United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR STEVEN JAMES UNWIN (Representative) Cornerstones 16 Haimes Lane Shaftesbury Dorset SP7 8AJ
For the Respondent	MS NATASHA JOFFE (of Counsel) Instructed by: Messrs Lovells Solicitors 65 Holborn Viaduct London EC1A 2DY


 


THE HONOURABLE MR JUSTICE RIMER

1. The first of the two appeals which are before us is one by Mrs Jane Unwin, who appeals against the decision of an Employment Tribunal sitting at Exeter on 3 December 2001 and chaired by Mr J G Hollow. The Tribunal's extended reasons were promulgated on 8 January 2002. Mrs Unwin, a former employee of Barclays Bank Plc ("the Bank"), had presented an originating application claiming that she had been unfairly dismissed. The Tribunal held, after a preliminary hearing, that she was not entitled to bring the claim on the ground that she had been continuously employed by the Bank for less than one year ending with the effective date of termination. Mrs Unwin appeals against that decision. She was represented before us, as she was before the Tribunal, by her husband. The Bank was represented by Ms Natasha Joffe.
2. Mrs Unwin commenced employment with the Bank on 31 July 1978 when she was about 18. She later married and had a family. In early 1998, she took a maternity break, during the course of which her employment contract was regarded as continuing. Under the Bank's terms of service she was also entitled to take a career break and she did so, returning to work after that break on 1 November 2000. She resigned less than one year later, on 4 May 2001, claiming to have been constructively dismissed.
3. The issue in the appeal is whether she is to be regarded as having been continuously employed by the Bank from 1978 to 4 May 2001, in which case she qualified to bring an unfair dismissal claim (indeed she so qualified in spades); or whether, as the Tribunal held, her career break broke the continuity of her employment with the Bank so that when she resumed work in November 2000 she did so under a new contract of employment, in which case she would not have qualified to bring an unfair dismissal claim.
4. We must first outline certain of the essentials of the Bank's career break scheme. It was one designed to allow certain eligible staff members to take a career break of up to two years "solely to provide childcare for their young children." In the case of women, the break had to be taken on the expiry of the maternity break. Section 1 of the scheme rules provided, amongst other things, that:

"All participants will be expected to have returned to full time working by the end of the 2 year period and should not apply unless this is their intention. They will be offered full time employment at the same level as prior to the Career Break.

All staff on the Career Break Scheme should give one month's notice of their intention to resume full time working, which can be at any time during the 2 year period.

Whilst on a Career Break staff can qualify for concessionary rates of subscription with the Chartered Institute of Bankers…"

5. The scheme was open to staff who had completed five years' service at the date of application, who had obtained a certain minimum grade, had satisfactory staff reports and a potential for further promotion. Female applicants had to apply, at the latest, when informing the Bank of their intended absence on maternity break. Section 4 of the scheme rules, headed "BREAK FROM WORK" opened by providing that:

"Staff on the Career Break Scheme who take a break from work will resign from the Bank on completion of the Maternity Break and be offered re-employment on return. They will not qualify for staff benefits during their absence although some flexibility will be allowed for Staff Accounts, Staff Loans and for pensions. On return to work pre-career break service will count as continuous in relation to staff benefits.

Participants will be required to work at least 2 weeks per year during the break and will be provided with a monthly information pack to enable them to keep in touch."

6. Section 4 (a) of the scheme rules provided that:

"Staff will be re-employed at the salary they would have been earning if they had returned to work immediately after the Maternity Break increased in line with any proportion of the Bar movement, for which they would be eligible."

Section 4 (b) provided that existing staff bank accounts would be continued during the break and that:

(ii) "Existing Staff Ordinary Loans will not be affected by the Career Break Scheme. Staff interest rates will continue to apply and monthly repayments will remain at the same level."

Section 4 (c) to (e) provided as follows:

(c) "Calculation of Pensionable Service

For a complete break followed by a return to full time work, service prior to Maternity Break will count as pensionable service, as will the period of Maternity Break, provided six months are served following the return from the Career Break.

(d) Temporary work during the Break

Any work carried out during the 2 year period will be carried out under a temporary contract and will not be counted as service for benefits or pensions.

