United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A GREEN (Of Counsel) Messrs McGoldricks 77 Park Lane Croydon Surrey CR10 1JG
For the Respondent	MR P STEWART (Of Counsel) National Association of Head Teachers Legal Department 1 Heath Square Boltro Road Haywards Heath W Sussex RH16 1BL


 


JUDGE LEVY QC: Before turning to the issues which arise on this appeal, there are two observations we wish to make. One is addressed to the Members of the Industrial Tribunal; the other to the Appellant's advisors. After the conclusion of the oral hearing in this matter, the Tribunal apparently found an authority which is referred to by those in a majority and by the Chairman, who is in the minority in the decision. It is not clear from reading the decision that the extra authority was determinative in the decision. If it was, the advisors of both sides should have been invited to make any submission on it which they thought appropriate before the Industrial Tribunal placed reliance on that authority. If it was not, that should have been made clear in the decision itself.

The observation which we wish to address to the Appellant's advisors refers to the bundles which have been prepared for this hearing. Apart from what we may call our normal EAT bundle which has been expanded to include the requested parts of the Chairman's Notes, we were handed two supplemental bundles, each stapled, one headed "trial bundle" and the other which commenced "Index to third bundle of documents prepared by the Appellant". Neither bundle was hole-punched or placed in a ring-back folder. Happily a ring-back folder was produced by the Court for the larger of the two supplemental bundles. The index of one of them was misleading, for example, the first item in the "trial bundle" reads "a bundle of pleadings and relevant tribunal documents" but the item itself, with odd numbers, only includes a couple of documents. The pagination of that bundle was not in conformity with normal pagination bundles in any court but in a manner which one can only say was bizarre.

Furthermore, the third bundle contained documents which, we suspect, must have been before the Industrial Tribunal below. It was necessary in the course of the appeal constantly to turn from bundle to another. Altogether the bundles could have been much better prepared and indexed for our use.

Ample notice is given of a date of a hearing before an Employment Appeal Tribunal. It is the duty of the Appellant's advisors to prepare bundles and indexes to those bundles designed to make the bundles as easy as possible for the use of this Tribunal. We fear that on this particular occasion we have not had the assistance which we are entitled to expect.

We now turn to the appeal itself. We start by saying it is a sad appeal by the Governing Body of St Bartholomew's Roman Catholic School ("the Appellants") against a majority decision made by an Industrial Tribunal after a hearing lasting some three days. The decision of the Tribunal was promulgated on 27 September 1996. The school is a Roman Catholic school in Kent. The Applicant to the Industrial Tribunal was the Head Teacher of the School, Sister Clotilde. Sister Clotilde who claims she had been constructively dismissed by the Appellants as a result of events which occurred in the summer of 1995.

We say it is sad because Sister Clotilde is in Holy Orders. We are told that she has not taught since she left the School and is now in a Jesuit Mission in the United States concerned with education. We understand that she will not personally benefit by any award made as a result of her success in the Industrial Tribunal. The case was therefore presumably brought because principles are at stake and the appeal, we suspect, is pursued for the same reasons. This litigation, with all respect, we think is sad, both for the School and the Church and all who work for either or both who are involved.

In summary, the facts which led to the application to the Industrial Tribunal are as follows: Sister Clotilde's employment at the School started on 1 September 1982. In 1994 the School became a public maintained school. There was a delegation of functions which are referred to at some length in the Industrial Tribunal's decision and upon which Mr Green, who appeared below and has appeared before us, has taken us through at some length. Perhaps for the purposes of this appeal, it is necessary simply at this stage, to focus on one page of the many documents, that which we find at the page numbered 5.1 of the bundle which is called "Trial Bundle". Headed Appendix A is a table showing how the School is controlled. The Governing Body of the School is at the apex. Beneath it is the Management Committee. Beneath that are many sprouts. That on the immediate left is the "Finance Committee". Below that there is a heading "Delegation to Headteacher", and below that "Items under £5,000 (any one item)". It is on the use of this delegated power by Sister Clotilde to make expenditure an item costing less than £5,000, that much of the difficulties have arisen which have led to the litigation. There are six other sub-committees under the control of the management committee. Five of these are shown on the table as not having power of delegation. That labelled personnel has power delegated to the Head Teacher.

