United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	MR A SMAIL (of Counsel) City Secretary's Department Council House Earl Street Coventry CV1 5RR


 


MR JUSTICE LINDSAY (PRESIDENT):

1. On the 29th October 1997 Mr Sears presented an IT1 complaining of breach of contract, constructive dismissal and unfair dismissal. He had been a teacher employed by the Respondent, Coventry City Council, at their Sidney Stringer School and Community College. His employment had ended on the 31st August 1997. His IT1 appeared also to include as respondents "City of Coventry Education Service" and 3 individuals there and "Sidney Stringer Community Technology College" and 5 individuals there. In the event only the City Council has been treated as a Respondent and its IT3 it first denied that it had dismissed Mr Sears but, alternatively, alleged that, if it had, then he had been dismissed on capability grounds. He had, said the Council, failed to attend work from the 18th June 1997 and was in breach of contract for not covering his absence with sickness certificates, a repudiation of his contract which, said the Council, it had the right to accept. The Council, whilst denying it, asked for particulars of the constructive dismissal which Mr Sears had alleged.
2. The matter was then heard over some 5 days in the Summer and Autumn of 1998 before the Employment Tribunal at Birmingham under the Chairmanship of Mr J. Parkin. In a very long decision of some 26 pages of close typing the Tribunal set out its Reasons. Its decision, sent to the parties on the 28th October 1998, was as follows:-

"The unanimous decision of the Tribunal is that:

(i) The Applicant was unfairly dismissed but is not entitled to any remedy; and

(ii) The Applicant's claim for wrongful dismissal and damages for breach of his contract of employment is dismissed."

3. On the 7th December 1998 Mr Sears lodged a Notice of Appeal of great length with attached sheets adding further to its length. At the Preliminary Hearing at the Employment Appeal Tribunal on the 9th July 1999 Mr Sears had the assistance of Counsel under the ELAAS Scheme and, with the clearer focus thus applied, the Employment Appeal Tribunal reduced the matters fit to go forward to a Full Hearing to two broad headings. It was, if we may say so, an example of how well the Preliminary Hearing system can work even when the case in question goes forward to a Full Hearing and we are grateful, as should be the parties, to Charles J and Mrs Marsland and Mr Thomas and to ELAAS for the care taken in identifying such parts of Mr Sears' case as appeared to be arguable. The consequence of that Preliminary Hearing and of a subsequent Directions hearing was that Mr Sears lodged an amended Notice of Appeal on the 23rd February 2000. It is the issues raised in that amended Notice of Appeal alone with which we shall be concerned but, in order to make those issues intelligible, we shall need to say something of the background.
4. Mr Sears came to teaching as a career relatively late; he had been an engineer and in management and financial services for a number of years but then qualified as a teacher in 1992 at the age of 49. He had a B.Ed in business studies. After a spell as a part-time economics teacher in 1992 he became a permanent full-time teacher at Sidney Stringer with effect from the 31st August 1993. Unfortunately his work soon attracted criticism and the amount of his time time-tabled to be spent on his specialist economics and business study subjects was reduced and the amount of his time ascribed to covering for other teachers was high. The Tribunal held him to be "very much a loner without close friends amongst the staff". The City Council had "capability/competence" procedures which were or were purportedly brought into operation. Criticism of Mr Sears became more intense, more formal. At the beginning of the new academic term in September 1995 Mr Sears suffered a nervous breakdown. He was certified unfit to work by his own G.P.. He was thereafter continuously certified unfit until May 1997. During that period he first received sick pay at his full-rate of pay then at half-rate and, from September 1996 no pay was given to him. His contract of employment, however, remained in place.
5. Whilst away sick Mr Sears prepared and lodged in July 1996 seven grievances directed to the conduct of four of his colleagues and, later, in November 1996, a further eight grievances which included complaints not only against three of those four but against a further four colleagues and the Governors of the School. The seven grievances worked their way through their prescribed stages.
6. Mr Sears, whilst away sick, had been seeing not only his own G.P. but the City Council's Medical Adviser, Dr Young-Hartman, who had confirmed his unfitness for work. However, upon examining Mr Sears on the 23rd April 1997, Dr Young-Hartman reported that he was now medically fit to return to his teaching post. Mr Sears' doctor's note had expired on the 7th May 1997. He did not return to work. He was asked what his intentions were. Mr Sears' own G.P., Dr Greaves, then produced a further Medical Certificate backdated but limited to expire on the 18th June 1997. The G.P. recommended "His return to work should be carefully planned to give him maximum support". No further Medical Certificate was received and on the 2nd June the Council's Area Personnel Manager, Mrs Roberts, wrote to Mr Sears a letter which included the following:-

"...... Please can I ask you to confirm that you are intending to return to your post at Sidney Stringer and that this will be on the 18th June. It is important that you do confirm this in the light of your reluctance to do so in your previous correspondence and in order that discussions can take place at the earliest opportunity to plan your return".

