England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd July 2003

Lord Justice Ward :

Introduction.

1. This is an appeal brought by the Commissioners of Customs & Excise with the permission of Peter Gibson L.J. against the order of the Employment Appeal Tribunal made on 23^rd May 2002 allowing Ms Jean Logan's appeal against the Employment Tribunal's dismissal on 13^th March 2000 of her complaint that she had been unfairly dismissed. The Employment Tribunal had dismissed that complaint on the basis that she did not have a case to answer and that there was in those circumstances no need to call upon the commissioners to answer it. In giving permission Peter Gibson L.J. said:-

"… the case raises a point of practice of some general importance as to the ability of an ET to dismiss a complaint on the ground of no case to answer."

2. Ms Logan relied on constructive dismissal. She complained that in April 1997 she was subjected to a "verbal assault" by her line manager Sharon Downs who later became Mrs Harrison. This was so upsetting she was away from work on sick leave. She returned in June to a temporary post arranged for her. She also invoked the grievance procedure and complained about her line manager's conduct. Eventually in October that complaint was rejected. The temporary work came to an end and she was posted within the same building and was nervous about meeting Sharon Downs. Numerous attempts were made to find her employment elsewhere but these were unsuccessful. There were meetings with management. In February 1998 she again became ill through this stress. Her absence was broadly speaking continuous. Finally in January 1999 she met Mr Ballance under whom she had last worked. She explained her anxiety working in the vicinity of Sharon Harrison. If she would not return to work, she was presented with the options of medical retirement or facing the possibility of dismissal. Mr Ballance said he would report to the Personnel Department. He met her again in May 1999 and advised her that if she was not willing to return to work and would not consider medical retirement the only option available to the department was dismissal. Instead she resigned on 21^st May 1999.
3. Ms Logan appeared in person before the Employment Tribunal and gave evidence on the first day of the hearing, Wednesday 16^th February 2000. She gave evidence by reading the narrative in the originating application and supplemented it by further oral evidence. She was cross-examined. The following day Mr Tucker, counsel for the commissioners, submitted there was no case to answer.

The judgment of the Employment Tribunal.

4. The tribunal dealt with the Sharon Downs incident very shortly. They said:-

"The applicant's evidence, which in some ways was in contrast to the case put forward in the originating application, was that there had been an incident in April 1997 which caused her great distress."

It is not clear from the notes of evidence in what way this differed. In her written application she said:-

"Ms Downs shouted with harsh gutteral rage, which became more agitated and uncontrolled as the incident progressed."

In cross-examination, for example, she spoke of "shouting animatedly, screaming, frenzied".

5. Her complaint was investigated by Mr McGuire of the Internal Investigation Unit. She met him in July 1997. He reported in October 1997 rejecting her complaint. The tribunal noted:-

"The applicant says that the delay in carrying out the investigation and the failure of the respondent properly to carry out the investigation was a further breach of her contract of employment and moreover, she regarded it as a fundamental breach. Certainly, by the middle of November 1997 the applicant had in place all the information that she at that time would have needed, to be satisfied that there had indeed been such a breach of contract and indeed, she told the tribunal that that was her belief at that time."

6. The tribunal also found that:-

"Although in her Notice of Application to the Tribunal the applicant asserts that in the ensuing months there was a failure by the respondent to pursue her request that relocation in another Government department should be sought, that assertion in the Originating Application is negated by the documentation which was produced by the respondent and which was put to the applicant in cross-examination. Our finding in relation to that matter is that the applicant agreed in cross-examination that there was evidence that the respondent had indeed done that which they could with regard to finding her employment in another department."

7. However,

"The final matter which the applicant complains of is in relation to two interviews which she had with Mr Ballance, who was manager in the respondent's organisation. In particular an interview which she had in May, shortly before she resigned. She says that the conduct of the respondent in those interviews was itself a breach of contract but even if it was not a breach of contract, she was entitled to regard it as the "final straw" and was therefore entitled to bring in the other matters which she complains of and justifies her resignation."

