United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DANIEL TATTON BROWN (of Counsel) Instructed by: Kent Law Clinic - Kent Law School Eliot College University of Kent at Canterbury Kent CT2 7NS
For the Respondent	MISS LUCY BONE (of Counsel) Instructed by: Kent County Council Legal & Secretariat Sessions House County Hall Maidstone Kent ME14 1XQ

SUMMARY

Unfair Dismissal

The issue was whether or not the employment tribunal had misdirected themselves as to the true nature of the implied duty of trust and confidence and erred in their assessment of the employee's claim that the employer had breached the duty.


 


THE HONOURABLE MR JUSTICE RIMER

1. This is an appeal against a decision of an employment tribunal sitting at Ashford, Kent and chaired by Mr J Sprack over five days in December 2003 and January 2004. The tribunal's extended reasons were sent to the parties on 15 March 2004. By their decision the tribunal dismissed the applicant's claim that he had been unfairly constructively dismissed and had been discriminated against unlawfully, contrary to the Disability Discrimination Act 1995.
2. The applicant now appeals against the dismissal of his unfair dismissal claim, but not against the dismissal of his disability discrimination claim. He is Mr Edward Went. He was represented before us, as before the employment tribunal, by Mr Daniel Tatton Brown. The respondent is his former employer, Sir Roger Manwood's School, which we will call "the school". The school was represented before the employment tribunal by Mr G A Edwards, the Area Personnel Manager employed by the Local Education Authority for the school, but before us it has been represented by Miss Lucy Bone.
3. Mr Went qualified as a teacher in 1990 and commenced his employment at the school in September 1998. The school is a mixed foundation grammar school in Sandwich. It has about 900 pupils and a staff of about 60. Mr Went was employed on a series of fixed-term contracts as a part-time teacher of craft, design and technology. He resigned from his employment on 17 September 2002. By his originating application, dated 13 December 2002, he claimed, so far as relevant, that the school had breached the duty implied in his contract that it would not do anything that would destroy the relationship of trust and confidence which should exist between it and Mr Went; that it had thereby repudiated his employment contract; and that he had resigned in response to such repudiation. His case was that he was constructively dismissed.
4. The school advanced no potentially fair reason for his dismissal so that if the claim of constructive dismissal was made out, it would follow that the dismissal was unfair. The tribunal found, however, that the school had not breached the implied term on which Mr Went relied, and so his unfair dismissal claim failed. It was also part of the school's argument that, if there had been a repudiatory breach of the employment contract, it was not the effective cause of Mr Went's resignation and he had anyway affirmed the contract. The employment tribunal did not deal with these last two points in their reasons but if, as Mr Went asks, the case is to be remitted for a rehearing, the school would wish to reargue those points as well.
5. The tribunal dealt with the constructive dismissal claim in paragraphs 61-69 and there made what are, on the face of it, clear findings of fact that the school had committed no breach of the implied term as to trust and confidence. Mr Went's complaint to us about those reasons, as summarized in his amended notice of appeal, is that the tribunal failed to apply specific consideration to the questions whether the conduct complained of was, at its lowest, likely seriously to damage the relationship of trust and confidence; and, if yes, whether there was reasonable and proper cause for such conduct. Put more generally, the complaint is that the tribunal did not apply the correct legal test or ask themselves the correct questions when disposing of the constructive dismissal claim. The question for us is whether that complaint is justified. If it is we would accept that, in principle, it would follow that the tribunal's decision was erroneous in law and that the appeal should succeed, although there is a difference between the parties as to what directions we ought, in that event, to give.

