United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NICHOLAS UNDERHILL QC (of Counsel) Instructed by: Messrs Linklaters & Alliance Solicitors 1 Silk Street London EC2Y 8HQ
For the Respondent	MR BRIAN LANGSTAFF QC (of Counsel) and MS RACHEL CRASNOW (of Counsel) Instructed by: Messrs Boodle Hatfield Solicitors 61 Brook Street London W1K 4BL


 


HIS HONOUR JUDGE J BURKE QC

The Appeals

1. Mr Murrell was employed as an equities dealer by Everett Financial Management Ltd ("EFML") from September 1997 until he resigned on 2 February 2001. On 18 April 2001 he presented an Originating Application to the Employment Tribunal in which he claimed that he had been constructively dismissed and that his dismissal was unfair in all the circumstances, or, alternatively, that his constructive dismissal was caused by his making a "protected disclosure" to EFML in July 2000 and was, therefore, automatically unfair. EFML denied constructive dismissal; they asserted in their Notice of Appearance that they had been guilty of no breach of Mr Murrell's contract of employment and that he had voluntarily resigned.
2. Mr Murrell's claim was heard by the Employment Tribunal, sitting at London South, and chaired by Mrs F J Silverman, over five days between 10 July and 19 December 2001 (inclusive). In their Decision, promulgated with Extended Reasons on 8 April 2002, the Employment Tribunal unanimously found that Mr Murrell had been constructively dismissed and that the dismissal was unfair under section 98(4) of the Employment Rights Act 1996. By a majority the Tribunal concluded that Mr Murrell had been the object of victimisation under section 47(b) of the 1996 Act (as amended by the Public Interest Disclosure Act 1998); the minority member differed from the majority conclusion on the basis that there had not been a protected disclosure. The Tribunal then unanimously awarded Mr Murrell compensation of £720 by way of basic award, £250 for loss of statutory rights and approximately £195,000 for past and future loss of earnings. The total thus awarded was, however, increased at a review hearing to £301,115.83 because the Tribunal, in their original calculations, had failed to gross up the award for loss of earnings.
3. These conclusions have generated three appeals to the Employment Appeal Tribunal. In Appeal EAT/553/02 EFML appeal against the Tribunal's findings:

(1) that there had been an unfair constructive dismissal;

(2) that the reason for dismissal was his taking part in July 2000 in the presentation to EFML of a petition which was said to constitute a protected disclosure.

(3) that there had been victimisation pursuant to section 47B of the Employment Rights Act.

Mr Murrell, by his answer, cross-appeals on the basis that the Tribunal ought to have found dismissal to have been automatically unfair by virtue of section 103A of the Employment Rights Act on the basis that he had been dismissed from making a protected disclosure.

4. By the second appeal, EAT/552/02, Mr Murrell appealed against the Tribunal's award of compensation for loss of earnings on the basis of the Tribunal's failure to gross up; this appeal has been overtaken and rendered unnecessary by the Tribunal's decision on the review and is no longer pursued. By the third appeal, EAT/952/02, EFML appeal against the adjusted award of compensation for loss of earnings made on review on the basis that the method of calculation used by the Tribunal was erroneous; However, this third appeal was not, in the event, pursued and, if it has not been withdrawn, it is hereby dismissed.
5. It follows that only the first appeal now falls for decision.
6. In their Skeleton Argument, Mr Underhill QC and Mr Jeffers, who appeared on behalf of EFML, pointed out that these appeals had been listed for a full hearing before the Employment Appeal Tribunal at short notice at the request of Mr Murrell and without a preliminary hearing; as a result, they said, EFML had had no opportunity to seek an Order for the Chairman's Notes which were necessary for the development of some of the arguments which they wished to present; they suggested that, at the hearing before us, they should proceed with their arguments which did not require such notes and should reserve the opportunity to return for a further hearing on their remaining arguments if they did not succeed on the first occasion. However, after considering their position, EFML decided to rely only on those arguments canvassed before us and not to seek to present any further arguments at a later date. This was a wise decision; it is highly unlikely that we would have permitted the suggested two-stage exercise; there had been plenty of time for the parties to seek to agree any relevant notes of evidence or to make an application for an Order for the Chairman's Notes; but EFML had not taken any step to seek either agreement upon or any Order for those notes.

The facts

7. The Tribunal set out the facts which they found principally in paragraph 7 of their Decision, although some findings appear elsewhere; for present purposes, the facts, which we take from the Tribunal's findings and from the contemporary documentation, some important parts of which are not referred to in the Tribunal's Decision, can be briefly summarised. Mr Murrell, who had previously worked in financial services, was promoted to the Elite group of traders in August 1999, after he had worked for EFML for some two years. In the spring of 2000 he and colleagues became concerned about a particular practice which they were required by EFML to carry out; the Tribunal made no findings as to what that practice was. On 26 July 2000 nineteen dealers, including Mr Murrell, signed a joint letter or petition to EFML's directors, Mr Burgess and Mr Allen; the letter said:

"Further to a meeting held on 25-07-00 regarding the conduct of the Everett Groups Business, a number of concerns were raised.

