Saint Francis Hospice v Burn

An Employment Tribunal may consider the case as it develops at the hearing. It need not adhere rigidly to an agreed list of issues where doing so would prevent it from deciding the case on the law and evidence, provided no prejudice results.

A refusal to permit accompaniment at a meeting may, in its particular context, contribute to a repudiatory breach of the implied term of mutual trust and confidence. A statutory right to accompaniment does not prevent that conclusion.

In a constructive-dismissal claim, the Tribunal must consider reasonable and proper cause objectively. An appellate court will not substitute its own assessment where the Tribunal has correctly directed itself and reached conclusions open on its findings.

The employee, a nurse and lecturer, resigned after a period of sickness absence. She relied on a letter from her employer as the last straw in a course of conduct which she said destroyed trust and confidence. The Employment Judge at Watford upheld her claim for constructive unfair dismissal and made compensatory awards.

The employer appealed against liability, compensation and the refusal of its costs application. It contended, among other matters, that the Judge had exceeded the agreed issues, wrongly treated the refusal of a companion at a meeting as contractual misconduct, and erred in assessing future loss, mitigation and a Polkey reduction.

The central issues were whether the Judge had applied the correct constructive-dismissal principles and whether one item of compensation had been awarded without procedural fairness.

1. Appeal allowed in part. The finding of constructive unfair dismissal, the remaining compensation findings, and the refusal of costs were upheld. The compensatory award was reduced by £1,996.25, the amount awarded for travel costs.

2. The Employment Judge was entitled to consider the issues in the light of the oral and documentary evidence. An agreed list of issues is not a straitjacket. Any enlargement here arose as the case unfolded, and the employer had the opportunity to challenge the material. It suffered no actual prejudice.

3. The Judge correctly applied the implied term of mutual trust and confidence. The relevant inquiry was whether the employer, without reasonable and proper cause, conducted itself in a manner likely to destroy or seriously damage that relationship. Her self-directions required an objective assessment and recognised that conduct which was merely unreasonable would not suffice.

4. On the facts found, the refusal to allow the employee to be accompanied at a meeting could contribute to a repudiatory breach. Her illness, anxiety, medical support for her request and the surrounding circumstances were material. Section 10 of the Employment Rights Act 1996 did not bar a finding that the refusal breached the implied term.

5. The liability grounds were impermissible attempts to reopen factual and evaluative findings. The Judge had not substituted her own view for that of the employer and her conclusions were open to her.

6. The Judge was entitled to infer that sickness absence would not have continued beyond December 2010, to find adequate mitigation, and to make an 18-month Polkey assessment. Her reasons could be gathered from the judgment as a whole; she was not required to answer every competing submission expressly.

7. The travel-cost award was procedurally unfair. It had not appeared in the schedule of loss, was unsupported by evidence, and the employer had no opportunity to answer it. The matter was not remitted because the employee had had the opportunity to advance the claim on proper notice.

• Employment Appeal Tribunal: appeal allowed only as to the unsupported travel-cost award; the remainder of the Employment Judge's decision was upheld: [2013] UKEAT 0486_12_1308.
• Employment Tribunal at Watford: Employment Judge Lewis held that the employee had been constructively and unfairly dismissed, awarded compensation, and refused the employer's costs application. No citation is stated in the judgment.