Mr Sears took a deliberate decision, held the Employment Tribunal, not to seek a further Medical Certificate from Dr Greaves. His response to the Council was that he would not even consider discussions to prepare for his return to teaching until all his grievances had been dealt with to his satisfaction. On the 25th June 1997 he was reminded that he was absent without authorisation. Mr Sears neither attended at the School nor provided any further Medical Certificates. On the 24th July 1997 he was sent a letter which the Tribunal held to be, in effect, notice of dismissal from the 31st August 1997. Mr Sears insisted in response that he had lost trust in his senior colleagues and that his grievances had not been adequately addressed. His employment ended on the 31st August 1997 and, as we mentioned, he presented his IT1 on the 29th October 1997 without having return to work at the School.

7. As issues emerging from that back-ground the amended Notice of Appeal presented by Mr Sears first asserts:

(i) The City Council broke its contract with Mr Sears in 1995 in ways compendiously described as "the 1995 breach";

(ii) It did so again in 1997 in "the 1997 breach";

(iii) Both of those were breaches of the implied term as to trust and confidence;

(iv) That the Employment Tribunal misunderstood and misapplied that implied term;

(v) That had they only applied the implied term as it is properly to be understood they would have found in Mr Sears' favour in point of contract;

(vi) Such a finding in his favour in contract would have entirely justified his action in failing to return to work after the expiry of Medical Certificates, would have led to the Council being liable for damages and would have shown him to have been dismissed in breach of contract and to have been constructively dismissed;

(vii) Moreover the Tribunal failed adequately to provide reasons showing why Mr Sears had lost these contractual issues and accordingly it failed the test in the well-known case of Meek -v- The City of Birmingham;

(viii) Accordingly the EAT should allow the appeal and either hold that there was a breach or were breaches of contract on the City Council's part and that he was wrongfully dismissed or constructively dismissed by the City Council or, second best, that the Employment Appeal Tribunal should remit such issues to the Tribunal for their fresh decision and for adequate reasons in respect of that fresh decision.

This approach from Mr Sears is entirely in contract and it is thus right that we should first look to the nature of the implied term as to trust and confidence.

8. The term has most recently and most authoritatively been discussed in Mahmud -v- BCCI [1997] ICR 606 H.L.. At p. 610 Lord Nicholls described the term in relation to the particular conduct then in issue (in that case conduct on the employer's part) as:-

".... the portmanteau general obligation not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in a manner the employment contract implicitly envisages".

His reference a little later to that trust and confidence being capable of being undermined by either employer or employee showed that he had in mind the implied term as providing a given standard of conduct for each side. He added, in relation to its breach (and with our emphasis):-

"The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances".

Lord Steyn in the same case at p. 621 again pointed out that whilst the implied term leads to reciprocal duties on employer and employee its major importance in practice lay in its impact on the obligations upon the employer. The language of the implied term which Lord Steyn found acceptable was (again with our emphasis) that the employer should not:-

"Without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee"

- see p. 621. Lord Steyn's reference to "calculated and" might be thought to have added a requirement absent from Lord Nicholls' formulation and, by reason of its use, in conjunction with the word "likely", of the word "calculated", never an easy word, not necessarily to require actual intent on the employer's part to destroy or damage the relationship but at least to require that that had been within the presumed intention of the employer if one were to apply to the employer the notion that a person will be presumed to have intended the natural and ordinary consequences of his acts or omissions. However, to add such a requirement will not usually and perhaps will never add a requirement beyond Lord Nicholls' reference to the need for the matter to be looked at objectively, a view which Lord Steyn in any event endorsed, as is plain from his observations at p. 623 c-e. There is thus in our view little or no difference in practice between the two descriptions of the implied term, which, no doubt, accounts for the ability of Lord Goff and Lord McKay (but not, at least expressly, Lord Mustill) to have agreed with both judgments.