We request written assurance from yourselves as Directors of the Everett Group of Companies that the Everett Group and ourselves are not engaged in any activity that is unlawful, could be construed as unlawful, in contravention of any SIB Principle/Regulation or could jeopardise our individual personal registration.

As registered and regulated financial advisors we feel this is a legitimate and reasonable request and look forward to a response at your earliest convenience."

The Tribunal made no findings at all as to the holding of or what was said at any meeting on the day before the petition.

8. On the same day as the petition, Mr Allen, one of the directors to whom it was addressed, wrote to Mr Murrell (and others) denying that there was any impropriety and explaining that there were various external compliance systems which monitored EFML's activities. He invited Mr Murrell to schedule in writing any concerns which he had and assured him that he would receive a prompt response. He said that any issues raised would be dealt with under EFML's public disclosure policy and that any employee who made a bona fide report under that procedure would not be subjected to any detriment as a result.
9. Two days later Mr Allen sent a further and less formal memo to the signatories of the petition in which he said that he was disappointed that EFML's integrity had been called into question; he said that the signatories had been given assurances and should now confirm that the assurances had addressed their concerns or provide full details of unresolved concerns. He called for an apology to particular individuals; and Mr Murrell provided a letter of apology on 31 July.
10. At a meeting a week later the other recipient of the petition, Mr Burgess, expressed to the dealers his disappointment at the petition and said that it had serious implications for EFML, and that the dealers should think carefully about any further such letters. The Tribunal found that Mr Murrell regarded this as a veiled threat; and that he also believed that he was regarded by EFML as one of the instigators of the petition and, over the next few months, felt that EFML were planning to get rid of him and others whom they regarded as ringleaders; but the Tribunal did not find that Mr Murrell's beliefs were accurate or that EFML did so regard Mr Murrell or were planning to get rid of him. We were told that EFML's case was that a Mr Charalambous and not Mr Murrell was regarded as the ringleader. There is no finding that EFML did or said anything to foster those beliefs held by Mr Murrell or that anything passed between them in relation to the petition after the end of July 2000.
11. On 2 January 2001, Mr Murrell was told in a meeting that he was going to be removed from the Elite group because Mr Allen and Mr Burgess wanted him off it. EFML's file note of this meeting sets out that that desire was based on their dissatisfaction with Mr Murrell's performance in the Elite group over several months. The Tribunal found that Mr Murrell's removal from the Elite group was a demotion and also involved the removal of his assistant, to which he was entitled as a member of that group. There were various events over the next nine days. EFML claimed that, at the meeting on 2 January, Mr Murrell had agreed to revert to the status of an ordinary dealer; Mr Murrell denied that he had so agreed. On 4 January he was given a final written warning, ostensibly for his recent attitude and for being rude at a meeting on 2 January. After a few days away from work during which he took legal advice, Mr Murrell attended a meeting with Mr Burgess and Mr Mudie, his immediate manager, on 10 January; the file note of that meeting sets out that he declined to answer various questions; he said that he would go back to work but would not commit to dealing or to anything in relation to his work and would not say what he would do. Later that day he was suspended for one week; a letter confirming his suspension was provided on the same day; and on the following day a further letter set out conduct on Mr Murrell's part of which EFML complained. That conduct was described as unacceptable. He was invited to return to the office for a meeting on 17 January which would be treated as a disciplinary meeting.
12. On 16 January solicitors acting on behalf of Mr Murrell faxed and sent a letter to EFML for the attention of Mr Burgess, in which they asserted that EFML had been guilty of a fundamental breach of Mr Murrell's contract of employment which entitled him to resign and claim constructive dismissal. They also asserted that Mr Murrell had been so treated because he was perceived as an initiator of the petition of July 2000 which amounted to a protected disclosure. The solicitors warned that Mr Murrell would, if proceedings were commenced, have a strong claim for substantial compensation and threatened action unless substantive proposals for resolution of the dispute was forthcoming within fourteen days. This was the first reference made by or on behalf of Mr Murrell to the joint letter as a cause of the treatment which he had received some five months later or since the summer of 2000.
13. On the same day, 16 January, Mr Murrell provided to Mr Burgess a letter in which, after making points about the history, he said at paragraph (v):

"During the course of the meeting on 10^th January 2001, I confirmed that I was fully prepared to return to the dealing floor and continue to do my job to the best of my ability. As I have indicated, I intend to be fully compliant with FSA principles and PIA rules."

Mr Burgess replied on that day saying:

"I have now had sight of your letter of 16 January 2001 which states that you are fully committed to EFML and that you are fully prepared to return to the dealing floor and continue to do your job to the best of your ability. This is the outcome we are seeking to obtain from the meeting."