(e) S.A.Y.E. / Sharesave

Participants in S.A.Y.E. / Sharesave must be in the employment of the Bank (full or part time) to exercise their share options."

7. Section 5 is not directly in point in the present case, since it applied to staff who worked part time during the break, which Mrs Unwin did not. It opened by providing that:

"Staff on the Career Break Scheme who work part time will have continuous employment and there will be a short term amendment to their contracted hours of work."

8. Mrs Unwin informed the Bank on 8 September 1997 that she would be commencing her maternity leave on 1 December 1997, that her last working day would be 28 November 1997, that her expected week of confinement was that commencing 18 January 1998 and that she wished to apply for a career break. On 27 April 1998, the Bank wrote to her acknowledging that she had confirmed she wished to take a career break. On 5 October 1998, the Bank wrote further to her and referred to the fact that she had earlier confirmed she wished to take a full time career break with effect from 2 November 1998. It enclosed three copies of 'Appendix 2' for her to sign, of which two were to be returned to the Bank agreeing to the break. The Bank added that:

"As you will be aware, whilst on the Break you will be required to work 2 weeks (10 working days) each year and this will be arranged on a temporary contract.

This should be organised by contacting your branch at least two months prior to the time you intend working. They will then advise us in order that we can arrange to pay you accordingly."

9. Appendix 2 was in the form of a letter addressed to the Bank which Mrs Unwin signed on 25 October 1998. It was headed 'LETTER TO BE SIGNED BEFORE COMMENCEMENT OF BREAK UNDER THE CAREER BREAK SCHEME' and read:

"Having been accepted onto the Career Break Scheme, I confirm that I have read, understood, and will comply with the terms and conditions of the Scheme, and that it is my intention to return to full-time work with the Bank within the maximum period of two years, as permitted under the Scheme.

Please, therefore, accept this letter as my formal notice of resignation from the Bank's service as at 2 November 1998. A copy of this letter has been retained for my records."

10. During her break Mrs Unwin did the two weeks' work required of her under a temporary contract. Apart from that she was not required to attend at the Bank's premises, nor to carry out any work for the Bank, and nor did the Bank pay her any salary. The Tribunal found that she could have taken temporary employment elsewhere, although we would observe that the purpose of the scheme was expressed to be solely to enable eligible employees to provide childcare for their young children. The taking of temporary employment elsewhere would or might be regarded as inconsistent with that and it is possible, although we express no view on it, that the taking of such temporary employment might cause the Bank to regard that as a breach of the terms of the scheme such as not to require the Bank to offer re-employment at the end of the break. No such point arises in the present case and we say no more about it.
11. Mrs Unwin resumed employment with the Bank on 1 November 2000, although only on a part-time basis. She was engaged under terms headed "ADDENDUM TO TERMS OF EMPLOYMENT" which said that her new working pattern would commence on 1 November 2000 and be until 31 January 2001. We interpret that document as being an addendum to Mrs Unwin's original contract of employment which she had signed on 16 May 1978. She resigned from the Bank, as we have said, on 4 May 2001, claiming to have been constructively dismissed.
12. The right of an employee not to be unfairly dismissed by an employer is conferred by section 94 (1) of the Employment Rights Act 1996, but that right is qualified by section 108(1) of the Act which provides:

108 "Qualifying period of employment

(1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination."

13. The effective date of termination in Mrs Unwin's case was 4 May 2001. If she is to be regarded as having been continuously employed by the Bank since she started with it in 1978, then that length of service qualified her, as we have said, to bring an unfair dismissal claim. If, however, her two-year career break is to be regarded as having interrupted her service, so that she was engaged under a new contract of service in November 2000, enjoying no continuity of service in the meantime, then she failed to qualify. The question before the Tribunal, and now before us, is which of the two alternatives is the right one.
14. Section 210(5) of the 1996 Act, which is in a Chapter headed "Continuous Employment", provides that:

(5) "A person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous."

That presumption is in Mrs Unwin's favour, but the subsection itself shows that it is rebuttable.