9. We next need to examine what the 1995 and 1997 breaches were alleged to be and to look at the Tribunal's treatment of the questions of whether they were or either of them was a breach of the implied term of trust and confidence as that term has been so explained by the House of Lords.

"THE 1995 BREACH"

10. Mr Sears describes the allegations which make up "the 1995 breach" as the oppressive, irrational manner in which the Respondent's written process, "The Procedure for issues of Capability relating to Competence" was conducted between the 9th March and the 19th July 1995.
11. That procedure requires that matters should begin informally with the employee being advised of the areas in which he was failing in his performance. Then, if necessary, the formal procedure would begin with a letter giving the employee reasonable notice of a hearing, of the employee's concerns and of the standards not being met. "The employee will be given the opportunity to offer an explanation regarding his failure to meet the standard expected", says the written procedure. After the hearing a formal written warning might then be issued. The next stage (Stage 2, if there had been no sufficient improvement) would be a further formal hearing with a sub-committee of Governors. Stage 3 entitles the employee to appeal to another and different body of the Governors.
12. In Mr Sears' case the informal part of the procedure began with a meeting on the 9th March 1995. The Employment Tribunal held that six specific issues had been raised with him and that four weeks were set for improvement on his part. Mr Sears answered the Council by describing the issues raised with him as "Incredible". On the 17th March 1995 Mrs Mitchell, Head of Humanities, the department of the School in which Mr Sears served, composed a document listing her criticisms of Mr Sears. Mr Sears did not see it at the time. There was no requirement of the procedure that he should. On the 7th April 1995 the informal stage was extended by a further four weeks. On the 24th May 1995 three members of staff, of whom Mrs Mitchell was one, met in the absence of Mr Sears to discuss what progress if any Mr Sears had made. They concluded that the first formal stage, Stage 1, should be moved towards. Accordingly, on the 26th June 1995 Mr Lawley, a Deputy Head Teacher, wrote to Mr Sears notifying him that there was to be a formal competence hearing on the 12th July. The letter referred back to the six issues which had been raised with him at the informal stage. Mr Sears was then given a copy of the procedure and was told, as the procedure required, that he was advised that he should be accompanied by a Trade Union representative or a friend. Mr Sears did not require that assistance or at any rate attended the hearing without it, on the 12th and 13th July.
13. At that hearing much of the oral case against Mr Sears, put to Mr Kershaw who, as Head Teacher, was the adjudicator, by Mrs Mitchell or Mr Lynch (who was responsible for advance GNVQ courses, and hence had come into close contract with Mr Sears) derived from a second report of Mrs Mitchell dated the 11th July 1995 which Mr Sears had not then seen. There is no obligation in the written procedure that any such report, if prepared, should be disclosed to the teacher concerned although, needless to say, if a teacher were taken by surprise by the oral allegations developed at any such hearing he would be well placed to apply for an adjournment. No adjournment was sought by Mr Sears. The Employment Tribunal held:-

"Whilst taken aback at the detail and force of the allegations against him, the Applicant prepared his response overnight during the hearing and delivered it on the second day, believing that he had satisfactorily answered the very personal and varied allegations made against him. The issues raised were those originally set out in the 9th March 1995 meeting but with more detail provided by Mrs Mitchell and Mr Lynch".

Mr Sears is an intelligent man well able to protect his own interests and we have no doubt but that if he had felt unable to respond or had felt over-hastened in composing his response to the criticisms orally made of him at the hearing he would have forcibly made that point and would have pressed for an adjournment. There is no finding that he did either and he told us that he had not asked for more time.