[ie. The meeting arranged for the next day]

"There does appear to be some areas [sic]of misunderstanding between us and I hope we can clarify matters tomorrow."

The Tribunal made no reference in their decision to this exchange of letters on 16 January which plainly set the scene for possible reconciliation on the following day.

14. The Tribunal found that, at the meeting on 17 January (which had been scheduled as a disciplinary meeting), Mr Murrell was invited to rejoin the Elite scheme and that matters relating to his lack of commitment, misconduct etc appeared not now to be in issue. It is, however, necessary for us to go rather further into what emerged from that meeting as demonstrated by the contemporary documentation. It was EFML's case, as set out in paragraphs 17 and 18 of their Notice of Appearance, that at that meeting Mr Murrell gave assurances as to his commitment to EFML and, as a result, EFML restored him to membership of the Elite group, the disciplinary sanctions were removed and that the disagreements between Mr Murrell and EFML were resolved as a result of that meeting, as confirmed by both parties by their signatures to a written record of the meeting. It is clear from that signed record that, in summary, is what occurred; it is not in dispute that a written record of the meeting was produced by EFML which was provided to Mr Murrell and to which he made a number of substantive alternations before it was signed, under the words "agreed as a true record of the meeting of 17 January 2001" by Mr Burgess, Mr Allen and Mr Wells, on behalf of EFML and by Mr Murrell and his representative at the meeting, Mr Salisbury; it is also not in dispute that it was signed, after Mr Murrell had made alterations to it as he wished, on 23 January.
15. The record thus agreed and signed states, in particular, the following:

"….RA stated that EFML thought that PM was not committed and PM thinking he was, and had always been, epitomised the confusion that exists. Fortunately PM letter of 16/01/01 gave EFML the assurances it sought and was therefore a way forward for EFML and PM.

RA stated that now the confusion had gone away, and as PM was now committed to EFML, the elite scheme and all it stood for, that there was an opportunity for EFML to invite PM back into the elite scheme. That being the case, and with the assurances EFML now had, PM was formally invited back into the scheme.

After being invited back to the elite team PM expressed that he was surprised and confused over the dramatic turnaround given that it had previously been indicated that JEB and RA felt that PM did not deserve to be a member of the elite group.

PM stated that he would think about it, but was at pains to stress that EFML should understand that PM was always committed to EFML……

RA pointed out that once again the confusion and misunderstanding that existed between EFML and PM as undesirable, and as PM was now confirming his commitment to EFML and the elite group scheme. Once again PM said he would think about it, PM enquired as to whether this meeting was a disciplinary meeting.

RA and TW stated that the meeting was initially called as such, but since EFML had received PM letter of 16/01/01 the tone of the meeting of 17/01/01 had changed. TW pointed out the main purpose was to seek PM assurances that he committed to the company, if PM could still offer no commitment it would have to be treated as a disciplinary matter. However due to PM confirming his commitment a disciplinary meeting was not what has transpired……

PM agreed with JEB that these file notes would be reviewed by JEB, RA, TW, PM and PS, and once agreed as a true and accurate reflection of what happened would be signed by all concerned, only then could everyone be clear, there would be no confusion and PM could rejoin the elite scheme, and EFML could offer the elite scheme."

16. At that point the meeting broke up; it was expected to reconvene at 11.45 am but it reconvened much sooner, at 10.15 am. The record then proceeds, so far as is material, as follows:

"PM confirmed that he would be happy to accept that EFML and he have been somewhat confused over the matter and PM would give EFML the commitment to work for the company and the elite scheme that EFML sought 2/01/01, and agree the relevant file note.

PM asked management to confirm that no disciplinary matters would remain on file regarding events since 2/01/01, and management confirmed that all disciplinary sanctions be removed from the record.

With the above assurances, EFML will once again put PM in the elite scheme PM, JEB and RA all agreed that all were happy with the situation as it was now resolved."

Mr Murrell made a number of important amendments to the original record which appear in the documentation before the Tribunal in bold type; it was plainly necessary that he should have the right to do so because there had been disagreement as to the terms of EFML's record of the meeting of 2 January into which Mr Murrell had had no input.

17. On 23 January EFML wrote to Mr Murrell's solicitors, reporting that matters between them and Mr Murrell had been resolved, that Mr Murrell had accepted EFML's invitation to rejoin the Elite scheme and that EFML and Mr Murrell had resolved to move forward together. On 26 January the solicitors replied saying, that, on the basis of EFML's letter, the matter appeared to have been resolved. On 29 January, according to a further file note, Mr Mudie met Mr Murrell and proposed a basis for commission payments to Mr Murrell for the month of January at a rate which Mr Murrell said was very fair.
18. Meanwhile, after the meeting of 17 January, Mr Murrell had returned to the Elite group; as a member of that group he was entitled to an assistant. He was allocated as his assistant a Mr Richards but was dissatisfied because Mr Richards was not a good performer. He had lunch with Mr Richards on or around 20 January and learned that Mr Richards had received a letter from EFML expressing dissatisfaction with his performance and containing a warning and that Mr Richards was going to resign. The Tribunal found that Mr Murrell felt that, in giving him an assistant who was known to be underperforming, EFML had set up Mr Murrell to fail and that it was therefore only a matter of time before EFML took further measures against him. They found that he felt his position to be no longer tenable and therefore resigned on 2 February 2001. In his resignation letter Mr Murrell made no reference to any problem relating to Mr Richard or to anything done or said by EFML after the meeting of 17 January or after the signing of the agreed record of that meeting.
19. It is important to point out that the Tribunal did not find as a fact that EFML had set Mr Murrell up to fail or were contemplating any further measures against him; their findings as to the reasons for Mr Murrell's resignation go only as to Mr Murrell's feelings as to what EFML were doing or prepared to do.

