Kaur v Leeds Teaching Hospitals NHS Trust, Court of Appeal - Civil Division, May 01, 2018, [2018] EWCA Civ 978

Issuing Organization:Civil Division
Actores:Kaur v Leeds Teaching Hospitals NHS Trust
Resolution Date:May 01, 2018
 
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Neutral Citation Number: [2018] EWCA Civ 978

Case No: A2/2016/2944

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

HH Judge Hand QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 01/05/2018

Before:

LORD JUSTICE UNDERHILL

and

LORD JUSTICE SINGH

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Between:

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The Appellant appeared in person

Mr David Reade QC and Mr Nicholas Siddall (instructed by Hill Dickinson) for the Respondent

Hearing date: 15th March 2018

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Lord Justice Underhill:

INTRODUCTION

  1. The Appellant was employed by the Respondent Trust as a nurse between 4 August 2008 and 28 August 2014. In January 2015 she commenced proceedings against the Trust in the Employment Tribunal claiming for unfair (constructive) dismissal. At a preliminary hearing on 7 May 2015 her claim was struck out by Employment Judge Lancaster under rule 37 (1) (a) of the Employment Tribunal Rules of Procedure. On 2 June 2016 her appeal against that decision was dismissed by the Employment Appeal Tribunal (HHJ Hand QC sitting alone) under rule 3 (10) of the Employment Appeal Tribunal Rules 1993 (as amended). This is an appeal against that decision. The circumstances surrounding the grant of permission to appeal are a little complicated, and I will come back to them in due course.

  2. Although the Appellant was represented in the ET and the EAT she is unrepresented on the current appeal (though I should say that the Court has on more than one occasion encouraged her to seek pro bono representation).

    THE FACTS

  3. As the original proceedings were struck out, there have been no findings of fact. I take the following summary from the facts alleged in the Appellant's ET1 and Further and Better Particulars and from the contemporary documents.

  4. The Appellant says that from the very early days of her employment she was the subject of complaints about her performance which were not justified. She was put on a formal capability process in 2010. Despite numerous obstacles being put in her way she was finally deemed competent in January 2012. However she says that the episode badly undermined her self-confidence.

  5. Separately, problems developed between herself and a number of colleagues who she felt were bullying her. These included in particular a healthcare assistant called Marilyn Luckaine. She made a formal complaint about their conduct in 2012, but no action was taken by the Trust.

  6. On 22 April 2013 there was an altercation between the Appellant (who was pregnant) and Ms Luckaine. Each said that the other assaulted her in the course of the incident. There were several witnesses to the incident or its aftermath. The Appellant went off sick and raised a Dignity at Work complaint against Ms Luckaine. (I should mention that there had been another incident between the two on 8 April, but that is not material to the issues before us.)

  7. There was an investigation of the incident of 22 April under the Trust's disciplinary processes, which was not completed until the end of July. The recommendation was that disciplinary proceedings should be brought against both the Appellant and Ms Luckaine. There was a hearing before a disciplinary panel in the Appellant's case on 2 October 2013. She was told that this also covered her Dignity at Work complaint. She was represented by an RCN representative, Peta Clark. There were statements and interview records from a number of witnesses. Three of them - Ms Luckaine, a nurse called Jan Batchelor and a healthcare assistant called Claire Pease - attended the hearing at the Appellant's request to be questioned.

  8. The panel's decision was communicated to the Appellant by letter dated 16 October 2013. It decided that she was guilty of ``inappropriate behaviour''. Precisely what behaviour was found to have occurred is not entirely clearly spelt out, but on a reasonable reading of the letter the panel found that the Appellant and Ms Luckaine had been shouting at one another, close to an area where patients were being treated; and it was in any event confirmed on the subsequent appeal that that was what had been found. The panel recorded that there was conflicting evidence as to whether the Appellant had made physical contact with Ms Luckaine but it deliberately refrained from deciding that issue. She was given a final written warning. Shortly afterwards she commenced a period of maternity leave.

  9. The case against Ms Luckaine was also found proved, though there are no details of the process followed in her case; and she too was given a final written warning.

  10. The Appellant appealed in accordance with the Trust's internal procedures. There was a substantial delay in hearing the appeal because she had recently given birth, but a hearing eventually took place on 14 July 2014. The Appellant was again represented by Ms Clark. Her appeal was dismissed, and the reasons given in a letter dated 16 July.