The history which led to the breakdown of relations between Sister Clotilde and the School commences in 1994. A minute of the Premises Committee of the Respondents can be found in bundle 3; it is of a meeting held in July 1994, where there is an item headed "Childrens Play Equipment and Surfacing of Yards":

"We have a quote in for this from Merryden but need to get more quotes. Sister feels that we should get the kitchen up and running before committing ourselves on this as it will be in the region of £7,000 to £8,000."

We were taken through the succeeding minutes of this Committee by Mr Green. It appeared that after the Committee had been told that there was going to be a delay on children's play equipment and surfacing of the yard, the work was then done before any authorisation had been obtained from it. Mr Green submitted this was wholly improper action by Sister Clotilde. We were also taken through Finance Committee meetings from which it appeared that the allegedly improper expenditure had later been noted and minuted without comment. With great respect to Mr Green, insofar as this was the origin of the dispute which followed, it was a sad peg on which to build the foundation of his submissions.

The real trouble started, we think, following a meeting of the Finance Committee on 12 July 1995, the minute of which is found in the bundle called the "Third Bundle" at page 17. There we find there was a Finance Committee meeting held on 12 July where, under any other business, there is this reference:

"There was much discussion regarding the financing of the land for the proposed extension to the school playground."

In the last paragraph it said:

"The committee felt that there may be some money that could be saved from the budget and asked the headteacher to have a look at this to see what could be done. However, the headteacher said that there was no money available from the Annual Maintenance Grant as £25,000 had already been allocated to the new classroom."

The rest of the minute of the Finance Committee seems to be unexceptional. We note in passing that the governors report reference was made which was stated to show that the first year of grant maintained status of the School had been very successful and that the balance sheet showed a healthy position. Also that congratulations were expressed by the auditor to Mrs Austin, for her excellent work as Financial Manager. He was unable to fault her in any way.

That meeting having been held, an extraordinary meeting of the Management Committee was held on 24 July. The minutes of this meeting commence at page 2.1 of the "Trial Bundle". The Industrial Tribunal in its decision has set out the relevant part of these minutes at some length. We note that those present appear to include four Governors of the School who were not apparently on the Management Committee. They attended that meeting as did almost all of those who were on the Management Committee. That meeting was held when Sister Clotilde was on holiday. There are a number of passages in it which, when she received the minutes on her return from holiday, Sister Clotilde found unsatisfactory. They include:

"The governors decided that it should be recommended to the full board that no more money should be spent on the school unless ABSOLUTELY NECESSARY.

The governors felt that the library does not warrant the cost of using a computer as there is such a small number of children using the resources at any one time thus the amount of £6,000 allocated by Sr.Clotilde could be saved together with £2,000 allotted for the services of a technician who would also no longer be required.

It was felt that the school should contribute as much as possible towards the new playground as, if there were lack of funds towards the end of the year it was always possible to apply to the planned giving committee for help. If the parish help with funding now the school would not be allowed to compensate them from surplus money which may be available at the end of the financial year."

Then these paragraphs:

"The governors were concerned that Sr.Clotilde can spend up to £5,000 on anything she wishes for the school. They are also worried as to how it was possible for £9,500 to be spent on playground equipment without their prior consent. The minutes of the premises committee show that when last discussed at this level the decision had been made that there were not funds available and should be shelved for the time being. Concern was also expressed at the erection of the wall beside the infant block without prior knowledge or consent of the premises committee. It was stated that, in the future, any money spent on the school must have the prior approval of the Finance Committee.

It was proposed that sub committees should not be in a position to make final decisions but that proposals should always be made to the full governing body for approval even if this meant increasing the number of meetings per term.

It was decided that the Finance Committee should draw up a new budget in conjunction with Sr.Clotilde prioritising those items which are most important and presenting this to the full governing body.

The governors felt that the control procedures are not sufficient.

Whilst the governors were not criticising Sr.Clotilde who they felt gives her all to the school it was not just that she should have the responsibility of spending any amount up to £5,000 without the agreement of the governors. At Bishop Jukes parish visitation he stated that Sr.Clotilde should be relieved of all financial responsibility in the school, thus giving her more time for the important work of catering for the children, the parents and the staff.

There should be a stronger Finance Committee formed and governors should be more involved with the administration of the school especially in relation to Architects, estimates and builders.

The governors agreed that the headteacher should not undertake any further offering of books etc and equipment, or other resources without prior consultation with the governors."

The end of the minute, which has not been photocopied on our copy, provided that the date of the next meeting of the Management Committee was fixed for 4 September 1995.