The Tribunal's Decision

20. Having set out their principal findings of fact in paragraph 7 of their Decision, the Tribunal in paragraph 8 directed themselves, correctly, that to prove constructive dismissal Mr Murrell had to show a breach of contract by EFML which went to the root of the contract of employment and was so serious as to allow him to treat his contract as terminated and that he must not have acquiesced in the breach and must have resigned without delay. The Tribunal then said:

"In this case it is clear that the treatment of the Applicant by the Respondent (particularly in disciplining him for unknown offences without any investigation or hearing) is a breach of the implied term of mutual trust and confidence which must exist between the employer and the employee and as such strikes at the root of the contractual relationship entitling the Applicant to resign, which he did. The Tribunal finds therefore that there was a fundamental breach which entitled the Applicant to treat himself as constructively dismissed. The events which constitute the breach occurred over a period of time culminating in a situation in which the Applicant felt he had reached the end of the road and did not trust the Respondent not to commit further breaches in the future. The demotion of the Applicant was rectified on 17 January 2001, but the Applicant mistrusted the Respondent's motive in this action (which was pre-empted by intervention from the Applicant's solicitor) particularly when he was given a poor performer as his new assistant with no reasonable explanation being given as to why he could not resume working with his former assistant"

21. In paragraph 9 the Tribunal again correctly stated that, under section 98(1) of the Employment Rights Act it was for EFML to show the reason for the dismissal and that reason was a reason falling within section 98(2) of the Act; but they did not proceed at that point to set out what they found to be the reason for the dismissal - or, more accurately, in a constructive dismissal case, for the repudiatory conduct. However, they then proceeded to consider the issue of fairness under section 98(4) of the Act as though a reason falling within section 98(1) had been made out. They concluded that the dismissal was unfair for the reasons set out in paragraph 11 which all relate to the treatment of Mr Murrell between 2 January and 17 January, i.e. his demotion, his being given a final warning and his suspension without any proper notification or proper disciplinary procedure. None of the reasons given for the conclusion that the dismissal was unfair relate at all to the petition. The Tribunal, in paragraph 12, stated that for the reasons given above (i.e. in paragraph 11) they found the dismissal substantively and procedurally unfair.
22. However, having already expressed their decision as to unfairness under section 98(4) of the Employment Rights Act, the Tribunal then in paragraph 13 said:

"The reason for dismissal was the Applicant's conduct in taking part in the petition which questioned the Respondent's legal procedures. This is not a justifiable reason for dismissal within Section 98 Employment Rights Act 1996"

The Decision does not set out on what this conclusion is based or how the events of January 2001 were caused by the events of July 2000; and despite this finding as to the reason for the dismissal, the Tribunal did not at this or at any other point in their Decision find that the dismissal was one which was automatically unfair pursuant to section 103A of the Act or, indeed, refer to section 103A at all. If section 103A applied, findings of general unfairness under section 98(4) would have been unnecessary.

23. In the next section of their Decision, headed "Victimisation through making a Public Interest Act disclosure" the Tribunal concluded, by a majority, in paragraph 14 that the signing of the petition by Mr Murrell was a protected disclosure within section 43B of the Employment Rights Act; the minority member's view was that the petition was not such a disclosure because it did not specifically name or identify a practice which could be identified as making a disclosure for the purposes of the Act, as set out in paragraph 24. The Tribunal was unanimously of the view that, if there was a protected disclosure, EFML's action in demoting and disciplining Mr Murrell without good cause amounted to a detriment to which Mr Murrell had been subjected because of that disclosure in breach of section 47B of the Act. Paragraph 14 of the Decision concluded with these words:

"The Respondent did not in their evidence produce any plausible explanation for their conduct and the majority of the Tribunal thus infers a link between the Applicant's signature of the petition and his later treatment."

24. It is not necessary, because the appeals in respect of the Tribunal's quantification of loss are no longer live, to spell out in any detail how the Tribunal reached the awards which they made; it is necessary only to record that that the Tribunal:

(1) did not apply to the compensatory award which they made the statutory cap of £50,000;

(2) did not, save perhaps in the last sentence of paragraph 14 which we have set out above, explain why the statutory cap was not being applied;

(3) did not award any compensation in respect of the breach of section 47B of the Act which they had found to have occurred.