The facts found by the employment tribunal

6. Mr Went's complaint to the tribunal has its origin in the making on 18 March 2001 of complaints against him by four girls in Year 9. They made the complaints to their form teacher, Miss Lupton. She passed them on to Mr Taylor, the Head of Year 9, who on 19 March reported them to the Head Teacher, Mr Morgan. He consulted his two Deputy Heads, Mr Judd and Mr Thompson. They decided they should interview the girls before deciding what action to take. Mr Judd was the obvious candidate for that task as he was the school's designated Child Protection Officer. Unfortunately he was teaching that afternoon, whereas Mr Thompson was not, and so Mr Thompson conducted the interviews. He had received prior training in this area, and Mr Morgan regarded him as competent to undertake the task. He was accompanied by Mrs Urquhart, a senior member of staff who was there to offer pastoral support to the girls.
7. Having conducted the interviews, Mr Thompson reported to Mr Judd and Mr Morgan. They decided to seek support from the Local Education Authority. Mr Morgan telephoned Mr Gary Edwards, the Area Personnel Manager, whose advice was that the school should not conduct an investigation itself, but should refer the matter to Mr Ian Price, the Child Protection Co-ordinator for East Kent. Mr Morgan rang Mr Price, and his response was that he would have to interview the girls himself, subject to the prior consent of Mr Morgan and the girls' parents, which was duly obtained. At about this time two more girls made complaints about Mr Went.
8. Mr Price interviewed three of the girls on 23 March and the other two girls on 2 April. Once again, Mrs Urquhart was in attendance. On about 3 April Mr Price prepared what he called a "DRAFT REPORT – not for circulation." The general nature of the complaints from each girl he there recorded was similar, namely that Mr Went had allegedly made unnecessary physical contact with them, either in the course of walking past them, demonstrating equipment to them, brushing sawdust from them, or when seeking, for some reason, to move them. He was also alleged to have regularly made comments of a direct sexual nature, or with a clear sexual innuendo.
9. Mr Morgan had arranged for Mr Went to see him on 26 March, which was after the first of Mr Price's interview sessions, but before the second. At that meeting Mr Morgan gave Mr Went, as the tribunal found, "only a broad indication of the allegations against him". Mr Morgan followed that meeting with a letter of the same date to Mr Went, confirming the school's suspension of him pending the outcome of the investigation into the complaints. Mr Price had advised Mr Morgan that, in his experience, a suspension would be normal practice. The letter opened by saying that it was confirming what Mr Morgan had said that morning. It continued:

"Allegations of inappropriate physical contact and spoken sexual innuendo in the classroom have been made against you which, if proven, would constitute gross misconduct and child abuse. Whilst an investigation is undertaken I have told you not to come into school; this suspension is in no way punitive and you will continue to be paid as normal. As part of the investigation there will be an opportunity at a later date for you to hear the allegations in more detail and to respond to them. You will, of course, have the right to be accompanied at this meeting by a union representative or a work place colleague."

10. The letter told Mr Went that during his suspension he should not return to the school or have any contact with the staff or pupils. It confirmed Mr Morgan's advice that Mr Went should contact a personnel officer in his union. It continued:

"It is my intention, as stated at this morning's meeting, to keep the matter of your suspension as confidential as possible. Staff will, I am sure, assume that your absence can be explained by personal illness or an important matter of family concern."

