**The appeal hearing was a sham (3.10)**

103. We find the Claimant's allegation that the appeal hearing was a sham to be incorrect. It was not a sham. The Claimant was not bullied by the panel. In fact it was the Claimant and Mr Widders whose language was strident and did not uphold the complaint but did so on the grounds that the supporting evidence was not sufficient to substantiate the allegations of bullying in terms of the definition used by the Respondents. The definition was taken from a respected and respectable source. That we find was a balanced and respectful response to the Claimant's grievance which effectively accepted that there was evidence but not sufficient to substantiate the allegation of bullying according to the definition used. While disappointing to the Claimant we find that, objectively considered, that was not of itself conduct likely to destroy or seriously damage the relationship of trust and confidence between the Respondents and the Claimant. There was no breach of the implied term of trust and confidence and no detriment.

However, in the light of Buckland they held that this conclusion did not rule out a claim based on a breach at stage (ii).

1. Accordingly it is on their conclusions in relation to stage (ii) that their decision depends. We set out their comments in full:

100.1 The Tribunal spent a great deal of time in evidence on this particular issue. The Tribunal made it clear to the parties that it was concerned at the apparent disparity between the evidence given by Ms Dey on the one hand, that "it was a very finely balanced decision whether it was bullying or heavy handed management". Ms Dey and Ms Dodd concluded that it was not bullying on a balance of probabilities, the evidence they considered on balance did not substantiate bullying. Mrs Morgan's letter of July 2008 on the other hand informed the Claimant of the outcome stated that "there was no evidence to substantiate your allegations" and "that no evidence has been found of bullying through the investigation process"

100.2 The Tribunal made clear that it wished to hear submissions on this particular issue which was canvassed extensively both at the hearing and in submissions.

100.3 It is our unanimous judgment that there was, and the Claimant knew there was, substantial evidence of bullying by Mrs Clark. However we find that the language in Mrs Morgan's letter to the Claimant on 25 July 2008 that "there was no evidence to substantiate your allegations" and "that no evidence has been found of bullying through the investigation process" was untrue and the Claimant know it to be untrue. Having regard to the House of Lord's guidance in Malik we find that in these circumstance where there had been substantial evidence of bullying but on the balance of probabilities a conclusion that it was not bullying these statements made on behalf of the Respondents constitute conduct which was likely, objectively considered, to destroy or seriously damage the relationship of trust and confidence between the Claimant and the Respondent.

100.4 We neither heard nor saw any evidence to suggest or support any link causal or otherwise with the Claimant's letter of 19 November 2007.

...

105. The staff meeting called by Mrs Clark in which she said that the investigators had completed their investigation and she had been cleared. This is the same issue we described in relation to Mrs Morgan's letter in paragraph 100 and we make the same finding."

The most important conclusion is at paragraph 100.3. We note that the comments do not address directly the issue in the terms identified in paragraph 100 or issue 3.7 itself. It is implicit that the Tribunal did not accept that the investigation itself was a "sham", as claimed. However, we do not think this precluded the Tribunal from considering a more limited issue relating to the way in which its conclusions were conveyed to Mrs Price.

1. Finally, they found no evidence that Mrs Price had accepted the breach or affirmed the contract. On the contrary, she had made clear "beyond a scintilla of doubt" that she found "Mrs Morgan's suggestion that there was no evidence of bullying" and "Mrs Clark's claim that she had been cleared" to be "utterly outrageous and unacceptable". In conclusion they said:

"115. We find that the Claimant made her position entirely and stridently clear immediately upon receipt of Mrs Morgan's letter of 25 July 2008 that she found its conclusions outrageous and unacceptable. She continued with the grievance with a view to achieving an outcome that recognised what she saw as Mrs Clark's bullying and what she regarded as suitable amends from the Respondents. When these were not forthcoming she resigned.

116. We find that the Claimant's decision to resign was in response to the breach of the implied term of trust and confidence by the Respondents that we have found at paragraphs 100 and 105. That was the reason, the cause of her resignation. The other matters to which she referred in her letter of resignation were peripheral to that fundamental breach. It was sufficiently important to justify her resigning. Per Buckland she did not waive the breach or affirm the contract."

