England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE LAMB QC
7MS01212

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/10/2012

Lord Justice Treacy:

Introduction

1. This is an appeal brought by a partly successful Claimant from the decision of His Honour Judge Lamb QC sitting at the Central London Civil Justice Centre. The judge's order is dated 9^th June 2011. The claim was for damages resulting from the Respondent's negligence as the Appellant's employer. The judge found that the Appellant had suffered stress associated with his work which had harmed his mental health and led to a breakdown at the end of June 2003.
2. The Appellant was awarded a total of £35,615.03. This included an award of £25,000.00 for general damages representing moderately severe psychiatric harm within the JSB Guidelines on General Damages (10^th edition) which were current at the time. There is no appeal against the sum awarded for general damages. The judge awarded £4,891.42 as representing loss of earnings. As will become apparent, that sum represented lost earnings up to 30^th June 2004, but not beyond.
3. The main focus of the appeal has been on the cut off date for the award for loss of earnings, it being the Appellant's submission that the award in that respect should have continued far beyond that date, if not to the end of the Appellant's working life.
4. The central thrust of the appeal relates to the judge's findings on causation and the relationship of the stress at work aspect to the fact that during the relevant period the Appellant suffered the traumatic breakdown of his marriage. There have been other issues raised: (1) the date at which the judge found the Respondent was in breach of its duty of care; (2) the applicability of the Working Time Directive and Working Time Regulations 1998; (3) the Appellant's pay grading.
5. The Appellant was born in November 1949. In 1965 he was employed by the Respondent borough as an apprentice gardener. He spent his whole working life in the Respondent's employment, rising to the level of Operations Manager of their Parks and Open Spaces Department. He retired from that post on 19^th May 2004, his retirement on grounds of ill health having been agreed on 18^th February 2004 after medical assessments. The Appellant's last working day was on 30^th June 2003, at which time he suffered a mental breakdown which the judge found had been caused by the Respondent's negligence. As already stated the judge found that the effect of the Respondent's negligence was limited to a period of twelve months from the Appellant's last working day and that the causative effect of any breach of duty ceased at the end of June 2004, being superceded from that point by the effects of the breakdown of the Appellant's marriage and related factors.

Chronology

6. The relevant chronology shows that by 1997 the Appellant was already in his final post. In January 1997 he was the subject of an appraisal exercise with his manager, Eve Risbridger. It was noted that there had been a lack of investment in the Parks Department, that staff had been lost over the years, and that he had worked well in trying circumstances. In 1997 there was a general stress study of the Leisure and Parks Department. In March 1998 the Appellant's job was graded as Level PO3. In 1998 and 1999 two members of the department suffered from work related stress problems. One of these matters was dealt with by Ms Risbridger. On 28^th January 2000 the Appellant had an appraisal session with Ms Risbridger. It was noted that the Appellant had "an incredible capacity for keeping…going while additional work keeps escalating". At this meeting the Appellant revealed that he had recently seen his GP complaining of headaches and heart palpitations. Ms Risbridger said that she would refer the matter to the Respondent's Occupational Health Unit "so that the situation is on record". In fact Ms Risbridger did not make any such reference, nor did the Appellant subsequently press her to. There was some degree of dispute between the Appellant and Ms Risbridger as to the circumstances surrounding the non-referral, and the judge did not resolve that matter beyond finding that Ms Risbridger "omitted to do so".
7. In January 2001 the Appellant met Ms Risbridger and made a reference to work load and stress levels, apparently in the context of the department as a whole. Later that year it was recorded that the Appellant was "doing 1.28 man jobs (excluding contract procurement and tendering)". During this period it appears to have been common ground that the Appellant's workload had increased and that there were anxieties within the department about proposed restructuring and the putting out of work for private tender.
8. In May 2002 it was recorded that the Appellant had not taken 13.5 days of his annual leave during the preceding year. On 4^th October 2002 the Appellant visited his general practitioner, who as a result wrote a letter dated 30^th October to Ms Risbridger. That letter stated that the Appellant's physical and mental health were suffering as a direct result of the "ongoing and difficult work environment". Although that letter was provided by the doctor to the Appellant soon after 30^th October 2002, he did not provide it to Ms Risbridger until 2^nd December 2002. They had a face to face meeting on 10^th December 2002.
9. On 7^th January 2003 Ms Risbridger passed on the GP's letter to the Occupational Health Unit. On 13^th January Dr Foddy examined the Claimant and noted that the Appellant was complaining that work related factors were contributing to his symptoms. It was recommended that a risk assessment be carried out with a review thereafter. Dr Foddy at that stage considered the Appellant to be fit for work. On 21^st January 2003 a risk assessment was carried out by Ms Risbridger and an action plan was drawn up with a view to minimising risks to the Appellant's health. The plan envisaged implementation dates for a series of action points which were noted.
10. On 30^th June the Appellant suffered a breakdown. His wife reported that he had been in an acute state of anxiety and crying all the previous weekend. The Appellant left work for the last time.
11. The judge's findings make clear that tasks set out in the action plan were not completed, nor was any review of action points undertaken before the Claimant's departure from work on 30^th June. In effect there had been a failure to put the action plan into effect.
12. In August 2003 the Appellant's wife told him that after thirty years of marriage she had formed a relationship with another man. Although Mrs Brown had confided in her mother about the relationship in May 2003, the judge found that the Appellant was unaware of this relationship until August 2003, accepting evidence from the Appellant to this effect. In October 2003 Mrs Brown left the matrimonial home. In September 2003 assessments of the Appellant's mental condition began to take place, culminating in the finding in February 2004 that he was no longer fit for work. As already stated 30^th June 2004 was the cut-off date selected by the judge in relation to damages flowing from the Respondent's negligence.

