In the Tribunal’s words: references to the Trustees of AVOW
These are extracts from the Tribunal’s written reasons, with original paragraph numbers. They are the sections of the Tribunal’s judgment which contain references to AVOW’s Trustees. At the time of writing (October 2011), six of the Trustees who were directly involved in my case are still in place, as well as others who were on the Trustee Board at the time. Two Trustees (one directly involved, one on the Board) have recently resigned.
The Tribunal’s findings:
1. The claimant, Genevieve Bove (known as Genny Bove), claims disability discrimination and unfair (constructive) dismissal. The respondent is the Association of Voluntary Organisations in Wrexham (known by its acronym AVOW); it is a charity and a company limited by guarantee that is run by a combination of unpaid trustees and salaried officers. Its chief officer since June 2000 has been Mr John Gallanders. The case arises from a relatively short period of time – seven months – during which the claimant worked for the respondent.
13. The respondent supplied statements for nine witnesses: John Gallanders (chief officer), Rachel Ross (former deputy chief officer) and seven current or former trustees: Margaret Bryden, Moira Jones, Brian Neale, Gail Thomas, John Davies, Peter Webber and Mervyn Rosenberg. The respondent did not call Peter Webber in the end. For reasons set out later in this judgment, we rejected an application to adjourn the Hearing part-heard so that Dr Rosenberg could give oral evidence.
14. The prolixity of the claimant’s witness statement was, however, as nothing compared to the brevity of the statements supplied on behalf of the respondent. They were singularly unhelpful. None exceeded four short sentences in length; most did not exceed two. None were ready by the directed date for exchange (10 January 2011); indeed, one of the respondent’s principal witnesses, its chair of trustees at the time, told us he had no idea that the claimant had even brought Tribunal proceedings until 17 January 2011. The respondent’s statements were limited to an assertion that certain minutes of meetings were true and accurate, accompanied by a request that we look at specific pages of the bundle but with no attempt to provide a factual context or commentary. They told us almost nothing about the position of the respondent’s witnesses on the matters in dispute. They barely complied with the letter, let alone the spirit, of the requirement to disclose evidence in chief by the provision of statements. We found this particularly surprising given that the respondent has been professionally represented throughout the matter. The effect was that the claimant attended the Hearing having given (very) full disclosure of her own evidence in chief but knowing almost nothing about the evidence in chief of the respondent’s witnesses beyond what could be inferred from the documentation.
Third preliminary matter: admissibility of allegedly privileged documents
Circumstances of the disclosure and the later assertion of privilege
27. There is no factual dispute over the circumstances in which the documents in bundle C1 came into the claimant’s possession. The respondent sent them to her as part of its disclosure on two occasions, in September 2008 and May 2009, in response to subject access requests she had made under the Data Protection Act 1998. Mr Gallanders, the respondent’s chief officer, told us that Rachel Ross (his deputy) collated the first disclosure in September 2008 while he personally collated the second disclosure in May 2009 with the assistance of Gail Thomas (a trustee).
28. The first disclosure included the document at C1(1). The claimant acted promptly in bringing her possession of it to the respondent’s attention. She handed a copy of it to two trustees, Gail Thomas and Brian Neale, at a meeting on 16 October 2008. Ms Thomas then gave it to Mr Gallanders. Despite knowing the claimant was in possession of it, however, Mr Gallanders did not ask for it back.
29. Having disclosed such material to the claimant once, the respondent did it again with the documents at pages C1(2) to C1(10). They were sent under cover of a letter dated 13 May 2009 (C2, page 9). On 16 May 2009, the claimant wrote to the respondent to contend that it had waived privilege and, among other things, asked for full disclosure of all correspondence with its legal advisers (C2, page 10). Once again, the respondent did not ask for the return of these documents. Instead, on 29 May 2009, Mr Gallanders wrote to the claimant in these terms: “any additional items that have not been disclosed are being retained under professional privilege” (C2, page 12). He did not assert privilege over the documents that had already been disclosed. In another letter dated 23 June 2009, he again passed up the opportunity to assert privilege over the documents already disclosed (C2, page 15).
30. Ordinarily, we would have much sympathy for the reluctance of a small charity to incur the legal costs associated with an application to restrain a claimant from using potentially privileged documents or seeking their “delivery up”. However, it is clear that the trustees and managers of the respondent simply did not apply their minds to the question of seeking their return. Mr Gallanders did not, for example, write to the claimant to ask for the documents back; we emphasise that he simply asserted privilege over documents that the claimant had not yet seen. The first occasion on which the respondent asserted privilege over the documents already disclosed to the claimant was at the CMD before Employment Judge Harris on 13 October 2009: this was, by now, about 13 months after the first disclosure and five months after the second disclosure. In the meantime, some of these documents had become central to the developing factual narrative of the case: for example, negative comments made by Mr Gallanders about the claimant in the document at C1(1) had become the subject of a further internal grievance by her and the respondent’s alleged failure to deal with that grievance turned into one of her stated reasons for resigning (pages 575 to 582).