11. Mr Morgan interviewed Mr Went on 25 April 2001. Mr Went was accompanied by Mr Reynolds, his union representative. At that meeting Mr Morgan provided further details of the allegations, although the tribunal does not detail such details, and the meeting was adjourned until 14 May in order to enable Mr Went and Mr Reynolds to consider them. The tribunal found that at the adjourned meeting Mr Went "refuted" all the allegations. His case was that any comments he had made had been misunderstood, and that any physical contact was accidental and unavoidable because of the cramped conditions of the workshop area.
12. Mr Morgan continued with his own investigation. He spoke to two of Mr Went's colleagues, Mr Beer and Mr Wilmott, neither of whom had observed or heard anything to cause worry about Mr Went's conduct. At Mr Morgan's request, Mr Thompson spoke further to some of the girls on 23 May. He took advice from Mrs Dovey, a personnel consultant, as to whether he should interview further pupils, and she advised against it, saying it would be helpful neither to the girls nor to Mr Went. Mr Morgan concluded that to do so would bring the issues to wider notice, cause distress to the girls, be disruptive to the school, delay any disciplinary proceedings, and make it more difficult for Mr Went to return to the school in due course. The Tribunal found this to have been a reasonable conclusion for Mr Morgan to reach.
13. Having reviewed the evidence, Mr Morgan concluded that there was a case to answer. He established a governors' disciplinary hearing, in accordance with the school's procedure. It was held on 6 July. The meeting was chaired by Mr Bradley, the vice-chairman of the governors, who sat with two other governors. The panel was advised by Mr Edwards. Mr Morgan presented a written statement of the investigation, which the tribunal found to be a balanced report, which reflected the allegations, the shortcomings in the girls' evidence, and Mr Went's explanation. Mr Morgan's statement annexed Mr Price's report, which he said formed the main basis of the school's case. It also annexed a copy of what Mr Morgan described as the "rough contemporaneous notes" taken by Mrs Dovey at the meeting held on 25 April and adjourned to 14 May. Mr Morgan's statement drew attention to the lack of any mention of times or dates when the alleged incidents were said to have occurred, and to the fact that the girls' evidence included alleged comments by Mr Went in relation to his teenage daughters, whereas Mr Went had no teenage daughters. The statement concluded:

"The question for the Panel is this: whether five girls have made a series of accusations ranging from sexual harassment to indecent assault for reasons of their own; or whether they have actually been exposed to harassment and assault at the hands of their teacher and have now asked for it to be stopped. If the Panel believe on the balance of probabilities that the former has been the case, they should dismiss the case against Mr Went and allow him back into the school straight away. However, if on the balance of probabilities and having heard both sides of the case, the latter is more believable, the Panel should give serious consideration to the termination of Mr Went's employment on grounds of gross misconduct."

14. Mr Edwards gave advice to the panel to ignore a recommendation of dismissal in Mr Price's report, and Mr Bradley accepted that advice and struck out that part of the report, making it clear that the panel would not rely on it. The hearing occupied a day. Mr Went was represented by Mr Reynolds. Both Mr Morgan and Mr Reynolds made closing addresses to the panel.
15. The tribunal found that the panel then gave "serious consideration to the evidence". Having done so, the panel nevertheless failed to make any detailed findings of fact as to which of the allegations were proved and which were not. That appears to us to be a surprising failure by the panel, but not one which they considered preventing them from concluding that Mr Went's actions still fell short of the standards to be expected of a teacher at the school. The panel's decision was that he should be issued with a second level warning and that he should be given a clear message that he needed to change his language and actions so as to ensure that he did not place himself in the same position again. The tribunal's finding was that the panel had taken the view that Mr Went might well have been naïve or unaware of the impact of his language and conduct on the girls.
16. Mr Bradley issued the warning by a letter to Mr Went of 11 July. The letter was headed "Second Level Written Warning". After referring to the disciplinary hearing it continued, so far as material:

"The allegations made against you were that you had behaved in an inappropriate way towards a number of female students of the school. These allegations were set out in the report submitted by Mr Price… and included alleged instances of:

inappropriate comments of a direct sexual nature or undertone

inappropriate direct physical contact

'moving' several girls on occasions by placing your hands on their waist, hips or lower hips

brushing sawdust from the front of girls over their breast area

The panel carefully considered all the evidence presented at the hearing in respect of the allegations including your medical submission and the testimony of your wife.

On the balance of probabilities the panel found that there was sufficient evidence to substantiate some of the allegations made against you. The panel was particularly impressed with the clarity and consistency of the evidence from Mr Thompson, Mrs Urquhart and Miss Lupton. The panel also accepted your evidence that there did not seem to be any apparent motive for your actions but still found that your conduct fell short of the standards expected of a member of staff at this school. As a professional teacher it is your responsibility to ensure that your comments, intentions and actions cannot be misconstrued so as to cause children to be embarrassed and upset.

For these reasons the panel find that your actions constitute serious misconduct and have, therefore, decided that you shall receive a second written warning for this. This action will remain on your file for at least 12 months and will be reviewed at that time."