The Judge's Findings

13. The hearing before the judge took ten days. The Appellant was in the witness box for three days and medical experts, Dr Salter and Professor Dolan, were in the witness box for two days. After the ten day hearing the judge handed down in draft a judgment dealing with liability and general damages. Some three or four months later there was a further hearing dealing with certain matters relating to special damages. The judgment itself runs to about fifty pages, containing no paragraph numbers. A very large part of the judgment consists simply of the recitation of extracts from the evidence, documents and reports put in evidence in the case. The last ten pages of the judgment contain the judge's analysis of the law, factual findings, and conclusions.
14. The Appellant has been critical of, and the Respondent has acknowledged, shortcomings in the crafting of the judgment. We regret to say that we consider there is force in such observations. One of the issues for us to consider will be the extent to which such shortcomings undermine the validity of the conclusions to which the judge came.
15. In summary the judge found that by late 2002, when the Appellant delivered his GP's letter to Ms Risbridger, the Respondent should have foreseen that he was at risk of psychiatric harm associated with his work. He found that the Respondent was at fault in failing to implement and/or monitor the action plan which had been drawn up in January 2003 designed specifically to ameliorate the Appellant's problems. The Appellant's condition had deteriorated between late 2002 and the day he went off sick, namely 30^th June 2003. Stress at work made a material contribution to that deterioration, resulting in increasing severity of the symptoms which he experienced at that time, so that by 30^th June 2003 he fulfilled the diagnostic criteria for a severe depressive illness.
16. Thus the judge was putting a breach of duty as having occurred in early 2003, culminating in damage at or before 30^th June 2003. The judge went on to make specific findings about the breakdown of the Appellant's marriage. He did not accept that the Appellant's mental deterioration after 2^nd December 2002, when the GP's letter was handed to Ms Risbridger, caused the matrimonial breakdown. He made no finding about the effect which the Appellant's condition may have had on Mrs Brown prior to that date, although it must be implicit that there was no effect. As already stated, he accepted the Appellant's evidence to the effect that he was unaware of any problem with his marriage before August 2003.
17. In an important part of the judgment, the judge said:

"I conclude that the departure of Mrs Brown was a non-tortious event which occurred after the Defendant's breach of duty and which contributed to the psychological upset experienced by the Claimant for some time after August 2003.

Turning again to Hale LJ's judgment in Hatton at paragraph 36, [Hatton v Sutherland [2002] EWCA Civ 76: [2002] 2 All ER 1].

"Many stress-related illnesses are likely to have a complex aetiology with several different causes. In principle a wrongdoer should pay only for that proportion of the harm suffered for which he by his wrongdoing is responsible…"

"I have already found that the failure to implement/monitor the action plan made a material contribution to the Claimant's condition. From August onwards there was another factor at work. Can I disentangle the respective contributions to the Claimant's suffering in, say, the autumn of 2003 of the Defendant's default on the one hand and the departure of Mrs Brown on the other? I have no means of doing so.