14. The Head Teacher, Mr Kershaw, upheld the complaint against Mr Sears and so informed him by letter of the 19th July 1995, a first formal written warning. Standards expected of Mr Sears in the future were set out in the letter. He was told to contact Mr Lawley if he needed further clarification.
15. The formal written warning distressed Mr Sears. However, he met Mr Lynch to discuss the GNVQ courses on the 1st September 1995 and attended a teacher training day, preparing for the new Academic Term, on the 4th September 1995. It was shortly thereafter that he suffered his nervous breakdown to which we earlier referred.
16. Mr Sears' case, relative to the period 9th March to the 19th July 1995, was that the procedure had been abused and was oppressive. When we asked him why that was so, he then detailed 16 separate headings but, at their heart, as he himself argues, is the allegation that the two documents prepared by Mrs Mitchell dated the 17th March and the 11th July 1995 were unfair to him in their criticism and had been kept from him.
17. At first blush these complaints appear misplaced. Whilst the document of the 17th March 1995 was not shown to Mr Sears, its substance, held the Employment Tribunal, was openly presented at the hearing in July, albeit with more detail. As to the latter document, that of the 11th July 1995, much of the case orally presented at the hearing on 12th and 13th July was based on that document and so although Mr Sears did not see it he had the opportunity to meet the case which it developed. The written procedure makes no requirement that every document on the employers' side purporting to contain some sort of criticism of the teacher's competence should be disclosed to him. Mrs Mitchell's reports were, so to speak, used at the hearings as written notes from which the oral case for the "prosecution" was presented. One might perhaps thus expect them to be somewhat one-sided, even if they were (as to which the Tribunal made no finding). There was no finding that either in composing them or in failing to disclose them Mrs Mitchell or anyone else on the employers' side had been dishonest or malicious or that she had had some collateral purpose in mind other than the presentation of the case which she, as Head of Humanities, saw to be the case against Mr Sears. So long as Mr Kershaw had been independent and open-minded at the first stage hearing on the 12th and 13th July and in his issue of the first formal written warning on the 19th July, the fact that Mrs Mitchell's written views might have been ill-informed or prejudiced (even if they were), whilst no doubt disappointing or discreditable, would not have represented a breach of the Council's procedure, at any rate so long also as Mr Sears was given a fair opportunity to counter the oral case developed against him. As to that, his own evidence, as it would seem from the Tribunal's conclusions, was that he believed he had satisfactorily answered the very personal and varied allegations made against him. Nor was there any finding critical of Mr Kershaw's rôle as adjudicator.
18. Difficult as it might be to see there to have been any breach of the written procedure, even more difficult would it be to regard some shortcomings of Mrs Mitchell as to her reports (if there had been any) as representing matters which, looked at objectively, could be seen to be likely to destroy or seriously damage the degree of trust and confidence which Mr Sears as employee was reasonably entitled to have in the City Council as his employer.
19. However, turning from that prima facie view of the period from the 9th March to the 19th July 1995 and the events within it, we look to see what the Tribunal made of them.
20. There is some justice in Mr Sears' complaint (at some points at least) that the Tribunal mis-expressed the nature of the implied term as to trust and confidence. In discussing Mr Sears' submissions they said:-

"He relied upon the implied obligation to repose trust and confidence in an employee and further obligations (which are in reality and no more aspects of this main obligation) to be supportive and not undermine the employee and to be responsive to the employee's expressed concerns and anxieties".

Later, under the heading of "Unfair Dismissal" the Tribunal said:-

"Whilst there is no doubt that the Applicant at some time during his sickness absence (if indeed this had not happened long before and prior to his nervous breakdown) had completely lost trust and confidence in the senior management of the school, that is a very different matter from finding that the Respondent had failed itself to repose trust and confidence in him or had failed to support him or had undermined him".

Under the heading of "Breach of Contract" they say:-

"The Tribunal fully accepted the Applicant's submission of law that there was a basic implied term in every contract of employment that the employer would repose trust and confidence in the employee and also found in law an implied obligation in contract (akin to that under the law of tort) to take reasonable care of the employee's health and safety including his mental health".

Each of those descriptions of the implied term is, so far as it was material to the case at hand, inapt. The question should have been whether the employer's conduct had in all the circumstances been such that, objectively regarded, it was likely to destroy or seriously damage the degree of trust and confidence which Mr Sears as its employee was reasonably entitled to have in the City Council as his employer.

21. However, the Tribunal at other points held, in reference to matters including but not limited to "the 1995 breach", as follows:-

"..... The Tribunal did not find that the Respondent had acted in breach of its implied obligations under the contract of employment".

Later they said:-

"The Tribunal was not satisfied of any such breach by the Respondent whether a repudiatory breach or less fundamental .....".

Later they held:-

"As stated earlier, the Applicant's perception or interpretation of events which undoubtedly led him to a complete loss of trust and confidence in his own employers was often not justified in the view of the Tribunal and the Tribunal did not accept that the Respondent was itself in breach of duty so as to cause his loss of trust".