17. The letter advised Mr Went that he had a right of appeal, with any appeal being in writing, setting out the grounds and sent to the clerk to the governors within five days. It told him that Mr Morgan would be in contact to discuss the practical arrangements of his return to work. Although Mr Went was expected to return to work in September 2001, at the commencement of the autumn term, he did not do so. He produced a medical certificate in September which signed him off work for two weeks and wrote to the school saying that the state of his health was the direct result of untrue allegations. Mr Morgan wrote to him offering to support his return and offering to meet him or to give him the alternative of having a senior colleague visit him at home. Mr Went rejected that offer and produced a medical certificate supporting four more weeks of sickness absence.
18. On 18 September, Mr Reynolds lodged an appeal. It was out of time, but Mr Morgan, Mr Bradley and Mr Kilbee, who was the chairman of the governors, agreed to extend the time for appealing to permit an appeal. Mr Morgan suggested to Mr Went that he should have a meeting with the Occupational Health Adviser. Mr Went responded on 4 October, saying he had no confidence in Mr Morgan, who had been "anxious to convict [him] of a serious crime".
19. On 13 November Ms Bader, of the Occupational Health Service, wrote to Mr Morgan saying that Mr Went was unfit for the full duties of his job by reason of a medical condition for which he was receiving treatment. She was unable to predict a return to work date.
20. The appeal took place on 20 December and occupied a full day. The chairman of the appeal panel, Mrs Judd, communicated the result to Mr Went on 9 January 2002. The letter of decision read as follows:

"The Panel, after lengthy consideration of all the documentation presented to it by both sides and having heard comprehensive verbal and written evidence, in response to Mr Went's grounds for appeal in Mr Reynolds' letter [of] 18^th September 2001, and applying the criteria of balance of probabilities the panel has decided that:-

1. The decision letter dated 14^th September 2001 does not fully reflect the statement read out by the Chairman at the end of the original disciplinary hearing.

2. The decision letter fails to specify which of the allegations were found to be substantiated.

3. The school did not conduct a fully impartial and thorough investigation. This was acknowledged by Mr Bradley, as the panel did not wish to spread the enquiry more widely through the school.

4. The panel acknowledged that this item had been withdrawn.

We unanimously agree to uphold part of the disciplinary decision, but [sic] on the balance of probabilities, it was felt that some of Mr Went's language was not appropriate in a school context and that he should take note of this.

It has been established to the panel's satisfaction that the alleged incidents could only have taken place in the short space of time after Mr Went's return from hospital. [That was a period from the latter part of February 2001].

We feel that on the balance of probabilities Mr Went behaved inappropriately, since we do not believe that the girls would have been acting in concert.

However, we feel that the matter is sufficiently serious to warrant a first level written warning."