Their unanimous conclusion was that: (i) the Claimant had not been subjected to a detriment contrary to ERA s 47B; (ii) she was not unfairly dismissed as described in s 103A; but (iii) she was unfairly dismissed in terms of ss 94 and 98.

1. The proceedings before us fall into two parts: first, Mrs Price's appeal against the Tribunal's rejection of her protected disclosure case, secondly the school authorities' cross-appeal against their finding of constructive dismissal. We think it more logical to deal with the latter first.

1. On the cross-appeal, Mr Doughty, for the school authorities, submits that the Tribunal's conclusion was "perverse" in the sense explained by Mummery LJ in Yeboah v Crofton **[2002] IRLR 634, para 93:

"a decision which no reasonable tribunal, on a proper appreciation of the evidence and law, would have reached."

On the issue of constructive dismissal he relies on the recent decision of the Court of Appeal in [Tullett Prebon plc v BGC Brokers LP]() [2011] EWCA 131, where Maurice Kay LJ, distinguishing Malik (which had related to the different issues concerning the effect on employees of a corrupt and dishonest business), said:

"The present case is concerned with the specific dynamics between employees. The issue is repudiatory breach in circumstances where the objectively assessed intention of the alleged contract-breaker towards the employees is of paramount importance." (para 27)

Earlier he had adopted the words of Etherton LJ of Eminence Property Developments Ltd v Heaney [2010] EWCA Civ 1168 (at paragraph 61):

"… the legal test is whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract."

1. Against that background his submissions can we think be summarised under six main points:

a. The tribunal was unduly influenced by Mrs Price's personal response to the investigation findings and failed to consider the question objectively.

b. Their emphasis on the apparent disparity between the findings of the investigation, as explained in Ms Dey's evidence, and the way it was reported to Mrs Price in Mrs Morgan's letter, was misplaced. The investigators concluded that whatever had taken place did not amount to "bullying" as opposed to heavy handed management. That conclusion was not disturbed by the Tribunal. It was not erroneous to describe that as "no evidence of bullying". In any event, by the time of the appeal hearing, Mrs Price had seen the investigators' response which left no doubt as to the basis of their conclusions.

c. Their finding (para 100.3) that there was "substantial evidence of bullying" was wholly inconsistent with their acceptance of the conclusions of the later appeal panel that "the supporting evidence was not sufficient to substantiate the allegations of bullying..." (para 103).

d. In any event, the conclusion that the disparity between the findings of the investigation and their communication to Mrs Price was so serious as to amount to a fundamental breach of contract was perverse.

e. Given the rejection by the investigators of the charges of bullying, it was wrong to attach any adverse significance to Mrs Clark's claim at the staff meeting that she had been "cleared".

f. The effective cause of Mrs Price's resignation, as explained in the resignation letter, related to a "litany" of complaints most of which had not been upheld, including allegations of corruption on the part of the investigators. These could not be described as "peripheral".

1. We have not found this an easy case to analyse. The Claimant did not help her cause by the increasing "stridency" shown by her and her husband, to the extent that by the end, as the Tribunal recorded, they had used "abusive language about virtually every individual in the Respondents' organisation connected with the school" (para 107). (That stridency was not, happily, reflected in Mr Widders' restrained presentation of his appeal to us.) The Tribunal's problems were compounded by the form of the "agreed issues", which, as we have already commented, presented a confusing amalgam of incidental factual allegations and major issues. These features must have added significantly to the length of the proceedings. They made it much more difficult for the Tribunal to focus on the central issues in the case, and for us to extract their essential reasoning.

1. We think it useful to start by looking at the overall picture as is it has now emerged. On any view, the arrival of the new headteacher was highly disruptive. Her management style upset "a number of those involved with the school", leading not just to complaints from staff, but the resignation in May 2007 of the two principal governors. Mrs Price's letter in November of that year could not have come as a surprise to the then governors, nor to the new chairman Mr Richardson. It detailed complaints, not just about her own treatment, but over much wider issues affecting many of staff and the running of the school as a whole.