Later still and finally, they held:-

"All these factors militate against any breach of implied duty on the Respondent's part causing his illness. His claim for damages for breach of contract relating to loss of earning during employment fails".

22. The Tribunal, despite some inapt references, ".... did not accept that the Respondent was itself in breach of duty so as to cause his loss of trust" which, under the heading of "breach of contract", was presumably referring to "duty" as contractual obligation and was a plain indication in not inappropriate terms of the implied term as to trust and confidence not being found to have been broken. The nature of the implied term, though sometimes mis-expressed, was there shown to have been duly understood.
23. We have so far looked only at the chief components of "the 1995 breach", the handling of Mrs Mitchell's two reports. We will not deal expressly with the others of Mr Sears' 16 components. They include some accusations which have no basis whatsoever in facts found, such as that Mr Kershaw framed his first formal written warning to Mr Sears deliberately so as to aggravate Mr Sears' stress levels. Suffice it for us to say that the heart of Mr Sears' complaint as to "the 1995 breach" having failed, there is nothing to sustain the rest of the body of his complaints in that part of his case.
24. On a fair reading of the decision as a whole in relation to "the 1995 breach" we cannot say, as the Notice of Appeal would have it, that the implied term as to trust and confidence was both mis-expressed and misapplied. On a fair reading the implied term can be seen to have been sufficiently understood and was plainly held not have been broken. We should add that even if a harsher view were taken of the Tribunal's expressions as to the implied term, given their findings of fact as to the period which Mr Sears describes as being that of "the 1995 breach", the only possible conclusion that the Tribunal could have come to, had they invariably correctly expressed and understood the nature of the implied term in accordance with Mahmud supra, would, in our view, have been that the implied term was not breached.
25. Meek -v- City of Birmingham [1987] IRLR 250 CA contains Bingham L.J.'s oft-repeated dictum that decisions of Employment Tribunals:-

".... must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have lost and won".

Bingham L.J. went on to require of Tribunals a sufficient account of facts and of the reasoning:-

".... to enable the EAT or, on further appeal, this Court, to see whether any question of law arises ....".

We have already dealt with the question of law that arose but, as to the Tribunal's "basic factual conclusions" and reasoning, the Tribunal's very full decision gives every appearance of being a fair minded and conscientious setting out of the "story which has given rise to the complaint" in considerably more than outline. Apart from the weakness in the description of the implied term of trust and confidence, with which we have already dealt, and another defect we shall describe later, the Tribunal's reasons in our judgment stand up well and it would be not merely hyper-critical but false to suppose that the parties have not been told, with respect to "the 1995 breach", why they lost and won.

"THE 1997 BREACH"

26. The allegation here, as identified by the EAT at the Preliminary Hearing, was that the City Council, in breach of its obligations under the implied term as to trust and confidence, had failed to take proper steps to ensure that Mr Sears could return to work once he was medically fit to do so. Again the claim is exclusively contractual.
27. The subject cannot be understood without some reference to the grievances which Mr Sears raised whilst away sick. As we have mentioned, in July 1996 he raised seven grievances concerning Mrs Mitchell, Mr Lynch, Mr Lawley and Mr Kershaw. A grievance hearing, level 2, was held on the 15th and 16th July 1996 before a panel of three of the School's Governors. Of the seven grievances only one was upheld. That particular grievance was one looking to the past conduct of Mrs Mitchell and Mr Lynch at the time when Mr Sears had been teaching. It had nothing directly to do with his return to work after being medically fit to do so. The Governors, who gave their decision in writing on the 19th July 1996, held, as to that one grievance, that Mrs Mitchell and Mr Lynch had fallen below the appropriate level of professionalism in relation to classroom observations of lessons taught by Mr Sears and as to "feed-back" to Mr Sears based on such observation. On another of the seven grievances the Governors initially reserved judgment only to dismiss it a month or so later. Undeterred, Mr Sears raised a further eight grievances on or about the 15th November 1996 complaining of the conduct not only of Mr Kershaw, Mrs Mitchell and Mr Lynch but adding complaints against Mrs Shaw (who had taken notes of the grievance meeting of the 15th and 16th July) Mr Burrows, Departmental Personnel Manager, Mrs Roberts and Mrs C. Goodwin, the Chief Education Officer. The complaints included that Mr Kershaw and Mrs Mitchell from June 1994, either through malice or incompetence or both, had contrived to destroy Mr Sears mental health. Another of the new grievances was against the Governors, Mr Sears' view being that their failure to uphold his grievances had been perverse. "No reasonable group of people could possibly have come to those decisions on the presented facts" he said. He had, he said, lost trust and confidence in the senior staff and colleagues at the school.
28. A second grievance meeting was arranged and was spread, this time, over some three days on the 20th January, 22nd January and 18th March 1997. It was before an entirely different panel of Governors and dealt with Mr Sears' appeal against the dismissal of six of his seven original grievances. The panel declined to hear the eight new grievances as that was outside their terms of reference. Mr Sears, in his final address to this panel of Governors, thanked them for their patience. The Governors then gave their decision orally as follows:-