8. The tribunal then dealt with the submission of no case to answer and having referred to Coral Squash Clubs Ltd. v Matthews [1979] IRLR 390 and Ridley v GEC Machines Ltd. [1978] 13 ITR 195 said:-

"10. The way the tribunal has approached the submission is to acknowledge the general principle that it is rare for the tribunal to accede to such a submission and therefore it is fair to say that Mr Tucker has quite a high hurdle to climb to convince us that his submission should be accepted. But what the tribunal has in mind is this: we are at a point in the case where the applicant has given evidence, she has put forward all that she wished to put forward in support of her case; she had provided to the tribunal all that she wished the tribunal to have in terms of her evidence and documentation, and the tribunal has had regard to that evidence and documentation. The question we have to ask ourselves is if we were to hear evidence from the respondent's witnesses is it likely to improve the applicant's case? … The tribunal having considered all the evidence that we have heard from the applicant and the other matters that we have taken into account, answer that question as "no". Nothing that the respondent's witnesses are likely to say will influence the view that we have at this moment arrived at on a preliminary basis. So that if Mr Tucker were to take the step not calling evidence and we were to determine the case as we would then do so, we would have come to the same conclusion.

11. Our conclusion is this. Whether or not we accept the applicant's version of events in relation to the incident of 28^th April or whether we accept Sharon Harrison's version of those events does not matter. The fact is that something happened in that interview which distressed the applicant and which apparently caused Mrs Harrison concern. … Moreover, we are satisfied, even without Mr McGuire's evidence being heard that there is sufficient material contained in the bundle of documents and in particular in the letter which rejects the applicant's complaint to show that Mr McGuire singularly failed to follow the procedure which he was contractually bound to follow. In the view of the tribunal, he singularly failed to afford the applicant what might be regarded as the basics of natural justice. He decided the case on the basis of documentation that he had received, which the applicant had not seen and been afforded the opportunity of commenting on. He decided the case on the basis of a written submission from Sharon Harrison, whereas the grievance procedure under which he was operating presupposed at least, if not required, that there would be an interview of Mrs Harrison at which questions could, if appropriate, be asked of the matters that were in contention. He then came to a conclusion which he notified to the applicant and which contained in its notification at least three issues, which in view of the tribunal went not only against the respondent's own procedure, but against natural justice. The applicant did not get a fair hearing of her complaint and we are satisfied that when she was told of Mr McGuire's decision in October 1997 and perhaps more pertinently when she received copies of the documents which she had not seen and which were sent to her in November 1997, she was entitled to conclude that she had been given a pretty raw deal by the respondent in the shape of Mr McGuire. Indeed we would go so far as to say that the view of the tribunal is that it is not only a pretty rare deal, but it amounted to a breach of the applicant's contract of employment. The applicant was contractually entitled to have her grievance dealt with and dealt with fairly, and she did not get that. We are satisfied that at that stage it was open to the applicant either to conclude that the respondent was indeed in breach of her contract of employment in circumstances in which she was entitled to resign or was certainly open to the applicant, with the benefit of those who were then advising her (solicitors and trade union representatives) to take up with Mr McGuire the inadequacies of the procedure which he had followed and to ask him to re-open his enquiry or to allow an appeal against that enquiry in accordance with the procedures.

12. Unfortunately, for whatever reason (and it may be that it was the fault of her advisers) the applicant did none of this and therefore, we are left with the position that in November or December 1997 the applicant may well have been in a position to resign her employment and present a complaint of constructive dismissal. The view of this tribunal is that on the evidence that we have heard regarding the adequacy or inadequacy of Mr McGuire's efforts, the chances are that she would have had at least a pretty good chance sometime in the spring of 1998. But of course the applicant did not then resign.