1. The investigation eventually carried out on behalf of the education authority, over six months later, showed that Mrs Clark's behaviour was open to serious criticism, and Mrs Price was not a "lone voice" in complaining about it. Unfortunately the findings and conclusions have to be pieced together from a number of different sources, not all consistent, quoted at different places. The following extracts appear to give a fair summary. The investigators found that Mrs Clark's behaviour had been "strong" and on occasions "aggressive and insensitive to the feelings of staff" (para 58), but that she herself "(did) not recognise that her style and behaviour are anything but reasonable". Although their "finely balanced" conclusion, applying the Andrea Adams definition, was that Mrs Clark's conduct did not amount to "bullying" (para 56-7), they were "very critical" of her management style, and made a number of recommendations to address this (para 62).

1. As to the effects of Mrs Clark's behaviour on the staff, the Tribunal recorded that of the thirteen staff interviewed, nine had referred to members of staff "being reduced to tears by Mrs Clark"; six referred to having been bullied themselves or having seen bullying by Mrs Clark (para 54). Although in her later witness statement Ms Dey mentioned some contradictory evidence (para 57), her response to the appeal panel acknowledged that there had been "significant personal problems amongst a large proportion of the staff" and that "many staff had been seen in tears..." (para 62, emphasis added). (The following comment that "in many cases this could not be directly attributable to bullying behaviour by the Headteacher" is ambiguous. It could be saying, either that it was not attributable to the Headteacher at all, or simply that her behaviour, while having such effects, did not amount to "bullying" as they defined it. We assume the latter is the correct reading, since there was no suggestion that anyone else had been responsible for reducing staff to tears.)

1. Whether or not the conduct amounted to "bullying" in the technical sense, the above summary reveals serious problems in the school which had begun well before Mrs Price's letter, and which had needed to be addressed. Given this background, it is easy to understand Mrs Price's frustration at the failure of the school authorities to respond to her letter for so long. It was not until June the following year, six months later, that Mr Richardson had put himself in a position to make a substantive response.

1. We must accept for the purposes of this appeal that the Tribunal absolved him of blame for the delay, taking account of the limitations of time imposed by his "important and demanding job", and the unwillingness of Mrs Price to meet him outside working hours. We feel bound to comment, since it may be of relevance in other cases, that we find this view a little surprising. The management style of the headteacher was an issue affecting the school as a whole, not just Mrs Price, and one which needed to be addressed. The Tribunal's criticisms of Mrs Price's own attitude seem to overlook this point, and also take little account of the extreme personal pressures she was under in early 2008 (as they had accepted: para 35). It is significant that, when they did eventually meet, Mr Richardson offered her an "unreserved apology" for the delay (para 29). This suggests that he at least understood that those who take on important duties such as this, even on a voluntary basis in otherwise busy lives, must be prepared to find time to intervene personally when necessary, or ensure that others are available to fill the gap.

1. Similarly, we have to accept that the Tribunal did not uphold Mrs Price's criticisms of his eventual response, when they did meet. Again, we do so with some reservations. For example, one of her complaints was that, by the time of that meeting in late March, his attitude had changed completely from the previous year, and that he now described her as a "lone voice". The Tribunal did not make a specific finding on what was said at this meeting (para 96), but they accepted that at some stage (unspecified) he "recognised that she was not a lone voice" and that her grievance was a "collective one" (para 104). The last comment stands oddly with the terms of his final letter to Mrs Price (quoted by the Tribunal at para 48). There he referred to the parts of her letter concerning "others inside and outside of the school", which highlighted "a general dissatisfaction with Mrs Clark's personality and management style", but which he was able to dismiss without further comment, because "they do not support a grievance of bullying by you". The apparent inference is that, even then, he was dealing with it as an individual grievance, not as a problem affecting the school as a whole.

1. Although we cannot go behind the Tribunal's arguably generous view of Mr Richardson's handling of the case, that does not mean that we must ignore the effect of the delay from when the problem first arose. It is relevant, both for the light it shows on the ability of the school authorities to respond effectively to a crisis affecting the school as a whole, and also to the assessment of the reasonableness of Mrs Price's reaction to the eventual decision. The delay made it all the more important that the response when it came was convincing and effective. This is not to fall into the trap of subjectivism, as Mr Doughty implies, but rather to look at the critical findings in their full factual context, as known to both parties. In this case that included Mrs Price's own very difficult personal circumstances, well known to the school authorities. The likely reaction of a "reasonable person in the position of the innocent party" (adopting the words Etherton LJ in Eminence Property **– above) does not have to be judged in a vacuum.