"Governors have allowed a very lengthy time for considering what is recognised to be your (Mr Sears) deeply held grievances. We believe that we have given a full opportunity for you Mr Sears to present your case and for the College to respond. After careful consideration of the evidence Governors have determined not to uphold the grievances presented at this hearing. We have taken account of the manner in which the College management have dealt with the issues raised. We are firmly of the view that the College followed the relevant procedures correctly and that the senior staff referred to in your grievances have behaved professionally and properly".

That was confirmed to Mr Sears in writing on the 28th March 1997. The letter to Mr Sears of that day ended:-

"The completion of this stage 3 grievance hearing represents the final stage of the College's grievance procedure".

The eight grievances raised on the 15th November 1996 do not seem to have met with further formal treatment.

29. Mr Sears did not make any formal application for the eight further grievances to be taken further and we do not understand any failure on the Council's part to have done so to have been complained of by Mr Sears at the Tribunal. In any event a number of the eight were in effect met by the Governors' conclusion on the appeal that the College had followed the relevant procedures correctly and that the staff referred to (as to those in the initial grievances) had behaved professionally and properly. Rather Mr Sears' complaint became that there had been a refusal on the Council's part to address the issue of trust and confidence and, as he put it to us, that, whilst it was essential for his mental health that he should meet with reasonableness, fairness and professionalism on the part of the School and its staff, the whole effort on the City Council's side was not to assist him but to destroy him. This extreme form of complaint goes well beyond the boundaries of "the 1997 breach" as identified at the Preliminary Hearing but before we turn to what the Tribunal held as to the relevant events in 1997 we first must record something of the Tribunal's view of Mr Sears.
30. The Tribunal, speaking of Mr Sears, said:-

"Sadly, he is so convinced of the rectitude of his own position that he can see nothing beyond his own side of things and his own perception becomes distorted".

The Tribunal held him to have been alleging a conspiracy in which were implicated Mr Kershaw, Mr Lawley, Mrs Mitchell and Mr Lynch at the School, together with Mr Smith (in charge of Humanities in the Lower School) and Mrs Wright (in charge of Humanities in the Upper School). Later he added Mrs Roberts, Mr Burrows and Ms Goodwin although, as the Tribunal held, Ms Goodwin never corresponded with him and although there was no evidence of her involvement with him. He added Mrs Shaw. Finally, held the Tribunal:-

"...the Applicant lost credibility in that, in putting forward in evidence what was in essence a conspiracy theory involving the behaviour of management and staff and later Education Services, he also suggested the school children were included in the conspiracy".

31. We have already cited a passage from Mrs Roberts' letter to Mr Sears of the 2nd June 1997 in which she asked him to confirm his return to the school in order that discussions could take place to plan his return. As to that the Tribunal held:-

"This was an extremely clear letter based upon a proper reading of Dr Greaves' letter which implied that the Applicant would again be fit to attend as a teacher at the school once this further medical certificate had expired but that there should be careful planning for his return".

In response Mr Sears, though by now no longer protected by any medical certificate and hence, as the Employment Tribunal found, absent without authorisation, took the view that:-

"..... he would not even enter discussions to prepare for his return to teaching until all his grievances such as those raised in his letter of the 14th March 1995 Memo the 27th September 1996 letter and his six unsuccessful grievances had been dealt with to his satisfaction. He did not deal in any way with his medical position".