13. We then turned to the two matters which the applicant said in her evidence were also breaches of contract and were in any event part of the "final straw". These are the two interviews with Mr Ballance, the one in 1999 and one in May 1999. We view these interviews not in the way that the applicant describes them in her Originating Application, because this was another area where the applicant's evidence as it came out in the tribunal, was at variance with what was said on her behalf in the Originating Application …

14. We are satisfied that Mr Ballance as a manager was doing what he was required to do. He had an employee who had been on long-term sick. He had as a matter of policy to manage that employee and to manage her long-term sickness and we are satisfied that the interviews that he carried out with the applicant in January and May were proper interviews which were required and necessary to be carried out. We are satisfied on the evidence before us, including particularly the applicant's own evidence as given to the tribunal, that nothing that Mr Ballance did or said on those two occasions could be regarded as in themselves a breach of contract. We therefore have to consider whether what Mr Ballance did or said on those occasions could properly be regarded as a "final straw" which the applicant is able to add to matters before. We are not satisfied even that the applicant has established that anything that Mr Ballance said or did could properly be regarded as a "final straw". But if we were wrong in that conclusion the difficulty the applicant still has is the gap from November 1997 to May 1999. That is eighteen months and although Lewis v Motorworld makes it plain that an employee is entitled to heap together the straws so as to finally get the burden that breaks the camel's back, there has to be some proximity between the straws, and there has to be proximity in time or in nature, but if there is neither proximity, then in our view, Lewis v Motorworld simply does not help the applicant's case.

15. So we are left with this position – the applicant has satisfied the tribunal for the reasons I have already given that this respondent was in breach of her (sic) contract of employment in the late autumn of 1997. Moreover they were in breach of a fundamental term of that contract. The respondent has treated her in such a way that she was entitled to turn around and say "I am of the view that you are no longer intending to be bound by my contract of employment and I accept your repudiation". But that of course is not what she did. She did not terminate her contract for eighteen months and in the view of the tribunal, that delay is simply too long. By delaying as she did over the eighteen month period she must be regarded as having waived the breach and affirmed the contract, and nothing that happened subsequently, certainly nothing that happened in proximity to the resignation can be regarded as having resurrected that breach in the way that it is suggested in the authorities can happen.

16. Therefore … the tribunal has decided on this occasion, unusually, to accede to Mr Tucker's submission. We are satisfied that the applicant has not established the case which she has to establish and having failed to establish the case that she has to establish, the respondent does not have a case to answer. Therefore for those circumstances, at this stage, we dismiss the application."

The judgment of the Employment Appeal Tribunal.

9. Because our focus is on the judgment of the Employment Tribunal, I can be quite short with the reasoning of the Employment Appeal Tribunal. They concluded firstly that:-

"Applying the general principle set out in the authorities to which we have referred, the circumstances were not so exceptional or clear cut as to justify the dismissal of Mrs Logan's claim after hearing her evidence alone and without the tribunal having the opportunity of hearing such evidence, if any, as was called by the employers and the benefit of having that evidence tested by cross-examination; the decision to do so was one which a reasonable tribunal properly directing itself should not have reached."

10. Secondly the Appeal Tribunal held that it was:-

"… essential for the tribunal, whatever its conclusion as to Mr Ballance's conduct, to explain why they had reached that conclusion [that nothing he said or did could properly be regarded as a final straw] and not merely to state the conclusion. … We conclude, therefore, that the tribunal erred in law in failing to provide an account of the facts and of their reasoning sufficient to comply with the requirement of Meek v City of Birmingham DC [1987] IRLR 250 to which we have referred."

11. Finally they concluded that:-

"The tribunal in this case did not simply consider the time between the earlier and subsequent conduct as a factor in their overall judgment; they appear to have reached their decision on the basis that, as a matter of law or principle, there had to be proximity in time and that, applying that principle the eighteen months gap between the employer's conduct and Mrs Logan's grievance and the Ballance interviews, of itself required them to conclude that the last straw doctrine did not apply."

No case to answer.