Fourth preliminary matter: application to admit further documents
45. At the start of the third day, Ms Bibi sought the Tribunal’s permission to adduce two further documents in support of the respondent’s case. The first was a document dated 1 April 2008 that the respondent had submitted to Wrexham County Borough Council as part of its bid to run the NEWCIS project. The second was a letter sent by the Council to Mr Gallanders dated 26 February 2009 relating to the requirement for certain members of staff to be CRB-checked. Both were said to be relevant to the respondent’s reasons for asking the claimant to provide an enhanced CRB disclosure. Regrettably, Ms Bibi had not shown these documents in advance to the claimant. We adjourned to allow the claimant an opportunity to read them.
47. We noted, however, that the claimant had been seeking these self same documents since her meeting with the trustees on 21 January 2009. Employment Judge Harris had ordered full disclosure to take place by 22 January 2010. Yet the respondent only disclosed them on 9 March 2011. The respondent’s explanation for their late disclosure – namely that the respondent’s duty to disclose them had only arisen as a result of our ruling the previous day on the admissibility of the C1 bundle – was exceptionally weak. There was nothing in the two documents that was remotely privileged. They ought to have been disclosed irrespective of our ruling on the privilege matter. We informed the respondent that, while allowing it to rely on the documents, their late disclosure was unreasonable.
Brief period of employment by the respondent in July 2007
77. Ms Ross wished to treat the claimant’s resignation letter as a formal grievance (page 247). This was followed by protracted correspondence, the thrust of which was that the claimant did not wish to pursue a grievance or an Employment Tribunal claim but wanted the respondent to “understand its responsibilities under the Disability Discrimination Act”. Eventually, Mr Peter Webber (then chair of trustees) said that he had “closed the matter” in view of the claimant’s desire not to pursue a grievance (page 262). We have included the incident in our judgment by way of background; it tells us quite a bit about the characters of both the claimant and Mr Gallanders and offers an explanation for why, as we shall see, Mr Gallanders took against the claimant at an early stage.
The TUPE grievance: first meeting
92. On 3 September 2008, the claimant attended a grievance meeting about the TUPE issue with Dr Meryvn Rosenberg and Ms Moira Jones, both trustees. The claimant was aggrieved at the contradictory information she had received about whether she would transfer to the respondent and she wanted to know, in essence, why the respondent had been reluctant to accept her in the TUPE transfer but not her colleagues. The trustees said that they would get back to her with a response “within a few days”.
The TUPE grievance: the response and the claimant’s appeal
102. The TUPE grievance continued in parallel. By letter dated 15 September 2008, Ms Ross responded to the TUPE grievance. She apologised to the claimant for the confusion surrounding the transfer of her employment, explaining that the respondent was acting on legal advice received at the time (page 320). She added: “you have transferred on all your terms and conditions and we do not consider you have suffered a detriment as a result of the initial confusion”. Oddly, neither Dr Rosenberg nor Ms Jones, who heard the claimant’s TUPE grievance, featured in the letter from Ms Ross. The grievance decision, for all intents and purposes, was taken by Ms Ross.
103. In a letter to Mr John Davies (chair of trustees) dated 16 September 2008, the claimant appealed Ms Ross’ decision (pages 321 to 322). She did so because, in her view, it did not deal with all the concerns she had raised; she wanted “to understand why things happened as they did” rather than receive a “blanket apology”. She also confirmed that she was still awaiting a reply about her concerns with the lighting after Ms Ross had confirmed that she would be “look into the issue”.
The CRB check (and second example of bad faith)
109. The respondent’s position at the Hearing was that it was required by Wrexham Borough Council under its bid documentation to make sure that all staff underwent enhanced CRB disclosure. This was not correct: the documentation contained in the “AD” bundle showed clearly that, while the Council expected the employees of agencies with whom it worked to undergo CRB checks where appropriate, it was ultimately the responsibility of the chief officer (in this case, Mr Gallanders) to define which jobs required CRB disclosure and at which level (standard or enhanced). On this point, the respondent’s tender said no more than that staff would receive “appropriate” CRB checks. It did not require disclosure for all employees and it certainly did not require enhanced disclosure for a person doing the claimant’s job.
110. We have introduced this issue at this stage because the true explanation for the respondent’s actions is revealed by an email that Mr Gallanders sent his adviser at RBS Mentor, Ms Egan, on 19 September 2008 (and copied to Ms Ross). The email was at page C1(3) of the C1 bundle; this, it may be recalled, was a document we found not to be covered by litigation privilege (or, alternatively, a document for which any such privilege had been waived). In this email, Mr Gallanders wrote (with our emphasis):
Following on from your discussion re [the claimant] and access to her medical records – if her issue about migraines – she says it is lighting but there has never been any indication that this could actually be to do with the use of a computer. We have a policy here that anyone working on a computer is offered eye testing. If we are trying to now be awkward to her by asking for the medical reports can we actually insist on her going for a VDU workplace eye test whilst she is still on the sick.
We would also require a CRB for the position she is supposed to be doing. – are we ok to start this process of getting the correct id etc from her. It might be a long shot but there may be something that shows up in this which may indicate she is unstable for the job.