Although this was a meeting of the Management Committee, the minutes are redolent with expressions of opinion by the Governors. Mr Green pointed out that the minutes were prepared by "an amateur clerk" and not by a "professional". As this would have been known to Sister Clotilde, he submitted that she should not have thought she was subject to directions from the Management Committee and should have construed the minute accordingly.

Sister Clotilde, far from happy at what she read, responded to the minutes by sending a document (found at page 48 of the bundle) by way of memorandum to those who had been present at the meeting. Parts of the response read:

"Response to the Minutes of the extraordinary meeting of the Management Committee, St Bartholomew's School, Swanley, held on 24 July 1995

(2) The function of Governors Committees

The Minutes state that all decisions should be made by the full Governing Body. This runs counter to the Terms of Reference drawn up and approved by the Governing Body: a Committee surely cannot overturn these.

(3) The role and the authority of the Head Teacher

Many statements in the Minutes indicate a wish

(i) to control the Head Teacher's management activities undertaken on a day to day management basis and

(ii) to exclude the Head Teacher from participation in reaching financial decisions, the acquisition of resources, and ensuring and procuring staff professional development.

My contract of employment as the Head Teacher charges me with the internal management of the school with responsibility for the quality of teaching and learning, the deployment and line-management of the staff, the quality and availability of resources, the professional development of staff and providing sound advice to Governors.

.....

To do the job effectively and well the Head Teacher needs sufficient scope to manage. While it is completely accepted that the Head Teacher is accountable to the Governing Body, the decisions recorded in these Minutes effectively block realistic management action.

The decisions made at the meeting on the 24 July 95 take no account of the management role of the Head Teacher and of the responsibilities that this role imposes.

If they are to stand they make the job impossible. The professional standing, expertise, experience and integrity of any Head Teacher would be completely undermined and disregarded if s/he has to operate under the conditions laid down in these Minutes.

The meeting was held without me..."

Sister Clotilde then required that the meeting be recognised as invalid and the minutes of the meeting be revoked. She includes a three-page schedule dealing with the points in the minutes, her response and the action which she had taken.

The response to that letter was, in our judgement, and in the judgement of the majority of the Industrial Tribunal, very unhappy indeed. It is found at page 46 of the EAT bundle; it is a memorandum from Father Hetherton, Chairman of the Governors. It is undated but it is common ground the date on which it was sent was 1 September. Father Hetherton had advice over the weekend during which it was written. In his address to us, Mr Green accepted it was an unfortunate letter in many respects. Effectively that letter refused the request which Sister Clotilde had made and concluded:

"I regret that you consider the nature and contents of the minutes which are part of the Governors ongoing attempts to improve control and accountability to render your position as Headteacher untenable. I believe that you have contributed a great deal to the development of the St Bartholomew's School and invite you to reconsider your position on this issue."

Sister Clotilde's response to this letter was by a letter dated 4 September which was delivered to Father Hetherton's house. That was the date when the Management Committee was due to reconvene. The letter was short. It said:

"I hereby tender my resignation as Headmistress of St Bartholomew's School from 29th August.

I am very sorry to leave in such circumstances, but as a result of the Governors' meeting of the 24th July and the ensuring correspondence I feel my position as Headteacher is rendered untenable."

The sequence of events thereafter is not entirely clear. It is clear that Father Hetherton wrote to Sister Clotilde a letter dated 4 September (but written later) which reads:

"It is with sadness that I accept your letter of resignation which I received yesterday. The Governors would like to express their sincere thanks and gratitude for the many hours of hard work you gave to the school. They feel that it will be difficult to find a Head as committed and dedicated as you were. You set a high standard in the school both for the staff and children. The work load you undertook was colossal.

We wish you well in your resignation as Head and hope your future years will bear much fruit for yourself and the Church."

Apart from receiving that letter on 6 September, Sister Clotilde had written a letter offering to withdraw her resignation, having been advised to fight the issues within, but at the meeting of the Management Committee, held on 4 September, her resignation had been accepted. Father Hetherton's final response, which was dated 8 September, informed Sister Clotilde that the full Board of Governors had met on 7 September and agreed to ratify the Management Committee's decision and to accept her resignation which had already been presented.