12. The early cases establish the principle. In Oxford v Department of Health and Social Security 1977 I.C.R. 885, 887, Philips J. said:-

"It seems to us that that [the decision to hear evidence from both sides] was a very proper course to have adopted, and we recommend it as being the course which is in most circumstances the right course to adopt. It further seems to us that, while the burden of proof lies upon the applicant, it would only be in exceptional or frivolous cases that it would be right for the Industrial Tribunal to find at the end of the applicant's case that there was no case to answer and that it was not necessary to hear what the respondent had to say about it."

13. In Ridley v GEC Machines Ltd. [1977] 13 I.T.R. 195, 197, a case of constructive dismissal, Philips J. said:-

"The argument has revolved around the fact that because of the invitation to the respondent employers to call no evidence their side of the story was never given and so the case was never fully investigated. At first sight that might sound odd because, of course, the onus of proof lay upon Mr Ridley as claimant to show that he was dismissed, and it may be asked, why was it necessary for him in order to do that to be able to pray in aid evidence other than himself and any witnesses he chose to call? But in reality the position is somewhat different in this class of case, where what is being alleged is constructive dismissal. In effect the claimant is saying that he was driven out by the conduct of the employer. The test varied from time to time, but is now firmly established. However it is put, in order to understand the whole position it is very often necessary to see what is said on the employer's side. Only then can the whole picture be seen. Furthermore, as the Appeal Tribunal has said more than once in different classes of case, the cases which are heard by Industrial Tribunals, are very different from the ordinary case heard by regular courts, and the litigation of necessity takes – or certainly at all events ought to take – something of the form of an inquiry: so that ordinary customary legal procedures need to be applied with that requirement in mind. It is really essential that at the end of the day the parties should feel that the whole of the facts have been investigated. Particularly of course is that so in a case such as this where the complaint is one of constructive dismissal.

… It seems to us that in all the circumstances of this case [stopping the case at the end of Mr Ridley's evidence] was not a satisfactory approach, and they would have been wiser to have heard what the employers had to say."

14. In Walker v Josiah Wedgwood & Sons Ltd. [1978] I.C.R. 744, 753, Arnold J. said:-

"The general approach, as we think, must be that in cases concerned with unfair dismissal, whether it be constructive dismissal or direct dismissal, the conception of submission of no case to answer is somewhat out of place."

15. In Coral Squash Clubs Ltd. v Matthews [1979] I.C.R. 607, 611 Slynn J. held:-

"We do not think there is a rigid rule of the kind which Mr Brooke first contended for [viz., that a submission of no case should never be allowed except perhaps if there was an error of law]. It is clear that in many cases it is of great importance to hear both sides. We think that would be the normal position. This tribunal has already said in cases alleging race or sex discrimination that it is right normally to hear both sides. It has been said also that where constructive dismissal is alleged, in the ordinary case it is important to call upon both sides to give evidence … But as we understand it, this tribunal has never said that the Industrial Tribunal cannot stop a hearing at the end of the case of the party whose evidence and submissions come first. It is clearly a power which must be exercised with caution but if the tribunal is satisfied that the party upon whom the onus lies and who goes first has clearly failed either in law or fact to establish what he set out to establish, then it seems to us that the tribunal is entitled to decide the case at that stage."

16. This court expressed the rule in this way in Jones v Mid-Glamorgan County Council [1977] I.C.R. 815, 826 per Waite L.J.:-

"The general guidance in the authorities cautions, as the tribunal itself observed, against adopting such a procedure [acceding to a submission of no case to answer] in the tribunal. It would be natural therefore for the Industrial Tribunal, before deciding whether in its discretion to entertain a submission of no case, to see if there were any exceptional circumstances justifying a departure from the normally accepted practice."

17. Mr Stilitz draws our attention to the judgment of His Hon. Judge Peter Clarke in Hackney London Borough Council v Usher [1997] I.C.R., 705, 713 where he made these points:-

"First, it is open to a tribunal to stop a case at half time where a party going first and upon whom the onus lies has clearly failed to establish what he set out to establish. … Thirdly, there have been and will be utterly hopeless or frivolous cases where a tribunal is entitled to halt the proceedings without hearing the other party."