15. Subject to a particular point of difficulty to which we shall come, we regard it as clear from the terms of the career break scheme that the way it worked was that participating employees resigned from the Bank at the commencement of the break and were re-employed by it on resuming work at the end of the break. Consistently with this, the letter which Mrs Unwin signed on 25 October 1998 was a letter of resignation from service with the Bank. That had the effect of terminating her employment on 2 November 1998. That was the effective date of the termination of the service she had commenced back in 1978. When she resumed employment in November 2000 it was, we consider, under a new contract of employment. In our view, subject to the point which is at the heart of this appeal, all this points to the conclusion that Mrs Unwin enjoyed no continuity of employment during the period of her career break. That was the Tribunal's conclusion.
16. On this appeal Mr Unwin has advanced a number of points which he says suggest a different conclusion. He relies on the fact that the Bank did not return Mrs Unwin's P45 to her when she started the break and says it follows from that that the Bank was not in fact accepting her resignation, which therefore did not take effect as a resignation at all. We do not, however, consider that we can rely on that since the point, which is essentially dependent on relevant evidence, was not put to the Tribunal on the hearing of this preliminary issue.
17. Similarly, Mr Unwin relies on a witness statement made by Mrs Stevens, a bank resource co-ordinator for the Somerset area, in which she had said:

"The career scheme run by Barclays allows an individual to take up to two years as a break from full time employment. The individual is required to resign but on returning they are deemed to have continuous employment with their employment prior to their career break. The period of their career break also counts towards their continuous employment."

What, asks Mr Unwin, rhetorically, could be clearer than that? We accept that, taken at face value, that statement lends support to Mr Unwin's argument. However, again, Mr Unwin acknowledges that that statement was not in fact used in evidence by either side at the preliminary hearing which resulted in the decision giving rise to this appeal. The only evidence at that hearing was a bundle of agreed documents which did not, we understand, include this statement. The statement was only used at the substantive hearing which followed it, which is the subject of the second appeal before us and to which we will come, although in fact it was not, as it seems to us, of direct relevance to the issues raised on that appeal.

18. Mr Unwin also told us that in cross-examination Mrs Stevens said that she had explained to staff generally that that was how the career break worked, although Ms Joffe, for the Bank, does not accept that that is an accurate account of the way the cross-examination went. Having recorded what Mr Unwin has to say about it, we will say simply that again we do not consider we can or should pay any regard to that material since it was not before the Tribunal for the purposes of the preliminary hearing giving rise to this appeal and there is no application to us for leave to adduce fresh evidence.
19. In our view, however, the real point at the heart of this appeal is that arising under section 212 (3) (c) of the 1996 Act, which reads:

212 "Weeks counting in computing period

(1) Any week during the whole or part of which an employee's relations with his employer are governed by a contract of employment counts in computing the employee's period of employment.

…

(3) Subject to subsection (4), any week (not within subsection (1)) during the whole or part of which an employee is –

(a) incapable of work in consequence of sickness or injury,

(b) absent from work on account of a temporary cessation of work, or

(c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose…

(d) …

counts in computing the employee's period of employment.

(4) Not more than twenty-six weeks count under subsection (3) (a)…between any periods falling under subsection (1)."

20. On the footing, as we are disposed to accept, that during the currency of the career break no contract of employment was in force between the Bank and Mrs Unwin, we consider that there can be no question of section 212 (1) having any application to the present case. However, 212 (3) applies to cases not within 212 (1); and since "employee" can, by the definition in section 230 (1) of the 1996 Act include an individual whose contract of employment has ceased, it is capable of referring to an employee such as Mrs Unwin, even on the assumption that her initial contract of employment with the Bank was terminated on the commencement of the career break scheme. This is confirmed by the decision of the Court of Appeal in Curr v Marks & Spencer Plc [2003] IRLR 73, in which, in paragraph 30, Peter Gibson LJ said:

30 "…The clear purpose of s.212 (3) was to extend what was meant by continuous employment under a contract of employment to include certain periods where there was no employment under a contract of employment if the specified conditions were satisfied."