1. The Tribunal's conclusions on the effect of Mrs Morgan's letter could perhaps have been expressed more fully. But the substance is clear. In important respects Mrs Price had been vindicated. Even if the investigators decided that Mrs Clark's conduct had not crossed the "fine line" between strong management and bullying, their findings gave ample support for her concerns for the school. The investigation had found serious problems, and deep unhappiness among many of the staff, unaddressed for more than a year since the complaints first arose.

1. Against this background, the Tribunal were entitled in our view to regard Mrs Morgan's letter as seriously misleading. The statement that there was "no evidence" to substantiate her allegations was untrue. There was plenty of evidence to support her central allegation that there were serious problems within the school, and strong support also for her criticisms of Mrs Clark's management style. Although the Tribunal did not mention this, it seems surprising also that her complaint about bullying of other staff was dismissed out of hand, because she had not given "names and full details" in her letter. There was no hint in Mrs Morgan's letter that her complaints had been supported by nine members of staff, interviewed during the investigation and whose names were presumably known to Ms Dey. Nor was there any hint that the conclusion had turned, not on the rejection of much of that evidence, but on a "finely-balanced" judgment as to whether the conduct described met the definition of "bullying".

1. The Tribunal were entitled also to hold that the effect of this letter was compounded by Mrs Clark's claim, at the staff meeting, that she had been "fully cleared". If that was her view of the matter, it suggests that even at that stage she was unwilling to acknowledge the need for change. Alternatively, it suggests a remarkable failure of communication in respect of a report which its authors had intended to be "very critical" of her management style. The Tribunal were entitled to regard it as further evidence of a serious breakdown in the process, calculated to destroy Mrs Price's trust and confidence in management's willingness or ability to address the problem.

1. Mr Doughty says that a finding of fundamental breach cannot reasonably be based on what was at worst a matter of wording: a difference between "no evidence" and "some evidence, but not of conduct sufficiently serious to amount to bullying". We accept that in some contexts that might be right. However, we think that on the facts of this case the Tribunal were entitled to find that the reference to "no evidence" was a serious distortion of the results of the inquiry.

1. Mr Doughty also relies on the apparent contradiction between the Tribunal's finding that there was "substantial evidence of bullying" known to the Claimant, and their acceptance of the appeal panel's finding that the evidence was "not sufficient to substantiate the allegations of bullying". We agree that this could have been better expressed. However, as we understand it, the Tribunal considered that the latter statement, unlike the former, at least acknowledged that the complaint had some substance as a matter of evidence, and that, though ultimately adverse, it represented a more balanced assessment of the case. Whether that was a justifiable view of the panel proceedings is not something we need to address, since Mr Doughty does not challenge the Tribunal's conclusion that the appeal process, however well conducted, did not cure the preceding breach. Finally, although Mrs Price's resignation letter included a number of matters on which she had failed, the Tribunal were entitled to find that the central issue on which she had succeeded was sufficiently reflected in her letter to support her case.

1. Overall, we are not persuaded that such criticisms as can be made of the Tribunal's reasoning are sufficient to undermine their ultimate conclusion, or render it "perverse". As we have said, it seems to us that if anything the Tribunal may have been over-generous to the school in their assessment of some aspects of the case.

1. For these reasons, we would reject the cross-appeal and uphold the Tribunal's decision on that aspect.

1. We can deal with this issue much more shortly. Two provisions of the Employment Rights Act 1996 are directly relevant:

"S.47B(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

S.103A An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."

A "protected disclosure" (defined by ss 43A and 43B) includes disclosure of information tending to show, for example, that a person is in breach of a legal obligation, or that someone's health or safety is at risk. (It is not in dispute that the letter of 17 November 2007 was a protected disclosure within that definition.) The main practical significance of bringing the case within section 103A, is that the limit which would otherwise apply to compensation for unfair dismissal does not apply (s 124).