21. We comment that, somewhat bizarrely, this letter was little more precise as to the findings against Mr Went than had been Mr Bradley's. The panel apparently found that "some of Mr Went's language was not appropriate" (although we do not understand the "but" in the relevant sentence) but it provides no further clarity as to what it was finding him guilty of, nor, in particular, does it make it clear what allegations against him it held were not proved. One allegation, for example, was a particularly offensive one made by two girls that he had, in effect, publicly condoned the enjoyment by the boys in the workshop of a pornographic magazine, saying that he derived his own like pleasure by watching his teenage daughters in the bath. Mr Went has forcefully denied that allegation, but to this day he does not know if it was found proved or not.
22. In the meantime, Mr Went remained on sickness absence. Mr Morgan wrote to him on 25 January 2002 proposing a meeting to discuss a managed return to work, a letter to which Mr Went did not reply. Mr Morgan wrote again on 6 March, suggesting that Mr Went should have a further meeting with the Occupational Health Adviser, and again offering a meeting with him.
23. On 17 April 2002, Mr Went wrote to Mr Kilbee, complaining about the way the disciplinary process and its aftermath had been handled. Mr Kilbee replied on 24 May, suggesting that a line should be drawn under the matter and re-iterating Mr Morgan's offers to have a meeting. In the meantime, on 22 April, the Occupational Health Adviser wrote to Mr Edwards saying that Mr Went was unfit to return to work, although he was very keen to do so. Mr Went continued to provide medical certificates.
24. On 12 June, there was a meeting between Mr Morgan and Mr Went, also attended by Mr Reynolds. They agreed an overall plan for Mr Went's phased return to work. Mr Went made no suggestion that he had any outstanding grievance which would prevent this. It was agreed that the phased return should be reviewed in July. On 20 and 21 June, however, Ms Bader e-mailed and wrote to Mr Edwards saying that Mr Went remained unfit to return to work and that he anyway did not feel he could return to the school. She said she had discussed redeployment options with him.
25. Despite the agreed phased return to work, Mr Went did not return and he continued to submit medical certificates. On 23 July, Mr Morgan wrote to him saying he was referring his case to the governors so that they could consider the impact of his long-term absence on his employment. Mr Went's response on 29 July was that Mr Morgan was seeking his dismissal. He followed that up on 3 August, saying that he had written to the chairman of the governors detailing grievances against Mr Morgan and other staff members. He asked for a copy of the grievance procedure which Mr Morgan provided on 22 August and seven days later Mr Went submitted a grievance notification form to the chairman of the governors. He wanted disciplinary action to be taken against the members of staff involved in his case.
26. Mr Kilbee took advice, which was that the school's grievance procedure specifically excluded disciplinary matters. He was also concerned that to open up the numerous complaints that Mr Went wished to make would be damaging to the school, its staff and children. He had in mind that Mr Went had already made an appeal against the original disciplinary decision. His view was, therefore, that the central matters of complaint could not be the subject of a grievance hearing, which would anyway be undesirable, and that the other matters which Mr Went had raised were essentially in the nature of day to day management matters which Mr Kilbee considered could be dealt with by Mr Morgan. Mr Kilbee wrote to Mr Went to this effect on 10 September, saying that Mr Morgan had been asked to respond to those complaints which related to matters occurring since the appeal hearing. The result was that Mr Morgan wrote to Mr Went proposing a meeting on 13 September. The response from Mr Went on 17 September was his letter of resignation. His application to the employment tribunal followed on 13 December.

The relevant law

27. Having so found the facts, the tribunal turned to the law on constructive dismissal. They referred to section 95(1)(c) of Employment Rights Act 1996, which we will take as read. They referred to Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 as authority for the proposition that:

"an employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract."

They referred to Lewis v Motorworld Garages Ltd [1985] IRLR 465 as illustrating the "last straw" doctrine in the context of constructive dismissal by reason of a series of actions by the employer which collectively amount to a breach of the implied term of trust and confidence. The passage they quoted was from Glidewell LJ's judgment at page 469, as follows (although we will quote the whole of the relevant paragraph):

"The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, although each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is does the cumulative series of acts taken together amount to a breach of the implied term? see Woods v W M Car Services Ltd [1981] IRLR 347. This is the 'last straw' situation."

The tribunal said that the Lewis case was authority for the proposition that conduct is repudiatory, viewed objectively, if it evinces an intention no longer to be bound by the contract.

28. We agree with the essence of the principle just stated, but add that in a case in which a breach of the implied term as to trust and confidence is alleged and proved, such a breach will inevitably mean that there has been a fundamental or repudiatory breach going to the root of the employment contract: see Morrow v Safeway Stores plc [2002] IRLR 9. We should also identify the precise nature of this implied term, something which the tribunal nowhere did. Counsel were agreed as to its correct formulation and we take it from Gogay v Hertfordshire County Council [2000] IRLR 703, as described in paragraph 53 of Hale LJ's judgment, where she said:

"It is now well settled that there is a mutual obligation implied in every contract of employment, not, without reasonable and proper cause, to conduct oneself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee."