Did the relative size of the contributions change over time? I think they must have done for these reasons:

(1) The Claimant responded well to anti-depressant medication.

(2) The psychiatrists are agreed that his prognosis after a first episode of depression would have been excellent.

(3) He normally would have been expected to return to work within months.

(4) The stress of work was removed following his retirement in 2004.

(5) Disputes over the matrimonial assets and the prolongation of these proceedings have dominated the Claimant's thinking over the last few years.

Am I satisfied that the claimed continuing loss of earnings has been caused by the Defendant's aggravation of Mr Brown's depression in the first few months of 2003? My answer is no.

Dickins v O2 Plc [2008] EWCA Civ 1144: [2009] IRLR 58 prohibits me from making a broad apportionment. I propose to award damages for loss of earnings for the period of one year from June 2003. This is in line with paragraph 46 of Smith LJ's judgment in Dickins…" [After a digression the judge continued] "Any continuing loss of earnings after June 2004 is not attributable, on my findings, to the default of the Defendants."

18. The judge went on to hold that the Working Time Directive and the Working Time Regulations 1998 added nothing to the case. Having considered the judgment of Ramsey J in Sayers v Cambridge County Council [2006] EWHC 2029: [2007] IRLR 29, he held that the Directive did not provide directly enforceable rights to individual employees and that Regulation 4 of the Working Time Regulations did not provide a cause of action for breach of statutory duty. Thus, he said that they took matters no further.
19. After the second hearing relating to certain issues of quantum, the judge ruled against a claim that from about April 2003 the Appellant should have been awarded a higher pay grading, PO5. This of course would have had an impact on the loss of earnings claim. The judge rejected this argument, holding that the Appellant at no stage made a complaint about his level of pay and that taking account of direct and hearsay evidence from Ms Risbridger it was most unlikely that the Respondent would have initiated a pay increase in April 2003.
20. The judge also considered whether the Respondent should have initiated a pay increase at that time, such a claim being founded upon an implied term of trust and confidence in the Appellant's contract of employment. He held that it was impossible to hold that in April 2003 such trust and confidence as the Appellant had in his employers was likely to be "destroyed or seriously damaged" by the Respondent's failure or reluctance to upgrade him. The consequence of this was that the loss of earnings claim was to be assessed by reference to pay grade PO3. This finding is the subject of a discrete ground of appeal.

Apportionment

21. Before I turn to the matters raised by way of appeal, I want to deal with one matter which is not raised. In the passage from the judgment cited above, the judge made reference both to observations of Hale LJ in Hatton v Sutherland and dicta of Smith LJ in Dickins v O2. There is a potential difference of approach between the two judgments as to the question of apportionment where there are both tortious and non-tortious events contributing to injury where that injury is indivisible. The judge adopted the (obiter) approach of Smith LJ in Dickins in holding that he would not make any apportionment in relation to the loss of earnings for the period of one year from June 2003. Such an approach is more favourable to the Appellant than that of Hale LJ in Hatton. The Respondent has not entered a cross appeal upon this point, but reserves its position as to the correctness of Smith LJ's approach. Since there is no point for us to resolve in this appeal on this issue, we have not heard any argument as to the correctness of either approach or a possible reconciliation between the two judgments. Accordingly, the resolution of any controversy that may exist on this point must await a case where it is truly engaged.

Breach of Duty

22. Turning now to the matters in issue in this appeal, the first area of challenge by Mr Green QC was to the judge's finding that the Respondent's breach of duty towards the Appellant, its employee, arose in early 2003 with the failure to implement or monitor the action plan. Mr Green's submission was that the judge should have found a breach of duty as having occurred around January 2000 when Ms Risbridger failed to refer the Appellant to the Occupational Health Unit after having said that she would do so at the appraisal meeting held with the Appellant. It was said that had the referral been made, it was likely that there would have been adjustments made to the Appellant's workload and his position would thus have been ameliorated, and so the harm which eventually befell him would have been avoided. It was acknowledged that there was a proper distinction to be drawn between stress in the workplace and actual harm done to health as a result of such stress.
23. The relevant law as to an employer's duty is not contentious. In Barber v Somerset County Council [2004] 1 WLR 1089, a leading authority on stress at work, Lord Walker adopted the statement of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Limited [1968] 1 WLR 1776 at 1778 as the best statement of general principle for this area of the law.