1. Mr Widders' argument, as we understand it, is that the whole process which led eventually to his wife's resignation arose from the protected disclosure. Her forced resignation, as the Tribunal accepted, was a justified response to the fundamental breach represented by the governors' letter notifying her of the results of the investigation. That was "detriment" caused by their "action" in sending the letter, which followed from, and was therefore "on the ground of", the protected disclosure. Similarly all the various setbacks suffered by her during that process were themselves "detriments" attributable to the same cause.

1. This approach in our view reflects a misconception of the statutory scheme. It is about the protection of "whistle-blowers". The purpose is to ensure that employees do not suffer simply because they have had the courage to speak up about problems affecting their workplace. Thus it is the "making" of the protected disclosure which is the focus of attention, and which must be the principal reason for the dismissal, or for the other detrimental action or inaction. In this case, by contrast, Mrs Price's forced resignation came about, not because of the making of her complaint as such, but because of the inadequacy in one important respect of the authorities' response to it.

1. Mr Widders relies on the decision of this tribunal in [Fecitt v NHS Manchester]()* [2010] UKEAT/0150/10 2311; [2011] ICR 476.* In that case, Mrs Fecitt and the two other nurses at a medical centre complained about one of the other nurses who had exaggerated his qualifications. These were held to be protected disclosures. A dispute developed over the way this was handled by the management. Subsequently, as the tribunal found, the "dysfunctional situation" following the protected disclosures led to them suffering "significant detriments" including the removal of two of them from the centre and the decision to give no work to the other (para 17). After some discussion of authorities on the principles of causation, the tribunal had concluded that the employer's decisions were not "on the ground that" they had made protected disclosures, but in order to resolve the problems at the centre. The claimants appeal was allowed: first, because the tribunal had failed to consider the vicarious liability of the employers for various individual acts of other employees which had caused distress to the complainants (para 22, 63); and secondly because they erred in their approach to causation and the burden of proof (para 64-66).

1. Mr Widders relies on the latter part of the judgment, and in particular on the EAT's formulation of the correct approach:

"... once a detriment has been shown to have been suffered following a protected act the employer's liability under section 48(2) is to show the ground on which any act or deliberate failure to act was done and that the protected act played no more than a trivial part in the application of the detriment... Put another way, the employer is required to prove on the balance of probabilities that the treatment was in no sense whatever on the ground of the protected act." (para 64)

In this case, he argues, the forced resignation, and the other incidental detriments, clearly followed the protected disclosure, and accordingly it is for the school authorities to show that they were "in no sense whatever" on the ground of the disclosure. This, he submits, they have failed to do.

1. We were informed by Mr Doughty that Fecitt is under appeal. He also invited us to look at it in the context of the earlier judgment of the Court of Appeal in Kuzel v Roche Products Ltd [2008] EWCA Civ 380, **[2008] IRLR 530, another protected disclosure case. Mummery LJ commented on the risks in such cases of getting too "worked up" about issues of burden of proof:

"The danger is that in cases like this something so complicated will emerge that the sound exercise of common sense by tribunals will be inhibited." (para 46)

Issues of burden of proof under section 103A should be looked at in the overall context of unfair dismissal law in Part X of the 1996 Act, rather than assimilated to discrimination law, which gave rise to different considerations because "discrimination is so difficult to prove". After some "observations" by way of guidance to tribunals, he concluded:

"58. Having heard the evidence of both sides relating to the reason for dismissal it will then be for the ET to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence."

1. We find it unnecessary to form a view whether all the statements in Fecitt are consistent with Kuzel**. We do not consider in any event that the former supports Mr Widders' argument. The facts were very different. The complainants had suffered identified "detriments" (the move from the centre, and the loss of work) the grounds of which were difficult to understand unless related to their having made the original complaints. If the employer claimed that there was another legitimate reason, it was fair that the burden should be on him to establish what it was. In this case, on the Tribunal's findings, the reason for the forced dismissal was, not the making of the protected disclosure, but its handling by the school authorities. The same applied to the other alleged "detriments", so far as they were not rejected (as most were) on the evidence.