Issues

25. These conclusions give rise to the following issues:

(1) In the light of the agreement reached between Mr Murrell and EFML at or subsequent to the meeting of 17 January, was it open to the Tribunal to find that Mr Murrell had been constructively dismissed on 2 February?

(2) Did the Tribunal err in law in their conclusion in paragraph 13 of the Decision as to the reason for the dismissal?

(3) Was the petition a protected disclosure?

(4) Was the finding of victimisation under section 47B one which the Tribunal were entitled in law to reach; or did the Tribunal mistakenly make a finding in Mr Murrell's favour under section 47B of the Act when they intended to make and should have made a finding in his favour under section 103A of the Act, as asserted in Mr Murrell's answer?

Constructive dismissal

26. Mr Underhill QC accepted, for present purposes, that it was open to the Tribunal to regard the demotion of and disciplinary measures taken against Mr Murrell in early January 2001 as repudiatory conduct. The thrust of his argument was that:

(1) The Tribunal had not fully considered or analysed the nature and effect of the agreement reached between Mr Murrell and EFML subsequent to that repudiatory conduct.

(2) That agreement, which was made either on 23 January, when Mr Murrell signed the document from which we have quoted extensively above or on 26 January when Mr Murrell's solicitors wrote accepting that the dispute had been resolved, represented an unequivocal affirmation of the contract of employment which, in the absence of any subsequent breach, prevented Mr Murrell from relying thereafter upon pre-existing repudiatory breaches.

(3) The Tribunal found no subsequent breach.

(4) The only matter occurring after the meeting of 17 January of which Mr Murrell complained was the provision of Mr Richards as his assistant; but there was no finding that that provision was in breach of contract; and in any event Mr Murrell knew about the supposed shortcomings of Mr Richards before 23 January, when he signed the agreed document relating to the meeting of 17 January, and had thus elected on 23 or 26 January to proceed with his contract of employment despite those problems; there was therefore no conduct on the part of EFML, whether or not amounting to a breach of contract, which could have revived or enabled Mr Murrell, despite his affirmation of the contract, to rely on previous breaches of contract under the 'last straw' doctrine.

27. Mr Langstaff QC, who appeared with Miss Crasnow on behalf of Mr Murrell, accepted that there had been an affirmation on Mr Murrill's part and that the effect of such an affirmation was that Mr Murrell lost the right to treat himself as constructively dismissed by any breach of contract which occurred and of which he had full knowledge prior to the affirmation; but he submitted that:

(1) that right was not lost in respect of any breaches of which there was not full knowledge - as set out by the Court of Appeal in Farnworth Finance Facilities Ltd -v- Attryde [1970 2AER 774];

(2) that right would be revived by any subsequent breach of the contract of employment or indeed adverse conduct on the part of the employer towards Mr Murrell short of such breach.

(3) The effect of affirmation in this case was, he submitted, therefore date-critical; if the affirmation occurred on 17 January, as he submitted was the correct view (although he accepted that the document was not signed until 23 January) the pre-existing breaches had been revived by EFML's conduct which, in paragraph 7(aa) of the Decision, the Tribunal had found to be the provision of an incompetent assistant without any explanation and the setting up of Mr Murrell to fail in his reinstated position in the Elite team; in effect, Mr Langstaff QC submitted, the Tribunal had found that, after 17 January, EFML had behaved unreasonably and in bad faith and that Mr Murrell did not have full knowledge of that conduct at the time of the affirmation or until 20 January when he had lunch with Mr Richards.

28. The arguments on both sides plainly proceeded, at least by implication, on the basis that the Tribunal had not fully appreciated or analysed EFML's case on affirmation. The Tribunal said only, in paragraph 8 of their Decision, that the demotion of Mr Murrell was rectified on 17 January; they do not appear to have considered whether there was an affirmation, or if so of what it consisted, when it occurred or whether any pre-existing breaches were revived by subsequent conduct. The extract from paragraph 8 of the Decision which we have set out at paragraph 20 of this judgment reveals that, after their description of the demotion as rectified (without any comment upon the effect of what occurred on or after 17 January) on the disciplinary steps taken against Mr Murrell, the Tribunal referred only to Mr Murrell's continuing distrust of EFML's motives; and the Tribunal made no reference at all to the exchange of letters between Mr Murrell and Mr Allen on 16 January or to the agreed signed record of the meeting on 17 January which were in the documents before them.
29. Neither side invited us to remit this case to the Tribunal for determination of the critical issue as to when the affirmation, which both sides accept occurred, took place; and it is clear to us that that issue must be determined and would inevitably be determined were there to be a remission, in favour of EFML. The record of the meeting contained the words which we have already quoted but which we must now set out again:-

"PM agreed with JEB that these file notes would be reviewed by JEB, RA, TW, PM and PS, and once agreed as a true and accurate reflection of what happened would be signed by all concerned, only then could everyone be clear, there would be no confusion and PM could rejoin the elite scheme, and EFML could offer the elite scheme."