"…the overall test is still the conduct of the reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he knows or ought to know…"

24. It is clear from a reading of the judgment in this case that the judge approached the question of breach of duty not just by reference to what the Respondent knew, but also by reference to what the Respondent ought to have known. Accordingly, there is no argument that the judge failed to consider the correct test. However, the Appellant argues that the judge was wrong in finding that the breach of duty by the Respondent occurred as late as early 2003. He should have found that such breach occurred in early 2000 after the failure to refer to the Occupational Health Unit.
25. Mr Green argues that the matters already referred to in the chronology were such as to have put the Respondent on sufficient notice as to require it to take steps by the time of the January 2000 appraisal, and that its failure to do so is the point at which there was a breach of duty. Mr Green was at pains to underline that if he succeeded on this point it could not affect the award of the sum of £25,000.00 for general damages. The point was said to have a bearing solely on the question of the judge's cut off point for loss of earnings as being the 30^th June 2004. That this was so only emerged part way through Mr Green's argument, the matter having been raised much more opaquely in his grounds.
26. As I understood the argument, it was to this effect. If the judge had found a breach of duty taking place in 2000, it might have operated as a contributory cause to the breakdown of the Appellant's marriage. If a breach in 2000 was a cause or a material contributor to the breakdown of the marriage, then the judge's apparent conclusion that from June 2004 only the marriage, and not the work related matters, was the cause of lost earnings would have been different since the marriage breakdown could not be regarded as a separate matter for which the Respondent was not liable. Put more shortly, a breach in 2000 would be likely to mean that the marriage breakdown could not be disregarded as a factor unrelated to the Respondent's breach of duty. I have some difficulty in following the logic of this argument, but will proceed to deal with the assertion that the judge should have found that a breach of duty occurred in 2000.
27. The Appellant's complaint was that the matters recited in the chronology up to January 2000 were of a type which should have put a reasonable and prudent employer on notice requiring it to act effectively at that time to prevent damage to the employee's health. Mr Green points to the fact that, in his judgment, the judge made no explicit finding that the failure to refer to the Occupational Health Unit in early 2000 was not a breach of duty. The judge failed to deal with the point, and if he had dealt with it, he must have found that there was a breach of duty at that point.
28. Whilst it is true that the judge did not explicitly deal with the question of a breach occurring in 2000, he made a very clear and explicit finding that the point at which a breach of duty did occur was in early 2003. He did so in the context of having heard much evidence and argument about the events leading up to early 2003 and their implications for the Respondent's state of knowledge as to the need for action. Despite having heard those matters he came to a firm conclusion that breach did not occur until early 2003. In my judgment the terms in which he found breach at that stage should be seen as an implicit rejection of the arguments put forward for a breach of duty at an earlier point.
29. In coming to his conclusion, the judge had made express reference to the evidence he had heard from the Claimant's expert, Dr Salter, a psychiatrist. Dr Salter's evidence was that it was quite reasonable to define the general practitioner's report drawn to the attention of the Respondent in December 2002 as the point at which it should have begun to take steps to remedy the Appellant's difficulties. The judge, who had expressed some reservations about some aspects of Dr Salter's evidence, and who had made it plain that he did not feel obliged to embrace everything that Dr Salter said, said that he had no reason to differ from Dr Salter's analysis as to the point in time at which the employer's duty was engaged. This was particularly so since Professor Dolan, the Respondent's expert, had not offered an alternative. There was thus a sound evidential basis for the judge to come to his conclusion, based as it was on the expert evidence which had not been uncritically approached by the judge. Consistent with this finding was the evidence from the Appellant, recited earlier in the judgment, to the effect that it was only by mid to late 2002 that stresses at work started to become a serious problem and that he recognised that it was having a significant effect on his health. It was that which had led him to consult his GP in October 2002.
30. The judge had also referred to the evidence of a Mr Golledge, a work colleague, who conveyed the impression that the Appellant was a stoical person, and who was unaware of the Appellant becoming ill, whether because of stress or for any other reason prior to his breakdown in June 2003. Reference to the January 2000 appraisal file shows a reference to the Appellant's "incredible capacity for keeping going" and gives no indication that the headaches and heart palpitations mentioned by the Appellant were asserted to have been caused by work stress. There is no indication in that document that work stress was affecting the Appellant's health, and Ms Risbridger's decision to refer the Appellant to the Occupational Health Unit "for the record" is ambiguous as to the reason for referral.
31. It is also relevant to note that prior to December 2002 the Appellant appears to have had no material time off work at all. In these circumstances, there was a substantial body of evidence consistent with the judge's finding that the point at which the Respondent was required to intervene to protect its employee's health did not arise until December 2002.
32. As already explained above, the strength and clarity of his finding of a date in early 2003, implicitly rules out some earlier date. The evidence of what information was or should reasonably have been available to the employer at that earlier date is not of such a compelling nature as to lead to the conclusion that the judge has fallen into error in this respect. Accordingly, I reject the first ground advanced by Mr Green.