There is, in our view, no doubt that during the career break Mrs Unwin was "absent from work" within the meaning of section 212 (3) (c. The question is whether she was so absent "in circumstances such that, by arrangement… [she] is regarded as continuing in the employment of [the Bank] for any purpose…"

21. We consider that the answer to that question is that she was. Although the Tribunal's conclusion was that during the break Mrs Unwin's employment could not be regarded as continuing for any purpose, we find it difficult to see why it was not at least regarded as continuing for the purposes of the concessionary rate of subscription to the Chartered Institute of Bankers, which we infer was only available to bank staff, and also for the purposes of the continued benefits enjoyed by staff in relation to their bank accounts and ordinary loans with the Bank. In particular, the latter were loans under which staff alone enjoyed concessionary terms and what the scheme provided was that the employee taking a career break should be treated as continuing in employment for the purpose of enjoying those concessions. In our view, those provisions, though modest in quantity, show that under the scheme the employment was regarded as continuing in force, at least for certain purposes, and that is sufficient to enable Mrs Unwin to satisfy the requirements of section 212 (3) (c).
22. The Tribunal's findings of fact about the bank accounts were set out in paragraph 4 of their reasons, where they said:

4 "The bank had strict rules to which all employees were subject governing the conduct of the personal banking accounts. We need not deal with them in great detail but for our purposes it is sufficient to note that an employee was required to maintain his or her bank account with the bank and was not allowed to incur any debt by way of overdraft or otherwise without prior sanction from the bank. Those rules remained during the currency of the career break."

And then later on, in paragraph 11 of their extended reasons, they said:

11 "The banking arrangements seemed to us to be matters of contract, if they are contract, akin to the relationship between a bank and its customer rather than a contract of employment."