From this judgment Mr Stilitz seeks to draw a distinction between cases where the burden of proof is on the applicant when, he submits, the lower threshold of having clearly failed to establish the case applies, as opposed to other cases where a higher test of the case being hopeless or frivolous is required.

18. I am not sure that that is what Judge Clarke intended. In an unreported decision of his delivered on 4^th May 2000 in Clarke v Watford Borough Council he succinctly summarised the position as follows:-

"(1) There is no inflexible rule of law and practice that a tribunal must always hear both sides, although that should normally be done: Ridley.

(2) The power to stop a case at "half-time" must be exercised with caution: Coral Squash Clubs.

(3) It may be a complete waste of time to call upon the other party to give evidence in a hopeless case: Ridley.

(4) Even where the onus of proof lies on the applicant, as in discrimination cases, it will only be in exceptional or frivolous cases that it would be right to take such a course: Oxford, Owen and Briggs v James [1981] I.C.R. 377 (Slynn J.), British Gas plc v Sharma [1991 IRLR 101, 106 (Wood J.)

(5) Where there is no burden of proof, as under s.98(4) of the Employment Rights Act 1996, it will be difficult to envisage arguable cases where it is appropriate to terminate the proceedings at the end of the first party's case, as I said in Hackney."

19. That summary in my judgment trenchantly and accurately summarises the law as I understand it. His fourth proposition applies not only in discrimination cases but in cases like this of constructive dismissal. It should be rare for the submission to be made and more rare for the submission to succeed. It seems to me that the Employment Tribunal in paragraph 10 correctly encapsulated the essence of the rule and I would not find fault with their approach.
20. Mr Stilitz advances a further submission. Since the matter was before the Employment Tribunal, the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 came into force on 18^th April 2001 which, pursuant to regulation 10, introduced the overriding objective into the practice of the Employment Tribunal. This opens the way, submits Mr Stilitz, to a more robust stance being taken in the interests of saving expense and dealing with cases expeditiously and fairly. He submits that respondents ought not to have to endure days of hearing at their own expense if the case has no realistic prospect of success. The question does not truly arise before us because we are considering the exercise of discretion by the Employment Tribunal before the new rules were binding upon them. Nonetheless I would urge some caution. In paragraph 12 of his judgment in Miller (t/a Waterloo Plant) v Cawley [2002] EWCA Civ 1100 Mance L.J. was careful to distinguish between the submission of no case to answer and an application for summary judgment. In paragraph 13 he said:-

"… considerable caution is necessary before a judge entertains such a submission [of no case to answer] or undertakes such a determination, without requiring an election [by the defendant not to call evidence]. The trial is now in progress, and although the test (no real prospect) differs from that applicable after hearing all possible evidence (balance of probability) caution is dictated. … The submission interrupts the ordinary trial process, and it is not desirable that, during that process, the judge of fact should be put in a position where he may find himself having to express first an initial view on the basis of taking the claimant's evidence alone and then (if he allows the claim to proceed) a further final view after taking into account further evidence, even though he does so by reference to different tests."

21. As I have indicated the legal approach of the Employment Tribunal cannot be faulted. An appeal against their decision lies only on a point of law. It is necessary, therefore, to establish not merely that they erred in the exercise of their discretion, but that their decision was perverse or that they failed to take into account a relevant factor or took into account matters which were irrelevant. That makes it necessary to analyse their judgment a little more closely.
22. The breach on the employer's part which justified repudiation of the contract of employment by the employee was the failure to provide the employee with a fair hearing of her grievance. That, however, was not the only breach upon which Ms Logan relied. She was complaining of bullying by Sharon Downs, so upsetting for her that she was ill as a result of it and thereafter remained so threatened by Miss Downs that she felt unable to work in the vicinity of this lady and was again ill at the thought of having to do so. The Employment Tribunal did not adjudicate on whether that complaint was well founded or not. They took the view that whether or not they accepted the applicant's version of the events or whether they accepted Mrs Harrison's version simply did not matter. In that they were in error. It was important to establish whether the employer was guilty of one breach or two. Although the tribunal were critical of aspects of Ms Logan's evidence, they did not reject her evidence as incredible. With nothing set against it, that evidence stood and at the conclusion of her case she would have proved the charge of bullying. It required Mrs Harrison to give evidence to enable a contrary view to be formed. Unless and until they had heard the whole case, they could not properly judge whether the actions of Mr Ballance were the last straw.
23. Like the Employment Appeal Tribunal, I am satisfied that stopping the case at this point was a step which no reasonable tribunal, properly directing itself, would have taken and the appeal against the Employment Tribunal's decision must succeed.