29. As appears from that formula, potentially two questions arise in the context of a consideration of whether a particular action or course of action by an employer has amounted a breach of the implied term. First, was the conduct likely to destroy or seriously damage the relevant relationship? Secondly, and if so, was there reasonable and proper cause for such conduct? If the answer to the second question is yes, then there will be no breach of the term. In Hilton v Shiner Ltd - Builders Merchants [2001] IRLR 727, this appeal tribunal, in a judgment delivered by Mr Recorder Langstaff QC, suggested that although there is clearly this twofold element to proof of a relevant breach, there is or may be an element of artificiality in dividing the relevant questions up in this way and that it is not an approach which has to be applied to every set of facts by rote. He said, however, that in certain types of case it can be helpful. He said, in paragraph 23:

"To take an example, any employer who proposes to suspend or discipline an employee for lack of capability or misconduct is doing an act which is capable of seriously damaging or destroying the relationship of trust and confidence between employer and employee, whatever the result of the disciplinary process. Yet it could never be argued that an employer was in breach of the term of trust and confidence if he had reasonable and proper cause for the suspension, or for taking the disciplinary action. The distinction is clear from a case such as Gogay v Hertfordshire County Council [2000] IRLR 703. There an employee was suspended. Suspension was permissible under the contract. However, the right to suspend that individual in the circumstances of the case was the result of a capricious decision. There was no reasonable nor proper cause for it on the facts. The Court of Appeal upheld a finding that there had thereby been a breach of the implied term of trust and confidence."

30. The Gogay case, to which we have referred earlier and which the employment tribunal also mentioned in paragraph 65 of their extended reasons, is worth looking at a little more closely, since it can be said to bear some similarities to the circumstances of the present case. Ms Gogay was a residential care worker in a children's home. One of the children in her care was a child with learning and communication difficulties. We do not propose to summarize the background facts about the child and her problems and her relationship with Ms Gogay, which can be found in the judgment of Hale LJ. Suffice it to say that there came a point that when the child made remarks about Ms Gogay which caused the defendant Council to institute an investigation under section 47 of the Children Act 1989. The Council promptly suspended Ms Gogay, informing her in a letter that:

"The issue to be investigated is an allegation of sexual abuse made by a young person in our care."

The outcome of the investigation was that there was no case to answer against Ms Gogay. The letter and her suspension nevertheless caused her considerable distress and she sued the Council for damages for breach of the implied term of trust and confidence. The judge upheld her claim and awarded her damages. The Court of Appeal dismissed the appeal. We hope that the citation of the following paragraphs from Hale LJ's judgment will be sufficient to convey the learning from the case which is of relevance for present purposes:

"55. Did the authority's conduct in this case amount to a breach of this implied term? The test is a severe one. The conduct must be such as to destroy or seriously damage the relationship. The conduct in this case was not only to suspend the claimant, but to do so by means of a letter which stated that 'the issue to be investigated is an allegation of sexual abuse made by a young person in our care.' Sexual abuse is a very serious matter, doing untold damage to those who suffer it. To be accused of it is also a serious matter. To be told by one's employer that one has been so accused is clearly calculated seriously to damage the relationship between employer and employee. The question is therefore whether there was 'reasonable and proper cause' to do this.

56. In my judgment,there clearly was not. The information considered by David Gibson and strategy meeting was indeed 'difficult to evaluate'. The difficulty was in determining what, if anything, EL was trying to convey. It warranted further investigation. But to describe it as an 'allegation of sexual abuse' is putting it far too high. A close reading of the records coupled with further inquiries of the therapist were needed before it could be characterised as such.

57. Furthermore there was then a need to consider carefully what to do about the member of staff concerned. Was there indeed any reason to suppose that she had broken the guidelines for working with EL? How easy would it be to check? If there was some reason, however slight, it might indeed be right to separate her from EL for a short time. But how should this be done? Miss Sinclair argues that transfer was impossible because all the people in their care are vulnerable. But that leaves out of account the particular circumstances in this case. It is difficult to accept that there is no other useful work to which the claimant might not have been transferred for the very short time that it ought to have taken to make the further inquiries needed. It is equally difficult to accept that some other step might not have been contemplated, such as a short period of leave. In any event, given the timescale involved, what was the rush?