1. Accordingly, we dismiss the appeal, and uphold the Tribunal's decision on this issue also.

1. For these reasons we dismiss both appeal and cross-appeal and affirm the Tribunal's order.

1. We make one further observation by way of postscript. In the context of the current debate about the future of legal aid, this case seems to us to provide a vivid illustration of the difficulties faced by litigants in person, and the importance of competent legal advice at the right stage. We do not know whether Mr Widders and Mrs Price had access to specialist legal advice at any stage. However, we find it difficult to believe that an experienced legal representative would have allowed the case to develop as it did. It seems most unfortunate that the case turned into such a prolonged battle before the Tribunal, which must have been painful for all those involved, and expensive in time and money. Many of their allegations were peripheral and others were exaggerated; the allegations of corruption were unsustainable. The emphasis on a long list of individual "detriments" distracted attention from the issues of substance. All these elements must have added considerably to the length of the case, and to the difficulty of the Tribunal in finding the wood for the trees. Provision of basic legal help to unrepresented litigants is important in the interests of the efficiency and economy of the justice system for the public, as much for its accessibility to the individual parties.

Annex – Agreed list of issues (see paras 22-4)

1. The Claimant brings complaints of unfair dismissal and detriment (i) for having made a protected interest disclosure contrary to section 43 and 47B of the Employment Rights Act 1996 and (ii) on the attention of her employer by reasonable means, circumstances connected with her work which she reasonably believed were harmful or potentially harmful to health or safety contrary to section 44 of that Act.

1. The protected interest disclosure relied on is that report sent by the Claimant to the Chair of Governors of Wood Street School and Four S (an agent of the First Respondent, acting as personnel consultants) on 19 November 2007.

1. The Claimant complains that as a result of that disclosure she was subjected to detriment by the Head and by the Governing Body of the school. The particular detriments complained of are that:-

3.1 The Headteacher's attitude towards her changed in particular:-

(i) In or about February 2008 the Headteacher shouted at the Claimant after she had mistakenly opened a letter headed Confidential.

(ii) On 28 April the Headteacher slammed a letter on to the Claimant's desk saying:

"I read your letter and will deal with it in due course"

3.2 On 27 March Mr Richardson the Chair of Governors told Mrs Price that she had let herself down and was "a lone voice".

3.3 In April 2008 Mr Richardson told the Claimant that she was "a lone voice" and it was just "a clash of personalities".

3.4 Four S failed to take any action despite having received information from an anti bullying organisation, Expolink as to the Claimant's complaints.

3.5 In April 2008 Mr Richardson said to a colleague, Mrs Partridge, in reference to the death of the Claimant's sister that this will "hopefully bring closure to her complaint".

3.6 The Respondent failed to follow any procedures and ignored the Claimant's complaint until July 2008.

3.7 In July 2008 the investigation that was carried out by the Respondent into the Claimant's complaints was a sham and her complaints were dismissed.

3.8 The investigators fabricated an allegation that Mrs Price was "aggressive and difficult" and that her continuing complaints could be perceived as malicious.

3.9 The Headteacher ignored the Claimant's request to consider an increase in the Claimant's pay.

3.10 The Appeal Hearing held in January 2009 was a sham, the Claimant was bullied by the panel and her complaint was dismissed.

1. The issues are did the Claimant make a protected disclosure and, if so did the Claimant suffer detriment as a result of having made the protected disclosure?

1. The Claimant also complains of unfair constructive dismissal. She relies on the matters listed above as amounting to a fundamental breach of the employer's duty of trust and confidence towards her and she resigned in response.

1. The issues are did the Respondent breach its duty of trust and confidence during the period November 2007 until the Claimant's resignation? Did the Claimant resign in response and without delay which would indicate having waived that breach? If the Claimant was dismissed under section 95(1)(c) was that dismissal fair or unfair?

1. The Claimant also brings a complaint under section 44 of the Employment Rights Act 1996 namely that the above detriments were done on the ground that the Claimant brought to the attention of her employer by reasonable means, circumstances connected with her work which she reasonably believed were harmful or potentially harmful to health or safety.

1. It is an issue whether the Claimant has the right to bring a complaint under section 44 of the Employment Rights Act 1996 and whether any actions amounting to a detriment were done on that ground.