23. Ms Joffe, in her very clear submissions, submitted that it is not enough to point to a treatment of an ex-employee on a career break in a particular way, being treatment which is similarly enjoyed by all employees indisputably in employment, and thereby conclude that section 212 (3) (c) is satisfied. She relies in particular on the example given by Peter Gibson LJ in paragraph 32 of his judgment in the Curr case as illustrating that. We entirely agree with that in principle and we accept Ms Joffe's submission that there may be something of a spectrum of activities as between the Bank and the former employee, some of which will point to section 212 (3) (c) being satisfied and some of which will not. However in this case it appears to us tolerably clear from the career break scheme's terms that the Bank was effectively saying to Mrs Unwin and others on a career break that, for the purposes of concessionary subscriptions to the Chartered Institute of Bankers and the operation of bank accounts and ordinary loans, she was to enjoy the continuing rights and to be subject to the continuing obligations of an employee of the Bank. In our view, that discloses a clear purpose for which the employment was being regarded as continued, since but for that Mrs Unwin and other career break employees would not be entitled to such benefits or subject to such obligations. We have decided that the Tribunal's conclusion that the banking arrangements were simply akin to a normal banking/customer relationship was in part inconsistent with their own earlier finding of fact in paragraph 4 and also erred in law in not recognising the particular features we have referred to as bringing this particular case within section 212 (3) (c) of the 1996 Act.
24. In those circumstances we propose to allow Mrs Unwin's appeal and to set aside the Tribunal's decision that she did not have sufficient continuity of service to pursue a claim for unfair dismissal.
25. We should perhaps comment that we are a little unhappy about the manner in which this particular issue was dealt with by the Tribunal. The point about continuity of service was not taken by the Bank in its IT3 and the parties had attended before the Tribunal on 3 December 2001 in order to embark straight into a substantive hearing of Mrs Unwin's unfair dismissal claim. However, the Tribunal itself had spotted that there was this point on the continuity of employment, it raised the point itself and suggested that it should be taken as a preliminary point. There was then a short break so that the parties could consider their position, and that is what then happened.
26. That does not, with respect to the Tribunal, appear to us to have been entirely satisfactory. Ms Joffe was of course well able to look after her client's interests and indeed did so with signal success. Mr Unwin, who was representing his wife, is not a lawyer, although we should pay tribute to his grasp and comprehension of all the legal issues arising in relation to this appeal, so that he was close to being an equal match for Ms Joffe. But nevertheless he was a layman faced with a proposal that a question of law should be taken as a preliminary issue. He does not, so far as we understand it, appear to have raised any objection to that, but we have been concerned as to whether it was appropriate to embark upon this issue without enabling the parties to call all such evidence as might be directly relevant to it, or as they might think fit; and for the Tribunal to have effectively bounced this preliminary issue on the parties in the way they did does appear to us to have given rise to a risk that at least Mrs Unwin's side of the argument might not have been as ready and as well prepared for it as it might be. Our concern is increased bearing in mind that the resolution of the sort of problem with which the Tribunal was faced in deciding whether or not there was sufficient continuity of employment is one which did require a consideration of all the facts and circumstances; whereas in the event the material put before the Tribunal did not include all evidence which might be relevant to it; and we have referred to the non-use of Mrs Stevens's evidence and the omission to put before the Tribunal the position in relation to the P45.
27. Accordingly, whilst we do not make a criticism of the Tribunal, since the parties made no objection to their suggestion, we do express our concern as to whether this was in fact the right way to deal with this issue.
28. We move on to the second appeal, which is also by Mrs Unwin. This is against a decision of the same Employment Tribunal arrived at after a hearing which commenced immediately after the hearing of the preliminary point, which we have just been concerned with. So it started on 3 December 2001 and continued on 4 and 13 December, with the Tribunal's extended reasons being promulgated on 10 January 2002.
29. Although the Tribunal had ruled out Mrs Unwin's claim for unfair dismissal based on a minimum of one year's continuous service – what the Tribunal referred to as an "ordinary" unfair dismissal claim – Mrs Unwin also advanced an alternative unfair dismissal claim under section 99 of the 1996 Act. She claimed she had been constructively dismissed by the Bank and that its reason, or principal reason, was the taking by her of parental leave. If so, then under section 99 her dismissal was automatically unfair and no qualifying period of service was necessary before the bringing by her of an unfair dismissal claim.