111. When questioned by the claimant, Mr Gallanders confirmed that the “we” in this email was not a reference to him personally but to the respondent organisation as a whole. He also accepted that, as chief officer, he wrote the email with the inferred authority of all the trustees. As to the content of the email, his evidence was, again, unsatisfactory. He said that the phrase “if we are trying now to be awkward” in fact meant that he was trying not to be awkward. He said that the request for a CRB check was simply to check whether the claimant was “unsuitable” for the job and that his computer had likely changed the word to “unstable” through the spell check mechanism.
The TUPE grievance: further letter (and third example of bad faith)
114. On 26 September 2008, a letter was sent to the claimant in the name of John Davies; he had now taken over as chair of the respondent’s board of trustees (pages 334 to 336). The ostensible purpose of the letter was to respond to her appeal against the rejection of her TUPE grievance. There had been no further appeal meeting as such; Mr Davies wrote that he was answering questions that Ms Ross had not answered in her earlier letter. He then gave the claimant an opportunity to request an appeal hearing if she chose. It was certainly a fuller response and Mr Davies repeated the apology Ms Ross had given, although he added: “we are at a loss to [know] what you are now looking for”. In the same letter, he sought permission to contact the claimant’s GP in order to obtain medical information relevant to what was now being described as “the DDA grievance”.
115. However, there was a major problem with this letter. Mr Davies had not written it. He had not even seen it. He told us so himself at the Hearing and we accept his evidence. He explained that the first time he had seen this letter was when it was shown to him on 17 January 2011. This was when he learned for the first time that the claimant had brought Tribunal proceedings. He was asked to sign a witness statement referring to this letter and he refused, signing an amended version instead. The true author of the letter is revealed by the signature it bears: Mr Gallanders.
116. We regret to say that this demonstrates the extent to which Mr Gallanders was manipulating the organisation of which he was the chief officer. The role of the trustees of a charity is to take ultimate responsibility for its management and administration. The respondent was also incorporated (as a company limited by guarantee) and so, presumably, its trustees held office as directors and had fiduciary duties to the respondent. A chair of trustees such as Mr Davies would have great authority to speak on its behalf. The members of the Tribunal, who have all had personal experience as trustees of charitable organisations, think it was reprehensible for Mr Gallanders (who was not himself a trustee) to write a letter in Mr Davies’ name, without his consent, giving the deliberate impression that the chair of trustees was “at a loss” to know what the claimant was looking for. It was a further act of bad faith on his part and reflected his desire that the claimant should not work for the respondent. It was also an abuse of his position as chief officer.
117. In a reply dated 28 September 2008, addressed to both Mr Davies and Mr Gallanders, the claimant pointed out that she had already exercised her right to an appeal against the rejection of her TUPE grievance and could not understand why she was being offered a further choice about whether she wished to appeal (pages 337 to 338). She sought clarity over whether it was Mr Davies or Mr Gallanders who was communicating with her; she did not herself learn until the Tribunal Hearing that Mr Davies had no knowledge at the time of the letter sent in his name. She also pointed out that the correspondence thus far had failed to deal with her complaint about the lack of information and consultation about the TUPE transfer. (This was the letter where the claimant mentioned for the first time the possibility of Tribunal proceedings, to which we referred above in the context of the respondent’s assertion of privilege.)
118. The bundle contained two undated letters described as having been sent “jointly on behalf” of Mr Gallanders and Mr Davies (pages 339 and 345). Mr Davies told us that he had been shown neither the claimant’s letter addressed to him nor the further letters also sent in his name. The second of these letters, sent on 1 October 2008, asked the claimant to complete an enhanced CRB disclosure application form.
The DDA grievance: first meeting (and fourth example of bad faith)
120. There is a document in the bundle bearing the print date of 27 April 2009 but which the parties agree was created on 1 October 2008. It is a briefing note from Mr Gallanders to Ms Barbara Roxburgh and Mr Ken Jones, two further trustees selected to hear the claimant’s DDA grievance on the respondent’s premises in a week’s time (pages 349 to 350). The claimant had not (at this stage) brought a grievance directly against Mr Gallanders, so there was nothing wrong in principle with his preparation of a briefing note to Ms Roxburgh and Mr Jones.
122. Mr Gallanders’ next step was to set up a little experiment: without the claimant’s consent, he decided to use the forthcoming DDA grievance meeting as a test of how she would react to the “daylight” tubes. In the fourth paragraph of his briefing note to Ms Roxburgh and Mr Jones, he wrote:
Can I suggest that the meeting is conduced [sic] in the Carers room with Barbara and Ken sitting behind the table, which is located in the area where the fluorescent lights have been turned off? This will mean that [the claimant] is facing the wall, which is likely to be her working space. This is to give her adequate time to actually ‘experience’ the adjusted lighting in the room. If she requests that the meeting is stopped due to the lighting she should be asked ‘How long will it be before she feels she can resume?’ if she cannot resume could you clarify with her what additional information she would like to provide before the meeting is terminated. (This will be a vital bit of information for us to log precisely what time the meeting started and what time it ended as we are aware that she does go into various meetings which are lit only be [sic] fluorescent lighting).
123. The note ended with a specific request to a colleague “to vacate the office” and for Darren Tomkins, another employee, “to move the tables and chairs to arrange as appropriate”. We should also point out that the carers’ room had no external window; its only window was in the door leading to the internal corridor.