The City Council warned him but Mr Sears persisted with a view that unless and until all his grievances were met to his satisfaction he had little trust and confidence in the City Council as a Local Education Authority. Whilst ostensibly assuring the City Council of the intention on his part to participate in good faith in a course to lead to the regaining of his trust and confidence in the senior management of the school, he failed to respond to the invitation to turn up at the school to discuss plans for a return. On the 24th July 1997 the City Council wrote:-

"The Governors and the City Council can not therefore accept a statement of willingness still with no indication of a return date or a doctor's note as reason to change the conclusion that you have no intention of returning to your post. Your actions have therefore been deemed to amount to resignation. Your effective date of resignation will be in line with the Teachers Pay and Conditions Document i.e. 31st August 1997".

Despite continuing correspondence into August Mr Sears never turned up at the school to discuss matters nor even proposed a date when he would and, as we indicated earlier, his employment accordingly ended on the 31st August 1997. This whole sequence, largely deriving from correspondence between the City Council and Mr Sears, was very fully set out by the Employment Tribunal, more fully then we have felt we have needed to do.

32. The finding of facts was, of course, a matter for the Employment Tribunal. We cannot begin to describe any of its findings of fact as vulnerable to a charge of perversity or to have been findings devoid of support in the evidence given and we therefore not only do but must accept those findings. There will, no doubt, be cases where an employee can validly say that his lack of trust and confidence in colleagues and immediate superiors is properly to be seen as a lack of trust and confidence in his employer. There will be other cases, too, where the history of breach by the employer is so bad that to invite an employee to talk things over could be seen only as disingenuous or as doomed to fail and hence to be an invitation that need not necessarily be responded to. However, here the Employment Tribunal did not, in point of fact, find this to be any such a case. Whilst parts of its decision were blighted, as we have explained earlier, with a mis-expression of the implied term as to trust and confidence, on a fair reading of the decision as a whole, as we have earlier referred to, the Tribunal did conclude that it was not satisfied that the Respondent was in breach of the implied term as properly understood. As we have seen when dealing with "the 1995 breach", the Tribunal did not accept that the City Council was in breach of duty so as to have caused a loss of trust and confidence in it by Mr Sears. As to other alleged breaches of contract, the Tribunal concluded that it was Mr Sears who was in fundamental and repudiatory breach by his continued failure either to provide fresh medical certificates or, despite his being given repeated opportunities to do so, to signify an intention to return to work or to attend to discuss his return to work.
33. There could well be debate as to just what practical steps could properly be required, as a matter of contract (which is alone what is here in issue) from an employer to facilitate the return to work of an employee recovered from a nervous breakdown; no doubt such steps would be likely to vary greatly from case to case but an employee who, like Mr Sears, fails, despite repeated opportunities, to attend at the place of work and to discuss plans for his return plainly courts dismissal as being in breach of contract. Even where an employee during a long absence on medical grounds believes that his employer has seriously damaged the degree of trust and confidence which the employee was entitled to have in the employer, it is likely to be dangerous for him not to attend to discuss his return once the medical grounds dissolve. The employee may find that when circumstances are objectively regarded that view of the employer's conduct is not shared or that the employer's conduct could or might change after discussion and that an olive branch would have been held out if only the discussion had taken place. Only in the case of the plainest past breach by the employer coupled with a manifestation of its intention not to repair but to continue in breach could the employee safely take it that his failure to attend to discuss a return would not be a breach of contract on his part. This, on the facts found by the Tribunal, was never such a case.
34. Not only do we not hold the Tribunal to have been perverse in its findings of fact, we are able to detect no error of law in its conclusions in this part of the case. To revert more specifically to "the 1997 breach" as it had been defined, we find no error of law in the Tribunal's conclusion that there was no breach of the implied term of trust and confidence in relation to the alleged failure of the City Council to take proper steps to ensure that Mr Sears could return to work once he had become medically fit to do so. Moreover, even had the Tribunal had in mind all along the nature of the implied term as illustrated in Mahmud supra, we cannot see that it could have concluded other than as it did.
35. So far as concerns alleged breach of the requirement exemplified in Meek -v- City of Birmingham supra in relation to "the 1997 breach", as we said earlier when dealing with the same subject in relation to "the 1995 breach", the Tribunal's reasons, in our judgment, stand up well and it would be quite false to suppose that the parties had not been told, with respect of "the 1997 breach", why they lost or won.