  11. The Appellant gave notice of resignation the following day. Her employment terminated on 28 August 2014. The material parts of her resignation letter read:

    ``You are aware of the incidence of 22.04.2013 which was the final straw. I raised Dignity at Work concerns following 22.04.2013's incidence. I was issued with a Final Written Warning instead, under the Conduct matter during 02.10.2013's Hearing. I feel I have not been treated fairly during the process right from the beginning, including its investigation process, witnesses and evidence used, up until the issue of the outcome, as a Final Written Warning. I Appealed the Outcome but to no avail. I attended the appeal Hearing on 14.07.2014 where the Initial Final written Warning issued was upheld. I received the email today, informing me the Outcome of the Appeal in writing, issued by Mr Hamish McClure.

    The Dignity at Work concerns raised on 22.04.2013 are still pending and were not even acknowledged until October 2013 when I was about to go on my long maternity leave. I feel this is not appropriate/acceptable response expected from the concerned personnel dealing with the matter, given the fact I was off sick with Work Related Stress since 23.04.2013 during my pregnancy at the time.

    I feel that I am left with no choice but to resign in light of the fundamental breach of contract and a fundamental breach of trust and confidence.

    I consider this to be a fundamental/unreasonable breach of a contract on Leeds Teaching Hospital's Trust part.''

    THE ET PROCEEDINGS

  12. In her ET1 the Appellant set out the details of her claim as follows:

    ``The main essence of my claim is this. I resigned from the Leeds Teaching Hospital Trust in Leeds on the 17th July 2014. This is mainly because of the incident that occurred on the 22/04/2014 [sic] where I raised Dignity at Work Concerns. Instead of my complaint being dealt with, I was given a final written warning on the 02/10/2013 which I believe was the opposite of what should have happened. I feel I have not been treated properly from the start of this process as the investigation process, witness statements and other parts of the investigation were flawed. Although I appealed this decision, I was still not content with the outcome and felt that I couldn't carry on working with the people that I raised the issues against. My Dignity at Work concerns raised on the 22/04/2013 were not dealt with until October 2013 which demonstrated how seriously (or lack thereof) the Trust treated this matter. I felt that there was no trust and confidence left between the Trust, myself and the colleagues I worked with. I was pregnant and stressed during this whole process. I was bullied and tormented by a certain member of staff Marilyn Luckaine and I stated to the Trust the amount of on-going and previous issues I had however these concerns were dismissed and disregarded. I received a final written warning instead of coaching and support and the thought of returning to work to suffer this again resulted in me resigning. It is because of the lack of support, acknowledgement and confidence, not to many many other factors that resulted in me resigning.''

  13. At a preliminary hearing it was accepted on the Appellant's behalf that further particularisation was needed. Further and Better Particulars settled by her solicitors were served on 2 April 2015. They can be summarised as follows:

    (1) Paras. 6-24, headed ``Performance Issues'', dealt with the Appellant having had to go through a capability process.

    (2) Paras. 25-29, headed ``Issues with Colleagues'', dealt with her issues principally, though not only, with Ms Luckaine prior to the incident of 22 April 2013. Paras. 30-34 dealt with the incident on 8 April.

    (3) Paras. 35-49 are headed ``Incident on 22 April 2013''. They start with a brief account of the incident itself but they are principally concerned with its aftermath, up to and including the appeal decision and the Appellant's resignation. The pleading is essentially narrative, though some criticism of the Trust's procedure and decisions are clearly implicit.

    (4) Paras. 50-52 are headed ``Constructive Unfair Dismissal'' and are clearly intended to state both why her resignation constituted a dismissal and why it was unfair (the two issues being for most practical purposes the same). They read:

    ``50. The Claimant claims that she was unfairly dismissed in accordance with section 95(1)(c) of the Employment Rights Act 1996.

  14. The Claimant contends that the conduct of the Respondent as portrayed above amounted to a fundamental breach of the implied term of trust and confidence and that she resigned from her employer quickly and in relation to this breach.

  15. Specifically the Claimant avers;

    (a) The Respondent actively looked for faults with the Claimant in order to push her out of the company.

    (b) The Respondent intentionally extended the Claimant's capability procedure in an attempt to try and make the Claimant fail; causing the Claimant a great amount of stress.

    (c) The Respondent...

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