126. The DDA grievance meeting took place on 7 October 2008. The claimant was accompanied by Ms Helen Webster. The claimant took minutes of the meeting (pages 365 to 367) as did the trustees (pages 368 to 374). The claimant subsequently amended the trustees’ minutes and we accept that the amended version is the more accurate reflection of what was discussed.
127. The minutes record that, “[o]n entering the office, it became apparent that the only available lighting was the overhead fluorescent lights which [the claimant] had already made clear were problematic for her and which were, in fact, the subject of this grievance meeting” (page 368). We accept the claimant’s evidence, corroborated by Ms Webster, that she asked Ms Roxburgh and Mr Jones if there was another meeting room available with different lighting and was told that there was none. We also accept her evidence that she then explained that she had brought some desk lamps with her and could plug these in so that the meeting could go ahead with the fluorescent lights switched off. Finally, we accept her evidence that Ms Roxburgh and Mr Jones then told her, without checking, that another room was available after all. They then moved to an adjacent meeting room with the lights turned off. Neither Ms Roxburgh nor Mr Jones attended the Tribunal to give evidence, but we consider that the likeliest explanation for their initial reluctance to change the lighting environment for the meeting was that they were seeking to comply with Mr Gallanders’ instructions.
128. The meeting duly went ahead and there was a full discussion of the claimant’s concerns. The minutes conclude with the following remark from Mr Jones (page 374):
Ken Jones concluded that daylight bulbs still seemed unhelpful to [the claimant], and the use of ordinary light fittings with incandescent bulbs were in her opinion the solution to the problem. Ken stated that, effectively, although AVOW had made efforts, obviously this still does not meet with what [the claimant] needs to do the job.
The DDA grievance: the response and the claimant’s appeal
131. On 14 October 2008, the claimant received a response to her DDA grievance (pages 381 to 382). Once again, it is noteworthy that the letter did not bear the name of the two trustees who ostensibly heard her grievance. It was written and signed by Ms Ross in the first person. She had not even been at the grievance meeting. It further supports our interpretation that Mr Gallanders and Ms Ross were usurping the role of the trustees. It is also noteworthy that the letter was composed before the respondent had heard back from Dr Willis.
134. Ms Ross told us that she and Mr Gallanders would have looked at this letter together before sending it. She could not recall whether it had been shown to the trustees who had heard the grievance, but she accepted that they would not have written it. When asked by the Tribunal why she had written such a letter when she had not been present at the grievance meeting, she replied “I honestly don’t know”. She accepted that she did not have the authority to make the decision set out in the letter and thought it likely that Mr Gallanders would have liaised with the trustees and the respondent’s legal advisers before it was sent.
The TUPE grievance: appeal hearing (and claimant’s disclosure)
138. On 16 October 2008, the claimant attended an appeal meeting in relation to her TUPE grievance. Her colleague Ms Webster again accompanied her. She brought a prepared statement (pages 386 to 388): her focus remained on the lack of information and consultation. The trustees selected to hear her appeal were Ms Gail Thomas and Mr Brian Neale. The respondent produced minutes of this meeting (pages 393 to 394) and the claimant produced amended minutes (C2, pages 2 to 5).
139. When the claimant arrived at the respondent’s office, the meeting was due to be held in Mr Gallanders’ room. When she entered his room, the blinds were closed and the fluorescent lights were on; the claimant had to request that the blinds be opened and the lights turned off. Although both Ms Thomas and Mr Neale gave evidence to the Tribunal, the claimant did not pursue in cross-examination her contention that this had been done deliberately.
140. The more important point arising from this meeting is that the claimant asked the respondent’s minute-taker (Ms Kate Davies) to leave the room and then presented Ms Thomas and Mr Neale with a copy of the C1(1) document. We accept the claimant’s evidence, corroborated by Ms Webster, that she explained to Ms Thomas and Ms Neale that this document made clear that, all along, Mr Gallanders had never wanted her to work for the respondent. We accept that she told them that she had only felt strong enough to show them the document after discussing it first with her GP and counsellor. The claimant told us that Ms Thomas replied that all personal information had been “stripped” from the applications and that it was wrong for Mr Gallanders to say that the claimant would not have been offered an interview.
141. Ms Thomas and Mr Neale also gave evidence about this meeting. Ms Thomas confirmed that the claimant showed them the C1(1) document and agreed that she might have made a comment about the recruitment process. She said she was taken aback by the document and gave it to Ms Ross. She also told us, although she could not give specifics, that she expressed her concern about the document directly to Mr Gallanders. We accept her evidence. Mr Neale’s own evidence did not take the issue much further: he could not directly recall the C1(1) document.
142. On 21 October 2008, the claimant wrote directly to Ms Thomas and Mr Neale (page 399). On this occasion, she stated explicitly that, in having provided them with a copy of the C1(1) document, she was making a disclosure under the respondent’s whistleblowing policy. She stated that the disclosure amounted to either “unethical conduct”, “improper conduct” or conduct that fell “below established standards or practice” (as defined by that policy) on the part of Mr Gallanders.