Was there a reasoned decision for rejecting the last straw case?

24. The nub of the findings here were that the tribunal took a different view about the interviews from the way that the applicant described them in her originating application: see paragraph 13 of their decision. They were satisfied Mr Ballance was doing what he was required to do: see paragraph 14. They were, however, "not satisfied even that the applicant has established that anything Mr Ballance said or did could properly be regarded as a "final straw"."
25. The conclusion is clear enough but the question arises as to whether or not the tribunal has satisfied the test which was set out in Meek v City of Birmingham [1987} IRLR 250 but is now much more authoritatively stated by this court in English v Emery Reinbold & Strick Ltd.[2002] 1 WLR 2409 where Lord Phillips of Worth Matravers M.R. said:-

"16. We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost. …

19. It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every fact which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues and the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained."

26. Here the critical issue was to identify the substance of Ms Logan's complaints to Mr Ballance. In her written statement, confirmed by her evidence, Ms Logan said this:-

"I had several meetings with management in the following months all relating to my return, none of these meetings proved to be of any use. The only options ever being put to me were 1. return to my original position, 2. retire on health grounds, 3. be dismissed. I had a final meeting with Philip Ballance, a senior officer in late April/early May as I desperately wanted to return to work. Again I was given the same three options."

In the notes of her evidence she said:-

"I resigned just after 07.05.99. meeting because I had waited a long time for a proper and thorough investigation to be carried out. I had tried to explore all possibilities of work away from Downs so I could do my job. R was not prepared to find me such a position. Told no vacancies elsewhere nor would there be in the future."

27. What seems to be Mr Ballance's minute of the meetings is placed before us. In the January meeting he records:-

"Jean stated she would very much like to return to work and needed to return to work not only to help her recover from illness but also in order to adequately support herself and her family. However, she felt she would only be able to do so if she did not feel threatened and felt safe where she worked. She explained in some detail the various problems she had experienced in the past, and in particular her complaint about Sharon Harrison. She felt that this complaint was not investigated properly or fully and that there were also additional instances where she had felt threatened and bullied by Sharon Harrison. She stated she was frightened of Sharon and would not be able to return to work unless her safety was guaranteed. … She feels she has been let down by everyone who has been involved, including the LTUS and PU and that no-one has taken her complaint seriously."

His note of the May meeting records:-

"I advised Jean that it had now reached the stage where she had to clearly decide what her intentions were regarding returning to work. We had fully discussed the options during our last meeting and I advised her that if she was not willing to return to work and would not consider medical retirement, the only option available to the department was dismissal. Jean reiterated her concerns regarding returning to work in a building where she did not feel safe. She stated she would like to return to work but could only do so if she felt secure. … She would not give a clear answer as to whether she would return, on each occasion Jean went back over the problems she had experienced and how none of it had been of her making."

28. It seems to me that the critical question arising from all of that is whether it was a reasonable response for the employer to say that the employee must retire on health grounds, or grin and bear it at work or face being dismissed when the employee was in desperation still saying to her manager, "Mrs Harrison has been wrongly exonerated and you cannot expect me to return to work where I feel threatened and insecure".
29. When I read the judgment I do not know what reasons the Employment Tribunal had for concluding that Mr Ballance's response to the complaint was not a last straw. It may or may not have been, for it is not for this court to decide that question. But this court can expect to see how and why it was decided by the tribunal and I regret that I am as much in the dark as Ms Logan is. As she would see it, she went to her manager seeking protection. She did not get it. Why would that not be the last straw? The decision does not give a reasoned response to that important part of the case. It was, moreover, a part of the case which could not be properly resolved without hearing Mr Ballance and that is a further reason why it was unreasonable of the tribunal to stop the case as and when they did.