At the Tribunal below Mr Green, as we have said, represented the School. A solicitor represented Sister Clotilde. Mr Green has said that certain agreements were made between himself and the solicitor advocate for the School, of which it was not clear that the Industrial Tribunal were told. We have some Notes of Evidence - both of Sister Clotilde's cross- examination, and we think evidence in chief. We also have notes of the Chairman relating to submissions which were made. The notes to which we wish to refer are found at the tail end of our "normal" bundle, page 70:

"I have no note, however, that Mr Poole [solicitor for Sister Clotilde] submitted or referred in any way to an argument that the employers had repudiated the contract by formulating and airing criticisms of the Applicant at the meeting of the Management Committee of 24 July 1995 in the manner recorded in the minutes thereof and commented upon.

Both advocates referred to a breach of the implied term of trust and confidence."

It is clear from reading the paragraphs of the decision following the findings of fact, that the majority, who were the Lay Members of the Tribunal, concentrated their attention on the issue as to whether there was a breach of the contract of employment by the School, which Sister Clotilde was entitled to accept. It is apparent though from reading the passages which we have read in this judgment, that what the case really turned on was whether the trust and confidence, which is necessary between an employee and the employer, had in fact been lost in the events which happened between 24 July and 4 September. In that connection the decision to which the Tribunal referred (and which was not cited to them) is of assistance to us as it was to them. The decision is Warns and another v The Trustees of Cheriton Oddfellows Social Club [1993] IRLR 58 an EAT case given by Knox J. A passage in the judgment at page 59 paragraph 8 reads:

"The Industrial Tribunal distinguished the decision in Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84 which was cited for the proposition that there is an implied term in any contract of employment that the employer will not without reasonable and proper cause conduct himself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the parties. The proposition was in terms accepted, indeed it is clear law, but it was held not to be applicable because, although the Industrial Tribunal found that members of the committee acted unreasonably at the annual general meeting..." [Mr Justice Knox then deals with the facts of that case.]

The real issue in our judgment which arose for decision in Sister Clotilde's application turns essentially on the issue raised by consideration of the documents and events which we have summarised. Was the result of them to destroy the implied trust and confidence of Sister Clotilde with the Appellants? That was not at the forefront of the reasoning of the majority as expressed in their decision, but we find, and we are satisfied, that that was what they must have had in mind.

Mr Stewart has referred us to the decisions of Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84 and also the decisions of British Telecommunications Plc v Sheridan [1990] IRLR 27 and Neale v Hereford v Worcester County Council [1986] ICR 471 which governs circumstances in which this court is entitled to interfere with a judgment decision of the Industrial Tribunal.

In our judgement Mr Stewart is right when he says that in deciding that Sister Clotilde had been unfairly dismissed, the majority reached a proper conclusion on the facts as found. We accept Mr Stewart's submission that there had been a breakdown in the confidence between Sister Clotilde and the Appellants. This led to her constructive dismissal, which the Tribunal found was unfair. As the Chairman in his minority decision came to a different conclusion, it is quite clear that a different tribunal as a whole could have come to a different conclusion, but Mr Stewart has submitted to us that the conclusion which the majority came to was one which was reasonable in the circumstances. We think that submission is right. There is a long and detailed Notice of Appeal by Mr Green on which he has elaborated in his Skeleton Argument and oral submissions. That approach is, with respect, too elaborate for the circumstances of this case.

The Appellant's Notice of Appeal is found at page 1 of the Trial Bundle. The grounds of appeal are in paragraph 6 of his Notice. After setting out the alternative bases on which the EAT can allow appeals from an Industrial Tribunal five grounds are identified, and particulars are given as alleged errors of the minority on each ground:

Ground (1) on page 2 deals with criticisms of holdings by the majority on the minutes of the Management Committee as 24 July.

Ground (2) on page 4 deals with criticisms of holdings by the majority on Father Hetherton's rejoinder.

Ground (3) on page 10 alleges an error of law by the majority for reasons given.

Ground (4) on page 11 alleges a misdirection because the dismissal arose not because of actions of the Governors but because of actions by the Management Committee or Father Hetherton, as Chairman of that Committee on the Governors.

Ground (5) on page 12 says the reasoning of the minority is to be preferred.

Although some of the particulars pleaded are factually correct, in our judgment the legal analysis of Mr Green's submission is flawed because it relies on an analytical analysis of the powers of the Management Committee and a breakdown of the contents of the minutes of the July meeting in a manner which ignores the reality of the factual situation.