143. Two days later, Mr Gallanders wrote to the claimant withdrawing the whistleblowing policy with immediate effect (pages 410 to 411). He stated that he was doing so in order to seek clarification on the points she had made. It was in direct response to her disclosure. He also wrote the following:
In the meantime we will continue to provide an open environment were [sic] if staff have any problems there is a structure in which they can report issues. The initial stage would be to report issues to their respective line manager or direct to the Chief Officer. If there were an issue with the Chief Officer a staff member would be able to approach the Chairman or any of the trustees. Staff members are encouraged to raise issues of concern at an early stage either informally or more formal manner [with] any of the senior Management or Trustees. In both instances the disclosure of any information would be confidential and only discussed with the other with the agreement of the staff member.
The TUPE grievance: respondent’s rejection of appeal
144. On 22 October 2008, the claimant received a letter dismissing her appeal against the rejection of her TUPE grievance (pages 401 to 402). Neither Ms Thomas nor Mr Neale wrote the letter; indeed, in their evidence to us, they confirmed that they had not seen it at the time. Mr Neale said that the first time he had seen it was at the Tribunal Hearing.
145. Following a pattern that had by now become well established, the letter was in fact from Mr Gallanders. He wrote it in the first person (e.g. “I do not find in your favour”) even though he had not been present at the appeal. Mr Gallanders was not simply manipulating the body of trustees to achieve the outcome he wanted, he was usurping their role by reaching their decisions for them.
146. In his letter, Mr Gallanders once again explained that the confusion over the TUPE transfer arose from an error on the respondent’s part; an error it had since rectified and for which it had also apologised. However, when questioned by the Tribunal, Mr Gallanders accepted that the respondent’s approach to the claimant’s TUPE grievance was incomplete. Throughout, he had focused on the confusion over whether she should transfer under TUPE or not. This neglected an important part of her grievance, which was why she had not been properly consulted even after the respondent accepted that her employment would be transferring under TUPE. It also neglected an important point that had emerged during the grievance process, namely whether Mr Gallanders had been personally motivated to avoid taking on the claimant under TUPE because of his previous unhappy dealings with her in 2007. Ms Thomas also accepted under cross-examination that Mr Gallanders’ letter did not deal with all the points that had been discussed at the meeting on 16 October 2008.
147. Neither Mr Neale nor Ms Thomas responded to the claimant’s disclosure about Mr Gallanders’ behaviour. As noted above, Ms Thomas passed the C(1) document directly to Ms Ross and discussed its content with Mr Gallanders. When Mr Gallanders wrote to the claimant on 23 October 2008 withdrawing the whistleblowing policy and making a guarantee of confidentiality, he must have known that Ms Thomas had acted contrary to that guarantee by discussing the claimant’s concerns directly with him (and without her agreement).
The DDA grievance: appeal hearing
149. Two further trustees were lined up to her the claimant’s DDA appeal: Ms Kathryn Uche and Ms Margaret Brydon. The appeal hearing rook place on 28 October 2010. The claimant again prepared notes in advance (pages 419 to 423). The claimant was accompanied by Ms Janet Tyrell, who took minutes (pages 424 and 425). Kate Davies took minutes for the respondent (pages 440 to 449).
150. It is not necessary to go through the minutes in detail. Insofar as the appeal was concerned, the focus should have been on the suitability of the lighting arrangements in the office and the feasibility of using an incandescent alternative by way of reasonable adjustment. Two key points arose:
150.1 The first was that the claimant maintained that the lighting arrangements in the respondent’s office were inadequate and that it had also been entirely inappropriate to hold a previous grievance meeting (on 7 October 2008) in a way designed to test how she would react. On this issue, Ms Uche and Ms Brydon gave no decision at the meeting.
150.2 The second was that the claimant again sought a private discussion with Ms Uche and Ms Brydon with Ms Davies, as minute-taker, absent. This was to address her concerns that Mr Gallanders had taken against her from the start, as shown by the C1(1) document. In particular, she wanted to know how the trustees would deal with her complaint that Mr Gallanders had acted unethically now that he had withdrawn the whistleblowing policy. We accept the claimant’s evidence that this discussion took place. Ms Tyrell corroborated it. Ms Uche did not give evidence but Ms Brydon confirmed to us that she recalled the claimant raising the issue. The claimant received no answer at the time. When questioned by the claimant at the Tribunal Hearing, Ms Brydon told us that the claimant’s concerns about Mr Gallanders were to be resolved “by discussion with the trustees”. When asked if any such discussion between the trustees ever took place, she could not recall if it had.
155. The claimant was continuing to express concerns as to whether it was appropriate of the respondent to ask her to undergo an enhanced CRB check and as to what was happening with the C1(1) document (see, for example, pages 467 to 470). As we have seen, in view of her allegations about Mr Gallanders, the claimant had raised these concerns directly with the trustees. However, at a meeting between Mr Gallanders and the trustees on 11 November 2008, it was resolved that all her future correspondence would have to come directly to the chair of trustees or to Mr Gallanders (page 439). Mr Gallanders had already demonstrated his willingness to write letters in the name of the chair of trustees and without his consent; this resolution was, in our judgment, an attempt on his part to remain in control of the allegations being levelled against him and to obstruct their independent scrutiny by the trustees.