Causation

33. I next turn to causation. The Appellant argues that even if the judge correctly found that the Respondent's breach of duty occurred early in 2003 by reason of a failure to put into effect the agreed action plan, he did not properly approach the question of loss and damage resulting from that breach. It was submitted that the judge, having found a breach of duty, failed to perform the correct analysis. In particular he did not ask himself what the difference was between what would have happened if the Respondent had not breached its duty to the Appellant (by implementing the action plan), and what did in fact happen. If the judge had asked himself this question, he would have found that the implementation of the action plan would have improved the Appellant's working conditions and that he would have been able to continue working for the rest of his life.
34. Mr Green argued as follows. The judge had found that the financial effects of the Appellant's breakdown in June 2003 had continued until the end of June 2004. By the end of June 2004 the Claimant had lost the job which he had held for some thirty eight years. That was because of the breach of duty by the Respondent which damaged his health. It was his ill health which had arisen through the Respondent's breach of duty which caused his retirement after a finding that he would be permanently unfit to work. Thus the judge was wrong to impose a cut off point of 30^th June 2004: the finding that the Appellant was unfit for further work had been initiated in autumn 2003 when he was still suffering the effects of his June 2003 breakdown, and those effects were still operative when the decision to retire the Appellant was made in February 2004.
35. So, Mr Green argued that the judge had wrongly conflated the issue of general damages caused by the Respondent's breach of duty with the loss of earnings caused by that breach. He had in effect failed properly to consider a distinct point in relation to loss of earnings, and if he had applied the correct approach, should have found in favour of the Appellant. In the circumstances of this case the loss of the Appellant's job was properly attributable to the judge's finding of breach of duty and this should have been reflected in the head of damages for loss of earnings.
36. Mr Norris QC, for the Respondent, argued that in effect the judge had found that the breakdown of the Appellant's marriage represented a new cause of his psychiatric illness. That important factor would have meant that the Appellant would not have been able to work in any event. He acknowledged that the judge's findings cited in the passage earlier in this judgment were not happily expressed, but submitted that this finding was implicit in the judgment. In other words, quite apart from the psychiatric injury arising from the pressures of work and the failure to implement the action plan, the Appellant would have had a breakdown by June 2004 in any event arising from the breakdown of his marriage. Thus the consequences for the loss of earnings claim would have been the same.
37. In Mr Norris' submission, therefore, the judge's findings should be taken to mean that the Appellant would have had a breakdown at the end of June 2004 resulting from the collapse of his marriage at a time when the damage caused by the breach of duty in 2003 would have ceased to have any effect. Thus from June 2004 the non-tortious breakdown of the marriage would have been the sole operative cause of the Appellant's inability to work. Although the decision to terminate the Appellant's employment was made in February 2004 when work stress was still a factor, it was nonetheless implicit in the judgment that the Appellant would have lost his job because of the marriage breakdown.
38. I have to say that I am unable to read the judgment, as it is framed, in this way. The judge clearly found that from August 2003 there was another factor making a material contribution to the Appellant's mental condition. That was the breakdown of the marriage. The judge found that for a period after August 2003 he could not disentangle the respective contributions to that condition arising from the failure to implement the action plan and the end of the Appellant's marriage. The judge then identified five reasons which he said indicated that the contribution of the effects of the end of the marriage became the dominant factor and then the sole cause of loss of earnings. The points set out at paragraph 17 above, numbered (1) to (4), are the basis of a finding by the judge that the results of the work stress related breakdown in June 2003 reduced over time. The fifth point (disputes over matrimonial assets and prolongation of these proceedings) appears to represent the judge showing how the breakdown of the marriage had replaced the work stress as the relevant causative factor.
39. After listing those points the judge said that he was not satisfied that the claimed continuing loss of earnings had been caused by the Defendant's breach of duty in 2003. That conclusion was stated in a single sentence. The judge returned to the topic after a digression on the Dickins case by adding a further sentence.