Almost all of the Governors were present at the July meeting. Sister Clotilde gives, in our judgment, a reasoned response to the minutes. The rejoinder by Father Hetherton was intemporate and Sister Clotilde's resignation followed perhaps predictably. She had no reason to suspect that Father Hetherton did not have the support of the Governors and every reason to suppose he did.

In our judgment this disposes of the grounds of appeal but, in deference to Mr Green's submissions we will deal with some of the particular grounds in more detail. Particular (i) of Ground (1) of the Notice of Appeal reads:

"(i) The Respondent through her solicitor at the conclusion of the evidence explicitly abandoned the contention that there had been a repudiation of the contract of employment on the grounds of such criticisms which did not form part of the Respondent's complaint about criticism, which as particularised was restricted to three matters..."

Mr Green has taken us through the particulars given of criticisms of her on which Sister Clotilde relied. It is clear that the matters relied on were limited. However the majority were entitled on the evidence to reach the conclusion they did.

Mr Green has submitted that the majority were not entitled in law to adopt as a ground of their decision a matter that was not pursued by the parties. We are not satisfied that that ground was not pursued by the parties in the light of the passage of the Notes of Evidence which we have read.

Mr Green submits by way of illustration that the findings on the comments recorded in the draft minutes in relation to the Respondent's cheque signing limit as "criticisms" of Sister Clotilde was perverse. We do not agree. It is clear to us that there was a deliberate attempt, as was accepted by Father Hetherton in his response, to "cut her wings". We accept that the management of the School was provided for by the delegation of authority to the Head Teacher and Committees, but where a Headmistress had been able to get on well with the Governors over a number of years and then suddenly finds there is a complete change of tack with no or no adequate explanation, we can well understand that the breach of trust and confidence which, in a contract of employment between employer and employee required, has gone.

Ground (1)(iv) of the Notice of Appeal provides:

"The finding that any criticisms made amounted to the stated breach of contract was wrong in law or perverse in that:

(a) Any criticisms were not made by the Appellant, but by individuals on a Committee of the Appellant."

It is quite clear that a large number of the Governors of the School were on the Management Committee of the Appellants and Mr Stewart has sought to persuade us that a majority attended the 24 July meeting. In our judgment, at the relevant meetings, it was Father Hetherton who guided the Committee's decisions. In the light of those who actually attended the Extraordinary Meeting of the Management Committee held on 24 July and the terms of the minutes, Sister Clotilde was entitled to regard decisions and ??? recorded to be those of the Governors.

The submission that the individuals of the Committee were making criticisms, not the Appellants, seems to us to be technically correct, but in fact wide of the mark. It is right that the allegation was withdrawn that the criticisms were made deliberately in the absence of Sister Clotilde but the majority in their decision did not make a finding that they were so made. What they found was that the meeting was held when she was not there. They did not hold that it was deliberately held when she was not there.

Another part of the complaints made in ground (1) of the Notice of Appeal reads:

"(iv)(c) Even if any criticisms were in fact not well-founded, it was both reasonable and rational for them to be made. The Appellant and/or the said Committee was under a duty to monitor and appraise the Respondent's conduct, particularly in relation to expenditure. The proposition that any of the comments made by members of the Committee at the July meeting could have amounted to a breach or repudiatory breach of contract is unsustainable in law or perverse."

It is of course right that Members of the Management Committee are entitled to make comments and appraisals, but what has happened here is that comments and appraisals were made in Sister Clothilde's absence. The Sister replied to them. There was an intemperate reply from Father Hetherton to her comments. It was a matter for the Industrial Tribunal to consider whether, in such circumstances, there has been a breach of contract, or alternatively, whether the trust which is necessary between employee and employer has broken down. In our judgment the decision of the majority was open which was open to them on the facts as they found them.

The second main ground of appeal reads:

"The majority misdirected themselves in law and/or were perverse in finding that the Respondent had been constructively dismissed as a result of spending restrictions imposed on her at the July meeting (as recorded in what the majority called "Minutes" of that meeting), and by an undated letter written by the then Chairman of the Governors Father Hetherton ("the Chairman") at about the end of August 1985, in that:.."