In the light of the document as a whole, and those words in particular, in our judgment the only correct analysis of what occurred is that the parties agreed that on 17 January they were reserving their position until full agreement upon the terms of the document had been reached; that is, in our judgment, the only view which makes sense in the context. As Mr Underhill QC compellingly submitted, in the light of the history and the words of the document he would have had very considerable difficulty had he sought to argue that the agreement and therefore the affirmation was complete on 17 January. Furthermore, as Mr Underhill QC further submitted, there is a less technical and more substantive reason why affirmation cannot be said to have occurred before 23 January when the document was signed; that reason is that affirmation involves the doing of an act by the party entitled to rely on the breach of contract which objectively and unequivocally shows that, notwithstanding the breach of which he has complained, he is electing to treat the contract as continuing and not as at an end; and the document makes it wholly clear that no such unequivocal election could be demonstrated until Mr Murrell was content with the terms of the document which set out the basis of the agreement between the parties and showed that he was so content by signing it, as he did on 23 January.

30. It is not in dispute that, by 23 January, Mr Murrell knew all the material facts about Mr Richards and that he signed the document after he had acquired that knowledge. It was open to him, if in the days immediately following the meeting of 17 January, he had become truly concerned about the provision of Mr Richards, to say that the "deal" between the parties was off; he did not do so and raised no complaint about the provision of Mr Richards then or, indeed, later before or in his letter of resignation.
31. Even if the Tribunal had found that the provision of Mr Richards as Mr Murrell's assistant without any explanation was, as Mr Langstaff QC submitted, an act on EFML's part which was unreasonable or in bad faith or in further breach of contract, any such action occurred before the affirmation and could not revive the earlier breaches of contract in the light of the subsequent affirmation. However the Tribunal, in our judgment, did not so find; neither in paragraph 7(aa) nor at the end of paragraph 8 of their Decision did the Tribunal go further than making findings as to what Mr Murrell felt or believed. The words of neither passage amount to any finding of fact that EFML had in fact acted as Mr Langstaff QC submitted. It was EFML's case at the Tribunal hearing that the provision of Mr Richards was a wholly reasonable step and that he had proved himself to be a successful assistant, albeit not a successful dealer in his own right; the Tribunal made no finding as to which parties' case as to the provision of Mr Richards was to be preferred.
32. It is not necessary for us to determine whether the affirmation occurred on 23 January or, as Mr Underhill QC alternatively suggested, when Mr Murrell's solicitors accepted, on 26 January, that the dispute was resolved; on the facts there is no significant difference between the two dates. In our judgment there was no affirmation prior to 23 January by which time Mr Murrell knew all relevant facts about the provision of Mr Richards; and it was not open to him after such affirmation, at the earliest, 23 January, to rely upon the provision of Mr Richards as reviving the pre-affirmation breaches of contract on which the Tribunal based their conclusion that Mr Murrell had been constructively dismissed.
33. It follows, in our judgment, that the Tribunal erred in concluding that Mr Murrell had been constructively dismissed on 2 February 2001. We do not propose to speculate as to why, on that date, he chose to resign; Mr Underhill QC's suggestion that Mr Murrell simply changed his mind about continuing to work for EFML is attractive and may be correct; but it is unnecessary for us even to consider Mr Murrell's motives; as a matter of law the Tribunal cannot have held that there was a constructive dismissal on that date.
34. In the light of that conclusion on our part, Mr Murrell's unfair dismissal claim must be dismissed. However we were asked to give our decision on the other issues lest this case go further.