"Any continuing loss of earnings after June 2004 is not attributable, on my findings, to the default of the Defendants."

40. To my mind, with the exception of the bald statement in the two sentences just referred to, the judge's process of reasoning is obscure, if not non-existent, and does not condescend on the sort of careful analysis which a complicated issue of this sort required. In passing I note that the reference to "the prolongation of these proceedings", (which the evidence of Dr Salter clearly shows is a reference to the present proceedings and not to a dispute over matrimonial property), would appear to import the work stress related breakdown as a material factor after 30^th June 2004 since that has been the central topic of these proceedings.
41. Despite Mr Norris' arguments to the contrary, I do not consider that the judgment as expressed can support his contention. It seems to me that for the Respondent to uphold the judge's decision, the judge would have had to have made a clear finding that the Appellant would have lost his job in any event as a result of mental damage caused by the breakdown of his marriage. The judge seems not to have asked himself what the position would have been if there had been no breach of duty in 2003 and no work stress related breakdown in June 2003. There is no finding that the effects of the marital breakdown were so severe that they would have led to dismissal in their own right. There is also no apparent consideration of the fact that the marital breakdown took place at a time when the Appellant was undoubtedly vulnerable and suffering from the effects of the work related breakdown. Those were important matters which needed consideration by the judge, but the judgment does not reveal that he gave any attention to them.
42. I find myself unable to spell out from the terms of the judgment that this Appellant would in any event have lost his job because of mental stress arising from his marriage breakdown notwithstanding the employer's breach of duty in relation to work related stress in 2003. The expert evidence, including that given by Professor Dolan instructed for the Respondent, had acknowledged that there was a need for consideration to be given to the Appellant's vulnerability after the breakdown on 30^th June 2003. I also note that the experts' joint statement shows that both experts agreed that events following the June 2003 breakdown, (the fallout from the end of the marriage), "exerted a further compounding effect upon the severity, duration and cause of the illness". The reference to "further compounding effect" indicates to me the need for the judge to have given particularly careful consideration to the inter-relationship of the two factors in play in this case.
43. Moreover, Professor Dolan's opinion was that the Appellant was probably well enough to work from mid 2005, whereas Dr Salter thought that the Appellant was still unfit for work at the time of his last interview in late 2007, and that he would not be fit to resume employment until about six months after the end of litigation. These matters do not seem to have been given clear consideration in the judge's ruling.
44. Although I am conscious that this judge saw the witnesses and heard the evidence over a long period, and although he made a robust finding on this issue, what is commended to us as an acceptable "broad brush" approach does not reveal a consideration of the issues or a chain of reasoning sufficient to underpin that finding.

Working Time

45. The Appellant's third point relates to Working Time. There was argument below as to whether or not the Respondent was in breach of the Working Time Regulations 1998. The parties' closing submissions as to the facts below were strongly opposed to one another. The judgment made no finding of fact in this respect. The judge held in effect that this aspect of the case did not add materially to the claim in negligence. He referred to the decision of Ramsey J in Sayers v Cambridge County Council. Neither party questioned the correctness of that decision in which it was held that (1) the Working Time Directive is not of direct effect and gives no freestanding rights to individual workers (see paragraph 312); (2) no freestanding private law action arises for breach of statutory duty under the Working Time Regulations (see paragraph 282).
46. Mr Green did not seek to argue to the contrary, but said that matters relating to working hours would be relevant and supportive as relevant factors in considering whether an employer was under a duty to act to safeguard the health of an employee and whether it was in breach of such duty. It is of course wholly impossible for this court to form any conclusion as to whether there was a breach of the regulations. In the light of my finding on the first issue in this appeal and in the light of the judge's finding of a breach of duty towards the Appellant in 2003, it does not appear to me that in the circumstances this issue has any material contribution to make to the resolution of this appeal. It seems to me to be irrelevant.