The pleading then sets out several alleged errors. We do not think it would be helpful for us to go through these individually. We accept Mr Green's submission that the minutes were written by a lay person, not by a lawyer or trained minute taker, but they were expressed as being minutes of the Committee of the Appellant. In our judgement, paragraph 11 of the decision (reflecting the view of the minority members) contains findings of fact which present the key to the grounds of appeal. The paragraph reads:

"I find, however, that the Applicant could not reasonably have believed that the Governing Body had carried out these changes. She knew that it was the Management Committee only which had met on 24 July. She knew that she was employed by, and responsible to, the Governors as a whole. She must reasonably have been aware of the fact that nothing had been done by anybody to curtail her powers or to breach any express or implied term of her contract of employment. No resolutions had been taken at the meeting, and no action had been assigned to anybody as a result of it, or that would have appeared in the minutes. I cannot find, therefore, that a breach of the Applicant's contract of employment was within the contemplation of the Management Committee. Even if it had been, such breach had not become inevitable or anticipatory. The Management Committee had no express, implied or delegated power to bring about changes to the Applicant's contract of employment."

That is a view which the minority on the facts might well have been entitled to reach. However, the finding "that the Applicant could not reasonably have believed that the Governing Body had carried out these changes" is one with which the majority differed. It is a conclusion in which in our judgement they were entitled to reach on the evidence presented to them.

In one of the passages of this ground of appeal there is this passage:

"The only specific clear finding of fact as to what the Respondent believed is contained in the minority reasons [which we have read out]. The majority made no or no clear finding of fact about the Respondent's relevant belief."

In our judgment it is clear from the finding of fact of the minority that the majority reached the opposite conclusion. The minority decision is differing from this finding.

We turn to the third ground of appeal. This reads as follows:

"The majority misdirected itself in law in finding that in the circumstances of the case there had not been a constructive dismissal on the grounds that any breach had been merely anticipatory, because:

(a) They found that there had been an actual breach of contract (and not merely an anticipatory breach of contract), on the grounds that the Chairman led the Respondent to believe that a breach of contract had already occurred.

(b) What the Respondent was "led to believe" by the Chairman was irrelevant to the issue as to whether there had been an actual as opposed to an anticipatory breach of contract.

(c) Had the majority properly directed itself on its primary findings of fact or on the evidence it would have found that at most there had only been an unintentional anticipatory breach of contract, and that in such circumstances it would or should have found that the Respondent had not been constructively dismissed."

The ground has many legal merits on a technical analysis of the law of contract. However, in our judgement it leaves out of the equation the implied term which was found relevant in Warnes to which we have already referred. Further, in a decision on which Mr Green relied, namely The Post Office v Roberts [1980] IRLR 347, an Employment Appeal Tribunal headed by Talbot J which looked carefully at the judgment of Phillips J in Western Excavating (ECC) Ltd v Sharp said this:

"We would agree with Phillips J's statement that there may be conduct so intolerable that it amounts to a repudiation of contract. There are threads then running through the authorities whether it is the implied obligation of mutual trust and confidence, whether it is that intolerable conduct may terminate a contract, or whether it is that the conduct is so unreasonable that it goes beyond the limits of the contract. But in each case, in our view, you have to look at the conduct of the party whose behaviour is challenged and determine whether it is such that its effect, judged reasonably and sensibly, is to disable the other party from properly carrying out his or her obligations. If it is so found that that is the result, then it may be that a Tribunal could find a repudiation of contract."

In our view, the conduct of the Appellant (particularly as reflected in the minutes of the Extraordinary General Meeting on 12 July 1995 and thereafter following Sister Clotilde's return from holiday) was such that the majority were entitled to find that Sister Clotilde was disabled from properly carrying her obligations and thus there was a constructive dismissal, as they found.

We have not dealt with every single one of the submissions which Mr Green has made to us in the course of the two-day hearing of this appeal, but we are satisfied that the majority were entitled to come to the decision which they reached. It may be, as we have said, that a different Tribunal might have come to a different conclusion, but on the facts which were found, in our judgement, the decision is certainly not perverse and there have been neither such misdirections of law nor wrong findings of fact which would enable or entitle us to allow the appeal. It may be that if we had been members of the Industrial Tribunal we would have come to a different decision, but, as was shown by the cases to which Mr Stewart referred us, it is not for us to substitute our views for those of the majority, who concluded that Sister Clothilde was entitled to the relief awarded.

In these circumstances we dismiss this appeal.

We think it would be inappropriate in this case either to award costs of and occasion by the adjournment or to award costs of the appeal to the Respondent. This does not fall in the very small minority of cases where this Tribunal makes such an order.