The reason for the dismissal

35. Mr Underhill QC's attack on the Tribunal's conclusion, in paragraph 13 of their Decision, as to the reason for dismissal was based principally on the submission that the Tribunal provided no reason for that conclusion. He accepted that it would be appropriate to look not only at paragraph 13 but elsewhere in the Decision for the Tribunal's reasons and that, in some cases, reasoning might be unnecessary if the facts as found spoke for themselves; but in this case, he argued, the reasons did not appear elsewhere and the facts did not speak for themselves. On the contrary they pointed in the other direction; over five months passed between the petition and its immediate aftermath on the one hand and the events of January 2001 on the other, during which no complaint was made of anything said or done on the part of EFML indicating that the episode relating to the petition had not been regarded by EFML as over. EFML's witnesses had expressly denied in evidence that there was any connection between that episode and the subsequent events; and the contents of paragraph 8 of the Decision appeared to be inconsistent with the finding in paragraph 13 which was itself placed in an unusual position in the Decision, after the Tribunal had found in the previous two paragraphs that the dismissal was unfair.
36. In such circumstances, it was submitted, the Tribunal was obliged to set out why they found the reason to be that appearing in paragraph 13 of their Decision so as to explain to the parties, on this issue, they had respectively won or lost in compliance with the familiar requirement set out in the judgment of Bingham LJ in Meek -v- City of Birmingham District Council [1987] IRLR 250 at paras 8 - 13.
37. Mr Underhill QC accepted that, in paragraph 14 of their Decision, when dealing with the protected disclosure aspect of Mr Murrell's claim, the majority of the Tribunal inferred that there was a link between Mr Murrell's signature to the petition and his subsequent treatment; but, he submitted, that finding did not cure the defect in paragraph 13 because it was itself unexplained, in terms of findings of primary fact or otherwise.
38. Mr Langstaff QC submitted generally but with particular emphasis in the context of this issue that it was important to consider the Tribunal's Decision as a whole and that such a consideration demonstrated the Tribunal's distaste for and condemnation of the way in which Mr Murrell was treated. It was Mr Murrell's case that there was a connection between his contribution to the petition and the treated meted out to him some months later; the existence of such a connection was evidenced by the threat made by Mr Allen and Mr Burgess after the petition had been delivered, by the otherwise unexplained treatment of Mr Murrell in January 2001 and by Mr Murrell's belief, as found as fact by the Tribunal in paragraph 7(l) of their Decision that EFML were planning to get rid of him. The Tribunal, it was submitted, was entitled on the evidence to infer that the two episodes were linked and that the former episode was the reason or the principal reason for EFML's treatment of Mr Murrell in January 2001 which treatment would, had wiser counsel not intervened, have led to Mr Murrell's dismissal for no plausible explanation, as indeed had happened to Mr Charalambous (see paragraph 7(m) of the Decision).
39. On this issue too, we prefer the submissions of Mr Underhill QC. We accept that there may have been some, albeit slender, material from which an inference of a link between the two episodes could have been drawn, the Tribunal did not state what, if any material they relied upon to draw the inference that there was such a link; still less did they set out why they concluded in paragraph 14 not merely that there was a link but, firstly, that Mr Murrell's conduct in taking part in the petition was not a reason or the principal reason but the reason for the dismissal. Further, the finding of a link between two acts or that one act is related to a subsequent act is not a finding that the subsequent act occurred on the ground of the former act or by reason of it. See the decision of the Employment Appeal Tribunal, presided over by Mr Underhill QC, sitting as a Recorder, in London Borough of Harrow -v- Knight (EAT/0790/01) at paragraphs 14-16 (an authority which it is fair to say, was cited to us on behalf of EFML with considerable diffidence) with which paragraphs we agree.
40. In the face of EFML's evidence that there was no connection between the two episodes and the other factors to which we have referred in paragraph 21 above it was, in our judgment, incumbent upon the Tribunal to set out the reasons why they reached the conclusion that Mr Murrrell's conduct in taking part in the petition was the reason for the dismissal so that, on this issue, Mr Murrell could know why he had won and EFML could know why they had lost. The Tribunal's findings as to Mr Murrell's belief as to what was in the minds of EFML could not be regarded as findings as to what was in fact in the minds of EFML; prima facie the five month gap in which no steps were taken against Mr Murrell contra-indicated a connection between the two episodes; it was in our judgment not sufficient to say that the explanation given by EFML was implausible without setting out why it was implausible; and the existence of a link was not sufficient to establish the reason which the Tribunal found for the dismissal.
41. We entirely accept the correctness of Mr Langstaff QC's submission that we should look at the Decision as a whole; but having done so we cannot see within the Decision any or any sufficient reasoning to render the relevant conclusion, to use an expression used by Sedley LJ in Tran -v- Greenwich Vietnam Community Project [2002] ICR 1101 at paragraph 17 and now commonly used in the Employment Appeal Tribunal, "Meek compliant".
42. Accordingly the Tribunal's conclusion in paragraph 13, in our judgment, cannot stand. If this issue stood alone, we would be obliged to remit it to the Employment Tribunal for reconsideration. However, in the light of our conclusion, that the Tribunal's decision that there was a constructive dismissal, for whatever reason, was reached in error of law and that there was not, on the established facts, a constructive dismissal, such a remission is clearly unnecessary.

The protected disclosure

43. Part IVA of the Employment Rights Act 1996, inserted by the Public Interest Disclosure Act 1998, is headed "Protected Disclosures"; and section 43A of the Act defines a protected disclosure as a qualifying disclosure as defined by section 43B. It was Mr Murrell's case that the petition was a qualifying disclosure within section 43B(1)(b), that is to say that the petition tended to show that a person had failed, was failing or was likely to fail to comply with a legal obligation to which he was subject. The majority of the Tribunal concluded that the joint letter was a qualifying disclosure within section 43B on this basis; the minority member, as we have set out earlier, regarded the petition as not containing any disclosure for the purposes of the Act; the majority must, by implication, be taken to have disagreed with the minority member and to have regarded the petition as making such a disclosure.
44. What lies between the parties on this issue is a short point which is derived from the wording of the petition itself, namely whether it contained any disclosure of information at all - or to put the point more accurately for our purposes on appeal - whether it was open to the majority of the Tribunal to find that it did contain a disclosure of information. Mr Underhill QC submitted that:

(i) that the petition conveyed no information but only sought assurance that EFML's organisation and the signatories were not involved in any activity which was unlawful, in contravention of any SIB principle/regulation or could jeopardise the signatories' individual registrations, and

(ii) insofar as the joint letter provided information, it was information which EFML already knew and which Mr Murrell knew that they knew, so that there was no disclosure.