Grading

47. The final ground advanced before us relates to the grading of the Appellant's work. As stated he had been graded PO3 in 1998, but since then his workload had increased. The Appellant's argument was that as a result of the action plan which should have been put into effect in 2003 (but which the Respondent failed to implement), there would or should have been a restructuring which would have led to an upward re-grading of the Appellant's post. The judge should have found that the Respondent would have been obliged to re-grade the Appellant within a reasonable period after March 2003. By reason of the implied term of trust and confidence between employer and employee (as discussed in Woods v WM Car Services (Peterborough) Limited [1981] ICR 666 at page 670), the employer should have upgraded the Appellant to a higher pay grade.
48. Although the judge had made a clear factual finding that the Appellant had not sought an upgrade and had accepted evidence from Ms Risbridger that it was "most unlikely for identified reasons that [the Respondent] would have initiated a pay increase for the Appellant", Mr Green relied on the January 2003 action plan as promising a restructuring which in turn would probably have led to an upward re-grading or at least, if implemented, would have given the Appellant a measurable chance of such re-grading. Having made the findings already referred to and having cited the claim based upon the implied term of trust and confidence, the judge said this:

"It is the fact that neither in April 2003 nor at any prior time did the Claimant make complaint about the level of his pay. He did not incorporate any complaint about pay in the Action Plan nor is there any evidence of his making complaint in early 2003 whether orally or by any other means. In those circumstances I find it impossible to hold that in April 2003 such trust and confidence as the Claimant had in his employers was likely to be "…destroyed or seriously damaged" by the Defendants omission/failure/reluctance to upgrade him."

49. The judge was no doubt focussing particularly on the Appellant's lack of complaint as a material factor in considering whether the implied term would be broken. Mr Green's position is that the judge should also have considered the matter from the standpoint of the action plan.
50. During the course of argument we were taken to the terms of the action plan. The action plan contains, (inter alia), two headings. One is "Significant Changes to Job". It reads: "Currently there is a high peak in workload/coupled with uncertainty over the future of the service. The workload issue can be partly addressed by the employment of agency staff (IT support). Workload issues will be addressed through restructuring." That action was to start from the end of March 2003. The second relevant section is entitled "Emotional Impact of Work". It states: "Ensuring correct work life balance is achieved through taking annual leave entitlement/delegation of work/responsibility sharing/recognition of his experience and skills…" That action was to be taken immediately.
51. Contrary to the submission made by Mr Green, I do not consider that the judge should have spelt out from those parts of the action plan an obligation on the part of the Respondent which, if fulfilled, would probably have led to the re-grading of the Appellant. The language of the action plan is to my mind far too general to support any such conclusion. The language used may be consistent with implementing means of reducing the burden on the Appellant and the pressures from which he was suffering, but no more than that.
52. Mr Green also complained that the judge had not resolved an evidential dispute between Ms Risbridger and the Appellant as to whether lack of literacy skills on the Appellant's part would prevent his upward re-grading. True it is that there is no explicit finding in relation to this matter, but the judge referred to the materials which he had considered and reached a clear finding that the Respondent would not have upgraded him. I do not think there is anything in this further point.
53. In my judgment, in the context of a situation where the Appellant himself, after the failure to implement the action plan, had never raised any matter relating to restructuring or re-grading by the time of his last working day on 30^th June 2003, the judge was justified in finding that the implied term of trust and confidence had not been broken. I would reject this ground of appeal.

Conclusion

54. It will be apparent that the Appellant has succeeded on the second of the four matters raised before us, but not on the other three. It seems to me that the consequence of this must be to allow the appeal in relation to the judge's findings insofar as they affect the issue of loss of earnings from 30^th June 2004. That issue is one which it would not be appropriate for this court to deal with, not least because we lack the necessary evidence and findings. The issue will have to be remitted to the judge so that he can further consider the question of the impact of the breakdown of the Appellant's marriage in relation to the finding that damages for loss of earnings cease with effect from 30^th June 2004.
55. I invite the parties to agree a form of order, and if there is disagreement about any consequential matter, to file written submissions with the court.

Master of the Rolls:

56. I agree.

Lord Justice Davis:

57. I also agree.
ORDER

1. Appeal allowed for reasons given in the judgment.

2. Any supplementary submissions from the parties concerning the form of order pursuant to the allowing of the appeal to be filed by 4.00pm Friday 2^nd November 2012.

3. The outstanding application in a related costs appeal (B3/2011/1758/A) is adjourned sine die pending the outcome of the re-trial or other resolution of the case, with liberty to apply.

4. The parties are jointly to notify the court of the progress of the proposed re-trial every three months.

Lord Justice Treacy

26^th October 2012