The last straw argument.

30. The "last straw" situation was succinctly stated by Glidewell L.J. in Lewis v Motorworld Garages Ltd. [1986] I.C.R. 157, 169 to be this:-

"The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?"

31. That case also established another important issue of principle stated by Glidewell L.J. at p.170 in these terms:-

"If the employer is in breach of an express term of a contract, of such seriousness that the employee would be justified in leaving and claiming constructive dismissal, but the employee does not leave and accepts the altered terms of employment; and if subsequently a series of actions by the employer might constitute together a breach of the implied obligation of trust and confidence; is the employee then entitled to treat the original action by the employer which was a breach of the express terms of the contract as a part – the start – of a series of actions which, taken together with the employer's other actions, might cumulatively amount to a breach of the implied terms? In my judgment the answer to this question is clearly "yes"."

32. Of course the last straw argument does not arise if there was no waiver of the breaches of contract which would have justified resignation. That creates a problem in this case. The Employment Tribunal did not consider whether or not the bullying was established and if so whether it amounted to such a breach. They did not, therefore, consider whether that breach had been waived. They concentrated only on the breach occasioned by the lack of fairness in dealing with Ms Logan's grievance against Mrs Harrison. Strictly speaking one is considering affirmation rather than waiver. The concepts are different. Affirmation involves an election to continue the contract: the employee has to grin and bear it. Waiver involves forfeiting a right to complain about the breach. There may not be much in it. Lapse of time may of course be evidence of affirmation but only if the delay in itself was of such a length as to evidence the fact that the party had indeed affirmed the contract. So long as she has not done so, time does not run. The tribunal concentrated solely on delay and concluded that having delayed for eighteen months, "she must be regarded as having waived the breach and affirmed the contract". From the notes of the meeting made by Mr Ballance there is evidence from which a tribunal could conclude that Mrs Logan was continuing to complain of bullying and was not accepting that she would return to work despite the bullying to which she had been subjected and without protective measures having been taken. This is another matter which needs proper investigation.
33. The Employment Appeal Tribunal criticised the Employment Tribunal for having elevated the need for "proximity in time or in nature" "between the straws" from a factual enquiry into a proposition of law which was not stated in Lewis. That is true. What Lewis requires was a view in its totality of the whole course of conduct in order to see whether the actions of the employer constitute together a breach of the implied obligation of trust and confidence. The employer's actions must be judged cumulatively. If what Ms Logan was complaining about was a constant theme played out from April when the "verbal assault" is said to have occurred, with a variation of theme introduced in October/November as a result of Mr McGuire's inadequacies then the continuity of those complaints is relevant to the consideration of proximity in time. If the nature of the complaint, the bullying and the wrongful acquittal of Mrs Harrison, was consistently made then there may be proximity in nature. The Employment Tribunal does not appear to have approached the matter in that way when they ought at least to have considered those questions.

Conclusion.

34. I am satisfied that the Employment Tribunal has erred in this case for substantially the same reasons as given by the Appeal Tribunal. It follows that the appeal against that decision of the Employment Appeal Tribunal must be dismissed and matter remitted to the Employment Tribunal for rehearing. This outcome is one of the very reasons why submissions of no case are dangerous to make and to allow. The shortcut has once again led to a much longer journey for the parties at greater expense. Perhaps they will be sensible and seek the help of this court's alternative dispute resolution service to see if some satisfactory accommodation of their differences can now be found.

Lord Justice May :

35. I agree.

Lord Justice Carnwath :

36. I also agree.
Order- appeal dismissed with costs and matter remitted to a differently constituted Employment Tribunal. (Order does not form part of the approved judgment)