157. In any case, as instructed, the claimant now wrote to Mr Davies. By letter dated 21 November 2008, among other matters, she again asked what was happening regarding her complaint against Mr Gallanders for the comments he had made about her prior to the TUPE transfer, for the manner in which the DDA grievance meeting had been held, for the withdrawal of the whistleblowing policy and for his request that she undergo an enhanced CRB check.
158. On 30 November 2008, the claimant presented her second ET1 claim form to the Tribunal, alleging disability discrimination. Shortly afterwards, the respondent filed its ET3 response form with the Tribunal, in which it resisted the claim on its merits and, as a preliminary point, resisted the contention that the claimant was a disabled person under the DDA. A series of letters exchanged in early December 2008 revealed that the parties were getting nowhere: the claimant wrote at length about her concerns and Mr Davies replied with letters based on advice from Mr Gallanders.
159. On 22 December 2008, the claimant met Mr Llewellyn, the optometrist, for a discussion. It did not get very far because he had not received confirmation that the respondent would meet the cost of the consultation and seemed to be under the impression that the claimant was attending for an eye test. There was evidently a great deal of discussion about the claimant’s employment by the trustees at this time, because Mr Davies prepared a confidential report about her for discussion at a meeting on 13 January 2009 (page 506). The respondent has failed to disclose it.
160. On 21 January 2009, the claimant met Mr Davies. Two other trustees, Margaret Brydon (who was still in the process of dealing with the claimant’s DDA appeal) and Marjorie Dykins, were also in attendance. The minutes of the meeting (pages 514 to 523) show that seven broad items were discussed: the reduction in her sick pay; the status of the ophthalmic assessment; the enhanced CRB checks; the respondent’s manner for handling staff grievances; risk assessments; the claimant’s stress levels; and the whistleblowing issue.
161. Nothing specific was decided about the issues with which we are concerned; the thrust of the trustees’ position was either “We are where we are” or “We will get back to you”. Mr Gallanders did not attend but he annotated the minutes afterwards in a manner that shows he was still directing the process. In relation to the claimant’s proposed amendments to the minutes, which emphasised the lack of response from the trustees to her complaints about him, Mr Gallanders refused to accept them even though he had not been present. He told the claimant that “the notes … [did] not reflect accurately all of the issues and it is AVOW’s intention that these will be dealt with thoroughly through the Employment Tribunal legal process” (page 562). Beyond this letter from Mr Gallanders, the claimant received no further outcome to the meeting on 21 January 2009.
The third and final grievance
165. On 6 February 2009, Dr Mervyn Rosenberg wrote to the claimant to inform her that he had taken over from Mr Davies as chair of trustees (page 554). In a striking sentence in his letter, Dr Rosenberg also wrote:
In view of the intermeshing nature of the points that you are raising and the link these have to the two Employment Tribunal cases you have lodged against AVOW no further correspondence will be entered into issues that you have raised previously to which you have had various responses.
166. It is inconceivable that Mr Gallanders was unaware of the contents of this letter. Indeed, as Mr Gallanders told us, Dr Rosenberg took the view that all the claimant’s issues were “operational” and “strategic” and so should “come through the chief officer”, especially as he was the “route into RBS Mentor Services”.
167. We can understand, to an extent, why the respondent wanted to draw a line under the claimant’s concerns or else defer them to the Tribunal for consideration. However, this would overlook two points. First, the claimant was still an employee and was entitled to be treated in a manner consistent with mutual trust and confidence. Secondly, she had still received no answer to her various complaints against Mr Gallanders that she had been raising, repeatedly and in good faith, since October 2008, and particularly in respect of the comments he had made about her prior to the TUPE transfer in the C1(1) document, the consequent withdrawal of the whistleblowing policy and the requirement that she undergo an enhanced CRB check. It was not enough for the respondent simply to arrange for meetings where the trustees would say, in effect, “we’ll get back to you” and then not do so. The effect of Dr Rosenberg’s letter was to erect a stone wall between the claimant and the trustees on these other issues.
168. Many employees might well have given up at this point. But the claimant was nothing if not persistent. In a letter of reply dated 11 February 2009, she expressed concern at this “closing [of] correspondence” (pages 558 to 559). She said that, as a result, she had “no other option” but to convert these additional concerns into a third formal grievance. In our view, she was entirely justified in doing so. She also made the point that she would want to correspond over the grievance directly with the trustees, and not Mr Gallanders; this was hardly surprising given that the focus of this new grievance was against him personally.
The DDA grievance: respondent’s rejection of appeal
169. It will be recalled that, when originally rejecting the claimant’s DDA grievance, Ms Ross had written a rather puzzling sentence: “you have suggested that use of ordinary light fittings with energy saving light bulbs, however, due to the unknown success of this, we do not consider it reasonable at this stage”. It will also be recalled that Kathryn Uche and Margaret Brydon had heard the claimant’s appeal against Ms Ross’s rejection of her DDA grievance on 28 October 2010. A key issue for discussion was whether “ordinary light fittings with energy saving light bulbs” would constitute a reasonable adjustment. The matter had then been adjourned to enable the respondent to obtain an occupational health assessment.