45. Mr Langstaff QC submitted:

(i) that the joint letter should be regarded as a written record of the information given to EFML orally at the meeting on the previous day at which there had obviously been a protected disclosure; and the employers accepted that a protected disclosure had been made as evidenced by Mr Allen's response to the petition in which he invited Mr Murrell (and, no doubt, the other signatories) to schedule their concerns which would be dealt with under EFML's public interest disclosure policy and by a further letter written by Mr Allen to Mr Murrell on 29 January 2001 asking him to write if his concerns had not been satisfactorily answered.

(ii) While Mr Langstaff QC did not demur from Mr Underhill QC's proposition that, if the provider of information knows that the recipient already knows that information, there cannot be a disclosure of that information, there was no finding to that effect in this case; the reality was that the joint petition was a confirmation of what had occurred on the previous day at the meeting.

46. It is essential, in considering this issue, that we should concentrate on the Tribunal's findings. The majority found, at paragraph 14 of the Decision, that the signing of the petition by Mr Murrell was a protected disclosure. They did not find that the petition together with what was said at the meeting on the previous day was a protected disclosure; indeed they made no finding at all as to what was said at that meeting to which they made no express reference, possibly because it was not mentioned in Mr Murrell's witness statement or because Mr Murrell's Originating Application relied on the petition alone as a protected disclosure. There was no documentary record of what was said at any meeting on the day before the petition.
47. It is therefore not possible for us, as an Appellate Tribunal, on the material before us to reach any conclusion as to what was said at that meeting (assuming that there was one); and we must reject Mr Underhill QC's second submission because we cannot conclude that such information, if any, as was provided by the petition was known to EFML as a result of what was said at an earlier meeting or that Mr Murrell knew that EFML knew of such information.
48. For the reasons we have set out, we must consider the petition in isolation; and, if it is thus considered, it is, in our judgment, clear that it did not disclose any information falling within section 43B at all. It referred to the fact that a number of concerns had been raised on the previous day (which of itself could not be and was not suggested to have been a qualifying disclosure) and thereafter simply sought assurances in the terms which we have summarised in setting out Mr Underhill QC's submissions. It ended by expressing the signatories' view that their request for assurance was legitimate and reasonable (which also of itself could not be and was not suggested to have been a qualifying disclosure). While the letter plainly referred to what may or may not have been a disqualifying disclosure on the previous day, on its own it was not capable, as we see it, of being a qualifying disclosure as defined by section 43B and, therefore, it could not have been a protected disclosure.
49. Accordingly we conclude that it was not open to the majority of the Tribunal to conclude as they did in paragraph 14 of their Decision that the petition was a protected disclosure.
50. If we had taken a different view on the first issue and the finding of constructive dismissal, for whatever reason, had survived, the effect of our decision on this issue would be that any of compensatory award for unfair dismissal could not have exceeded the statutory cap.

Victimisation

51. Paragraph 8 of the grounds of claim which form part of Mr Murrell's Originating Application asserted that Mr Murrell's dismissal was due to his having made a protected disclosure by way of the petition and that "consequently his dismissal amounted to victimisation contrary to section 47B of the Employment Rights Act 1996".
52. However Mr Langstaff QC confirmed that, at the hearing before the Tribunal, Mr Murrell's was put not on the basis of section 47B but on the basis of section 103A of the Act, it being his case that the reason or principal reason for his dismissal was that he had made a protected disclosure; and only section 103A would have enabled Mr Murrell to break through the statutory cap on compensatory award for unfair dismissal. No free-standing claim under section 47B was being pursued. It is apparent that the Tribunal, perhaps misled by paragraph 8 of the grounds of claim, failed to appreciate that there was no such free-standing claim; but it is in our view unnecessary in the light of our conclusions on the first three issues of this appeal for us to decide whether, had we reached different conclusions on those issues, it would be possible for us on appeal to substitute a finding that Mr Murrell succeeded under section 103A for the Tribunal's finding that he succeeded under section 47B. Having concluded that there was no constructive dismissal, that the Tribunal's decision that the reason for the dismissal was Mr Murrell's conduct in taking part in the petition cannot stand and that in any event the petition could not be regarded as a protected disclosure, any further consideration of the fourth issue in this appeal would be wholly academic. Accordingly, we propose to say no more about it.

Result

53. For the reasons that we have set out, the appeal must be allowed and Mr Murrell's claim must be dismissed.