30. The background to this appeal is as follows. When Mrs Unwin returned to work on 1 November 2000 she had childcare responsibilities and only wanted to work part-time. She found nursery places for her child on Tuesdays and Thursdays and originally it was agreed that she would work on those days. Initially she also had to undergo a period of re-training in order to bring her up to date. However, the Bank needed her services on Mondays and Fridays rather than the two days she was able to work. These were the Bank's busiest days and the Tribunal found that it was contemplated by both sides that she would change her working days when she was able to do so. If she could not, then it had been suggested, and accepted by Mrs Unwin, that she should reduce her days to one day a week, namely Thursday. The Tribunal found that both sides envisaged that a problem was looming up, but it also found that a temporary solution was alighted upon. That was that Mrs Unwin would devote her two days a week at Yeovil to assisting Mrs Gillian Summers, the so-called Operation Rigour Controller. Mrs Summers was based at Taunton and her duties included checking banking procedures, particularly with a view to preventing fraud and money laundering. She had to sample the Bank's procedures and report by the 14^th of each month as to their success or otherwise. Mrs Unwin was, in particular, to help her in obtaining and checking the various samples of new accounts under what was called the "Know your Customer" procedure. The Tribunal found as a fact, contrary to Mrs Unwin's evidence, that Mrs Unwin was not pressured by the Bank into agreeing to fill this new role assisting Mrs Summers. They also found as a fact that the new role was to be a temporary one which might last as long as six months, but rejected Mrs Unwin's evidence that it was for a fixed period of six months.
31. Mrs Unwin started in this role on 15 February 2001. She worked for eight days on it being absent from work for two days when her daughter was ill. Those days were 8 and 22 March. She telephoned the Bank to say she could not work on those days and was asked, and she agreed, to take them as holiday. She also asked if she could take work home and deal with it there but that was refused because the Bank did not want confidential information in relation to its customers leaving its premises.
32. The Bank soon realised that the arrangement was not working as well as it should. The first deadline for the monthly report was missed. Some problems in connection with Mrs Unwin's performance of her role had been identified. In particular, she had complained of pains in the head as a result of the tight deadlines to which she had to work. When she telephoned Mrs Summers on 22 March to tell her that she could not work that day Mrs Summers realised that it was likely that the second deadline would also be missed. Mrs Summers was concerned about that. She asked Mrs Unwin whether she was up to date with her work and Mrs Unwin said she was not. Mrs Summers concluded that the arrangement could not continue.
33. The Bank discussed the situation (amongst themselves that is, not with Mrs Unwin) and concluded that Mrs Unwin could not continue in the role although, as we have said, it did not first discuss the matter with her. No criticism of Mrs Unwin's work had been expressed to her formally or informally, even though the Bank had procedures in place for monitoring and correcting failings in job performance.
34. Mrs Unwin next attended work on 29 March. Mrs Stevens, the Resource Co-ordinator, telephoned her. She said there was no easy way to say what she was about to say but she went on to say that the job was not working out and she wished Mrs Unwin to cease working on the "Know your Customer" scheme and to make arrangements to return straightaway to the relief team.
35. The Tribunal found that Mrs Unwin was extremely upset at this and became very distressed. The news came as a considerable shock to her. Her evidence to the Tribunal was that she was not aware that things had not been working out well and any perceived shortcomings in her performance had not previously been articulated to her. She rang her husband and discussed the situation with him. She then telephoned Mrs Stevens and read a prepared statement to her. The Tribunal found that there was no doubt that she felt extremely upset and hurt at the way the Bank had dealt with the matter and she indicated that she was proposing to resign forthwith. Mrs Stevens was herself upset at Mrs Unwin's reaction and suggested they might discuss the matter. As a result Mrs Unwin lodged a grievance which was in due course referred to Mrs Nicola Ball.
36. During the preparation for the grievance hearing Mrs Ball had several discussions with Mrs Stevens and Mrs Summers as to how the grievance should be handled. Mrs Unwin criticises the fact that Mrs Stevens was involved at all in the matter prior to the grievance hearing itself. That took place on 4 April and Mrs Unwin made it clear how dissatisfied she was with the way she had been treated.
37. On 5 April, Mrs Ball wrote to Mrs Unwin with her conclusions. She acknowledged, rightly in the Employment Tribunal's view, that the matter could have been dealt with better, and that the Bank should have arranged a face-to-face meeting with her to discuss the problems rather than simply present her with Mrs Stevens's somewhat abrupt telephone call. Mrs Ball made three proposals to Mrs Unwin as to alternative employment, although one alternative did include continuing over a temporary period the role she had been performing with Mrs Summers. Mrs Unwin's reaction, however, was that the grievance hearing had been unfair and that were she to take the matter further she would not receive an unbiased hearing; and so she resigned from the Bank with effect from 4 May 2001.
38. Mrs Unwin advanced a sex discrimination claim with which we are not concerned, but as regards the constructive unfair dismissal claim, with which we are concerned, the Tribunal directed themselves that they had to be satisfied the Bank fundamentally breached Mrs Unwin's employment contract in such a way as to show that they no longer intended to be bound by one or more fundamental terms of the employment, that the breach went to the root of the contract and that Mrs Unwin had resigned in consequence of it without delay. The Tribunal reviewed their own findings of fact and expressed the view that the arrangement with Mrs Summers was probably doomed to failure from the outset, since the two women were working in different offices on different days of the week. They accepted Mrs Unwin's criticism that the transmission to her that the arrangement could not continue could have been done in a more sympathetic and tactful way but they rejected her criticism of the grievance hearing and the way it was set up and found no fault in the Bank's handling of it. The Tribunal then concluded in paragraph 31 that:

"Having considered all the evidence in the round we have come to the conclusion that the removal of the applicant from her role in helping Mrs Summers was not a breach of the applicant's contract of employment…it follows that she was not dismissed."

39. The only ground of complaint on this appeal about that conclusion is that it is said by Mrs Unwin that the Tribunal wholly failed to give any express consideration to, or to deal with, her case that the abrupt and unsympathetic manner of Mrs Stevens' treatment of her in the telephone conversation involved breaches of the implied duties of trust and confidence the Bank owed her and of their duties to provide a healthy and safe system of work. Her case was that this had caused her humiliation and depression and had resulted in her being put on anti-depressant medication by her doctor. She had asserted that the whole episode had severely damaged her employment prospects following an otherwise untainted career with the Bank. Her case was that the Bank knew that for a period from November 1995 to December 1996 she was signed off work suffering from a stress-related depressive illness. She claimed that the Bank could and should have foreseen that Mrs Stevens' treatment of her could and would result in a recurrence of that depressive illness. She complained that this treatment was a gross dereliction of the Bank's duty to her and led to foreseeably damaging results. She argued that her condition, which she said was known to the Bank, required special consideration. She complains that the Tribunal simply did not address this way of putting her case. There is simply no mention of it at all in its extended reasons and no evidence in the Tribunal's reasoning that they gave it any express thought at all.
40. Ms Joffe, for the Bank, effectively concedes this, but she says that that is not enough to entitle Mrs Unwin to succeed on the appeal. Ms Joffe says that the point was squarely raised in the written submissions to the Tribunal and she points out that the Tribunal acknowledged in paragraph 5 of its reasons that it had been provided with those submissions. She says that Mrs Unwin was advancing her case in a number of different ways and that this was at the forefront. She argues also that the extended reasons of a Tribunal are directed towards the parties who already know in detail the arguments and issues and that they do not need to be spelt out in the detail which would be appropriate to enable a stranger to the dispute to understand the full ambit of what it had been about. In support of this Ms Joffe relied on a passage in the judgment of this Appeal Tribunal in Derby Specialist Fabrication Ltd v Burton [2001] IRLR 69, at paragraph 32 in the judgment of Keene J.
41. Ms Joffe submits, therefore, that even though the Tribunal did not explain themselves on this point as comprehensively and as they might ideally have done, it is inescapable that they must have been seised of at the point and in disposing of the claim for breach of contract in the terms in which they did, it must be the case that they were disposing of the particular claim which Mrs Unwin had advanced and which she now says the Tribunal did not devote enough express attention to.
42. Ms Joffe submits in the alternative that even if the Tribunal did not explain themselves sufficiently, they made sufficient primary findings for this Appeal Tribunal to be satisfied that the claim could anyway not succeed. Mrs Unwin had returned to work following her long sickness leave and she said that in those circumstances there was no basis for treating her as a case which demanded specially sensitive treatment. Ms Joffe placed reliance on Young v Post Office [2002] IRLR 660, and in particular on paragraph 19 of May LJ's judgment, which she said showed how improbable it was that on the particular facts of the present case Mrs Unwin's alleged vulnerability could reasonably have been foreseen by the Bank.
43. In our view, Ms Joffe's submissions are not enough to explain away what is apparently a gaping hole in the Tribunal's reasoning. Whilst we accept that the point was squarely advanced in the submissions to the Tribunal, there is simply no indication in the Tribunal's reasons that it has identified and considered the point. They do not identify the type or types of breach of contract to which the Bank's conduct in the course of the telephone conversation might have amounted and give no explanation as to why they were concluding that no breach was committed. Moreover, in the light of the history which we have recounted, this particular alleged breach plainly deserved express consideration. None having been given, Mrs Unwin is necessarily left in the wholly unsatisfactory position of not knowing whether the Tribunal even considered her point and, if so, what they thought was wrong with it and why they thought the point was not one which entitled Mrs Unwin to succeed.
44. In our view, that omission in the Tribunal's reasoning is such that this is a case where it can be said that their reasons fell short of the minimum test which the Court of Appeal said they should match up to in the case of Meek v City of Birmingham District Council [1987] IRLR 250. We consider that fairness to Mrs Unwin demands that her unfair dismissal claim be reheard. She too, rather as did Ms Joffe, invites us to decide the matter ourselves and substitute our own views. We have no intention of doing that. A finding on an issue of this sort is essentially fact-sensitive and it is one which can only properly be made after all the evidence relevant to it has been heard and any necessary facts found.
45. In those circumstances, we propose to allow this appeal by Mrs Unwin as well, to set aside the Tribunal's decision, and to remit the matter to an Employment Tribunal for a fresh hearing of the claim. Our provisional view is that the remission should be to a differently-constituted Tribunal, but we are ready to hear any observations which the parties would wish to make as to whether or not they would wish to urge something different.

Later

46. We have listened to submissions on both sides and we stand by our provisional view that it should be remitted to a freshly, or differently constituted, Tribunal.

Later

47. Ms Joffe, we do not propose to give leave to appeal. We take the view that the first appeal turns really on the particular facts of the Barclays Scheme and does not appear to us to raise a point which could be said to raise a realistic prospect of success or one which raises any point of general importance. As regards the second appeal, that, if we may say so, is almost a fortiori insofar as one is permitted to use the Latin language any more. It was a decision on the facts of the case and we cannot identify any basis on which we should give permission.