied upon were not fatal because the Tribunal had found that the relevant boxing match occurred in May 2003.
3. Incidents before 1 December 2003 could not constitute harassment under the Employment Equality (Sexual Orientation) Regulations 2003. The upheld allegations were either continuing conduct extending beyond that date or occurred afterwards.
4. On constructive dismissal, the Tribunal correctly treated the employer’s failure to deal properly with the grievance as capable of contributing to a repudiatory breach of the implied term of trust and confidence. Following Buckland v Bournemouth University [2010] EWCA Civ 121, the range of reasonable responses test under section 98(4) of the Employment Rights Act 1996 did not govern that question. A reasonable, though imperfect, grievance appeal did not cure the earlier breach.
5. The Tribunal was entitled to find that the Claimant had not affirmed the contract. His continued sickness absence was inconsistent with affirmation, particularly in the light of his grievance, applying Bashir v Brillo [1979] IRLR 205.
6. The loss of earnings was sufficiently connected with the harassment. The agreed psychiatric evidence attributed the Claimant’s condition directly to his treatment at work. The prospect of redundancy did not break causation because, absent the medical condition, he would probably have obtained alternative employment after a short period.
7. The 10 per cent uplift was justified. The employer had breached the mandatory requirement to discuss the grievance under paragraph 7(1) of the Second Schedule to the Employment Act 2002; no discussion had taken place.
8. The application for costs in the EAT was refused because the Respondent’s conduct was not unreasonable.

1. Employment Appeal Tribunal: dismissed M&L Sheet Metals Ltd’s appeal against the Bedford Employment Tribunal’s judgment dated 20 April 2009, with Reasons promulgated on 17 June 2009.
2. Employment Appeal Tribunal, paper sift: HHJ McMullen QC rejected the appeal under rule R3(7); an oral hearing was permitted under rule R3(10).
3. Bedford Employment Tribunal: upheld claims of constructive unfair dismissal and sexual-orientation harassment and awarded compensation of £68,714.84.