170. We would have expected the respondent to reconvene the appeal so that the claimant could discuss Dr Llewellyn’s report with the trustees. That did not happen. Instead, on 24 February 2009, Mr Gallanders simply wrote to the claimant to say that her appeal had been rejected (pages 569 to 570). We accept Ms Brydon’s evidence that she did not see the letter before it was sent. Once again, Mr Gallanders was usurping the role of the trustees.
173. On 25 February 2009, Mr Gallanders responded to the claimant’s third formal grievance with a proposal to hold a recorded meeting on 9 March 2009 “in line with our statutory responsibility” (page 573). His final paragraph to that letter is important, where he wrote (with original capitalisation):
Please note that in respect to any communication between AVOW and yourself all correspondence must be via the Chief Officer. Following advice from our legal advisors we wish to make it clear that all communication between ourselves must be conducted in writing or at meetings when appropriate arrangements have been made to record any discussion. NO officer of Trustee from AVOW will engage in any telephone or face to face conversations with you on any matter related to your employment with AVOW.
174. We agree with the claimant that this letter was written in a hostile tone. In particular, it added to the height of the metaphorical stone wall that was being erected between the claimant and the trustees, which was entirely inappropriate given that her outstanding complaints were all against him and there was no-one else to whom she could turn to pursue them. This was also contrary to the request that the claimant had made in her letter to Dr Rosenberg, where she had asked to correspond over her new grievance directly with the trustees.
175. By a lengthy eight-page letter to Dr Rosenberg dated 3 March 2009, the claimant resigned (pages 575 to 582). Her reasons were many and varied but related to all the matters that had occurred during her employment. They included: the respondent’s ongoing failure to adjust; the manner in which it dealt with her grievances about the TUPE and lighting issues; the alleged inappropriate request for enhanced CRB disclosure; its failure to deal with her complaint against Mr Gallanders and his adverse comments about her in the C1(1) document; his subsequent decision to withdraw the “whistleblowing” policy; and so on and so forth. The claimant did not expressly indentify a “final straw” in her letter, but the last act named in the resignation letter was the letter dated 25 February 2009 from Mr Gallanders. We accept her evidence that this was, in her mind, the last straw, since it provided final confirmation that the claimant could seek no redress from the respondent’s trustees.
Ancillary matter: adjournment request
177. Seven days prior to the Hearing, on 28 February 2011, the respondent had applied for the entire six-day Hearing to be postponed due to the unavailability of Dr Rosenberg on grounds that he was to undergo an eye operation. That application was refused, with reasons, by letter dated 1 March 2011. Paragraph 1(g) of that letter said this:
If the absence of Mr Rosenberg is truly insurmountable and prejudicial to the respondent, that prejudice can be resolved by adjourning the case part-heard and coming back with a much shorter timescale to hear his evidence on one day. That would be undesirable but nonetheless preferable to the loss of the current six-day slot.
178. At the outset of the second day of the Hearing, after our reading day, we had pointed out to the parties that the respondent was at liberty to apply for the case to be adjourned part-heard, but that the respondent would need to explain in clear terms why Dr Rosenberg’s evidence was relevant to the issues for the Tribunal to determine and why the Tribunal could not fairly reach that determination without hearing his evidence. It was accepted by both parties that we could reach that assessment in a more informed manner if we dealt with any application to adjourn part-heard after we had heard from the other witnesses.
179. Once we had heard from all of the claimant’s witnesses and all the respondent’s witnesses save for Dr Rosenberg, Ms Bibi renewed that application. This was at the end of the fifth day and prior to submissions. At the time of that renewed application, we were now fully aware that Dr Rosenberg had become the respondent’s chair of trustees on 3 February 2009 and held that position as at the time of the claimant’s resignation on 3 March 2009. We listened carefully to Ms Bibi’s application and noted the claimant’s objection to it.
180. We started by attempting to assess the relevance of Dr Rosenberg’s evidence and whether we could fairly determine the issues in this case without hearing from him. That assessment was difficult because, as we said above, the manner in which the respondent had drafted its witness statements was singularly unhelpful. Like the other trustees and officers, Dr Rosenberg’s statement, which comprised three sentences, was limited to an assertion that certain minutes and/or letters were a true and accurate record of his views, accompanied by a request that we look at certain pages of the bundle. The respondent cannot plead ignorance as to what is expected of a witness statement: it has been professionally represented throughout; the very first CMD order in March 2009 made clear that the evidence in chief of witnesses would be given by the reading of witness statements; and the CMD order of August 2010 made clear that such statements (which were to be exchanged by 10 January 2011) were to contain “the evidence of each witness to be called to give evidence”. Taking that approach, Dr Rosenberg’s statement told us nothing about the issues in dispute.
181. Nonetheless, having read the documents to which he referred in his statement and listened carefully to Ms Bibi’s application, we examined five areas where his evidence might be of relevance. We dealt with them in turn:
181.1 First, he was one of two trustees who heard the claimant’s TUPE grievance on 3 September 2008. However, we had already heard from the other trustee who heard that grievance, namely Moira Jones, and we knew from her that Mr Gallanders had written the response. Evidence from Dr Rosenberg would take the matter no further.