REMEDIES

36. Mr Sears asserts that at least twice during the hearing before the Employment Tribunal the Chairman orally indicated that there would be a separate hearing as to "Remedies". Mr Smail for the Respondent does not say otherwise and the Chairman himself, approached for his comments, accepts that there is merit in Mr Sears' point that there should have been a separate Remedies hearing.
37. We agree that would have been the proper course and that it was not followed. The Employment Tribunal did hold that the City Council's dismissal of Mr Sears was procedurally unfair. There is no appeal by the City Council against that conclusion but the Employment Tribunal moved on, improperly in the context, to holding that Mr Sears' contribution to that (procedurally) unfair dismissal was 100% and that accordingly there should be no monetary award in his favour. It did so without hearing him on the topic. Mr Smail argues that Mr Sears could have had nothing new to say on the issue and that the Tribunal's finding as to 100% contribution was correct. That is not the point. Mr Sears should have been heard on the issue. We set aside the Employment Tribunal's conclusion as to Mr Sears' contribution to his own dismissal. We are not to be thought to be saying that it was not 100% nor that it should be this or that percentage or, indeed, any percentage; rather we are saying that it is a subject entirely for the Employment Tribunal but upon which Mr Sears and the City Council should have been heard, one for the Employment Tribunal then to determine in the light of the evidence and argument laid before it.
38. We remit the question of the remedy for Mr Sears' unfair dismissal to the same Employment Tribunal as before, we having established that the same Tribunal can be reconstituted. We remind the Tribunal that under the Employment Rights Act section 122 (2) and 123 (6) it is the conduct of the complainant, either before the dismissal (section 123 (6)) or even before notice was given (section 122 (2)), that the Employment Tribunal will have to consider. Evidence covering that period, including Mr Sears' conduct within that period, was looked at in considerable detail by the Tribunal at the hearings in the Summer and early Autumn of 1998 and unless the Tribunal so orders either at a Directions Hearing prior to the hearing of the remitted issue or at the hearing of the remitted issue itself, we do not think it will be either necessary or desirable for further evidence to be received by the Tribunal on this remitted subject but merely fresh argument.
39. The only remaining issue open to Mr Sears under his amended Notice of Appeal is whether there was error of law on the Tribunal's part in not giving him opportunity to be heard as to the City Council's allegation that it was he, Mr Sears, who was in repudiatory breach of contract for not attending work and not covering his absence with a sick note.
40. That subject, regarded as a matter of contract, is largely academic as there is no monetary or other claim by the City Council against Mr Sears and the question of Mr Sears' repudiatory breach is thus used by the City Council, so far as concerns liability and contract, only as a shield rather than as a sword. However, an examination of Mr Sears' conduct and of his obligations in contract may form part of the question, as to which the parties are to be heard at the remitted hearing, of how far, if at all, Mr Sears contributed to his own dismissal so as to justify a reduction of either the basic award or the compensatory award that would otherwise be made in his favour in respect of his (procedurally) unfair dismissal - see section 122 (2) and 123 (6) supra.
41. It cannot be claimed that evidence in this area was excluded and Mr Sears' own final submissions to the Tribunal included his recognition that the City Council's case had included an allegation that he had been in repudiatory breach of contract by failing to attend work and to cover his absence with medical certificates. It is thus not the case that he was not heard on the point. In the circumstances the Tribunal cannot be criticised for coming to a conclusion as to whether Mr Sears had been in repudiatory breach nor, in our view, was there error of law in their conclusion that he had been. The only material error in this part of the case lay in the Tribunal's failure to hear Mr Sears (and the City Council) on the effects or absence of effect of that contractual short-coming on the consideration of the reduction, if any, on just and equitable grounds under section 122 (2) and 123 (6). At the remitted hearing the parties will be given the opportunity, thus far denied them, to speak to that, but, as the evidential ground was thoroughly covered at the earlier Tribunal hearing, we see no need for further evidence in this area and so, again, unless the Tribunal otherwise orders, it will only be argument that is to be addressed at the remitted hearing.
42. We believe we have now covered all the issues open to Mr Sears under his amended Notice of Appeal. The unanimous decision of the Employment Tribunal, as we have said, had been that the Applicant was unfairly dismissed but was not entitled to any remedy and that his claim for wrongful dismissal and damages for breach of his contract of employment was dismissed. We set aside only the words "but is not entitled to any remedy" and we remit the question of remedy for unfair dismissal to the same Tribunal as before in the manner that we have indicated. Otherwise the appeal is dismissed.