181.2 Secondly, when he was chair of trustees, Dr Rosenberg was the recipient of correspondence from the claimant in which she raised a further grievance (11 February 2009) and then chased for a response (24 February 2009). He might therefore be able to explain why he did not reply to such correspondence. However, he said nothing about this in his witness statement. We had already heard oral evidence from Mr Gallanders that all further communication from the claimant to the respondent was to be via him as the chief officer. There was a letter in the bundle confirming this approach (page 573). The other trustees from whom we heard evidence also confirmed this approach. Evidence from Dr Rosenberg would take the matter no further.
181.3 Thirdly, Ms Bibi suggested that Dr Rosenberg could give evidence on how, having taken over from Mr Davies as the respondent’s chair of trustees, there would now be a different approach to the handling of the claimant’s grievances. Once again, that was not in his witness statement. In any event, Mr Gallanders gave unchallenged evidence to that effect, telling us that Dr Rosenberg took the view that the claimant’s issues were “operational” and “strategic” and should come through the chief officer. Hearing the same evidence from Dr Rosenberg would take the matter no further.
181.4 Fourthly, Ms Bibi suggested that Dr Rosenberg could give evidence on certain points he made in his lengthy letter dated 1 April 2009, sent in reply to the claimant’s lengthy letter of resignation (pages 600 to 607). In particular, she said, this would cast light on how the respondent had dealt with the claimant’s grievance against Mr Gallanders under the whistleblowing policy prior to its withdrawal. However, his letter was of limited value on that front. He wrote: “AVOW have now responded to all these issues you have raised and the fact that the whistleblowing policy was withdrawn has not in any way prejudiced your position” (page 606). This did not address the issue that the claimant had raised and he had provided no further information about the matter in his witness statement.
181.5 Fifthly, and crucially, Dr Rosenberg’s letter on which he would give evidence related to matters about which he was informing the claimant after her resignation. While it was appropriate for the respondent to reply to the claimant’s resignation letter, its contents post-dated the alleged repudiation of her contract of employment. As was made clear in the Court of Appeal’s decision in Buckland v University of Bournemouth  IRLR 445 (see below), if and when a repudiation of contract has taken place, an employer cannot unilaterally seek to remedy it. It is what happened prior to 3 March 2009 that matters and Dr Rosenberg’s evidence would take the matter no further in that regard.
182. There were three other reasons for refusing the application.
182.1 Some of the matters raised in the Tribunal’s letter to the parties dated 1 March 2011, relating to the original application to postpone, had still not been addressed. For example, it was still the case that the respondent had provided no medical evidence to explain the nature of Dr Rosenberg’s eye problems, why an operation was required, why any rearrangement of that operation would have meant an 11-month delay and why the respondent did not make the application sooner.
182.2 Importantly, Ms Bibi informed us that she would have had no further questions in chief to ask Dr Rosenberg to supplement his statement. For our part, we would have had no questions for him. The claimant has told us that she would have had no questions for him. So, again, his evidence would take us no further than his statement took us already – which was not very far at all.
182.3 There would be no or very limited prejudice to the respondent’s case in continuing without evidence from Dr Rosenberg. It would not in our view preclude the respondent from a fair determination of the issues. That would need to be compared with the very substantial prejudice caused to the claimant by delaying the determination of a claim that had been presented over two years ago. We checked with the Tribunal listing department and they told us that it would be impossible to guarantee a further day prior to August, bearing in mind that the Tribunal does not have its own premises in North Wales.
183. In those circumstances, we refused the application.
214. These matters were also all capable of contributing to a breakdown in mutual trust and confidence. However, there were further matters that contributed to that breakdown:
214.1 This is a conclusion that we reach in only exceptional cases, but we have reached it in this case without hesitation: from start to finish, the grievance processes were a sham. They did not resemble a fair attempt to deal with the claimant’s concerns. The process was controlled by Mr Gallanders (and, to a lesser extent, Ms Ross). The trustees merely listened to what the claimant said and took no proper decisions in response. They deferred all such decisions to the officers. They failed in their duties to oversee the conduct of the officers. The fact that they are unpaid volunteers is no excuse.
214.2 This criticism applies equally to the DDA grievance, the TUPE grievance and the third formal grievance. There were outstanding matters in all three. The first involved a misunderstanding and stereotyping of the claimant’s condition. The second never dealt with the claimant’s concerns about why Mr Gallanders had been reluctant to accept her under TUPE. Most serious of all was the lack of any proper attempt to deal with the claimant’s grievance against Mr Gallanders. This included the highly inappropriate remarks he made about her in the C1(1) document as well as her (ultimately correct) assertion that he had sought an enhanced CRB check for improper reasons and his unilateral withdrawal of the respondent’s whistleblowing policy from the moment she sought to rely on it. In those circumstances, it was understandable that the claimant should look to the trustees for redress. The final straw was Mr Gallanders’ refusal in his letter dated 25 February 2009 to allow the claimant even to write to them, closing down for good that final avenue of redress.
215. We therefore conclude that the respondent acted in fundamental breach of the implied term of mutual trust and confidence. The claimant was entitled to accept that breach and resign; she did so in consequence and without waiving it. She was therefore constructively and unfairly dismissed.