58. The authority's own guidelines point out that 'child sexual abuse rarely needs to be responded to as a crisis, but calls for a cool, clear and structured response' (see paragraph 33 above). Instead what happened here was an immediate 'knee jerk' reaction. Had Janice Maher had a clearer picture of the limited information available to the strategy meeting, the difficulty in evaluating it, and the simple inquiry needed to deal with the meeting's principal concern, she would surely have hesitated before sending a letter in the terms which she did. Her evidence was that she was 'amazed' that there had been a section 47 investigation and a suspension for what turned out to be no cause.

59. On analysis, therefore, the actions of the local authority towards the claimant in this case were indeed in breach of its implied obligation not without reasonable and proper cause to act in a way which seriously damaged the relationship of confidence and trust between them. But in reaching this conclusion, I would not want local authorities to feel in any way inhibited in making the inquiries which they feel appropriate to safeguard the children in their care. Nor should there be any doubt that if there is a conflict between the interests of a child in their care and the interests of an employee, the interests of the child should prevail. But the employee is entitled to something better than the 'knee jerk' reaction which occurred in this case."

31. Reverting to the present case, the question for the employment tribunal was whether the school had acted towards Mr Went in a manner likely to destroy or seriously damage the trust and confidence between them and, if so, whether the school had so acted with reasonable and proper cause. In that context it is also helpful to notice the observations made by Lord Steyn in Malik v Bank of Credit & Commerce International SA [1997] ICR 606 at 622:

"Secondly, given the existence of an obligation of trust and confidence, it is important to approach the question of a breach of that obligation correctly. Mr. Douglas Brodie, of Edinburgh University, in his helpful article to which I have already referred put the matter succinctly, at pp. 121-122:

"In assessing whether there has been a breach, it seems clear that what is significant is the impact of the employer's behaviour on the employee rather than what the employer intended. Moreover, the impact will be assessed objectively."

Both limbs of Mr. Brodie's observations seem to me to reflect classic contract law principles and I would gratefully adopt his statement."

That passage shows that in the course of an assessment as to whether there has been any conduct by the employer likely to damage the relevant relationship, the objective approach which is required includes, in particular, an assessment of the effect of the employer's conduct on the employee.

The employment tribunal's findings on these questions

32. It is a shortcoming of the tribunal's reasons that they nowhere articulate the precise terms of the relevant implied term and nowhere direct themselves that a comprehensive consideration Mr Went's case required them to embark on the twofold analysis to which we have referred. Nevertheless, the tribunal made full findings on the allegation that there had been a breach or breaches of the implied term. They did so in paragraphs 61-69 of their decision. We must summarize their essence.
33. The tribunal started, in paragraph 61, by saying that the first matter to be decided was whether there was a fundamental breach or breaches of contract such as to justify Mr Went's resignation. They went on to say that they "bore in mind" that he put his case on the basis of a breach of the implied term. They said that in considering the allegations they had to come to conclusions as to how the school conducted its investigation and the way it had dealt with them subsequently: it was important to take an overall view of what the school had done. They held that the school acted in accordance with the Council's Child Protection Policy in the manner in which it dealt with the complaints. Mr Morgan was advised to refer the matter to Mr Price, and he did so. The school was not engaging Mr Price's services, but he was making the investigations he did in order to establish whether the threshold for a formal investigation by statutory agencies was reached. The tribunal said that the procedure adopted was "part of" Mr Went's contract. They also held that his contract

"allowed for suspension in these circumstances, and it was reasonable in all the circumstances."

They held that at this early stage, whilst the matter was still subject to initial inquiry:

"the school was justified in accepting the advice of Mr Price that the allegations appeared to come within the broad understanding of child abuse".

The tribunal said that Mr Morgan's letter of 26 March 2001 (earlier quoted) was "clumsily worded" and that the opening sentence should have used the word "might" rather than "would". They said it was clear from subsequent events that the school did not consider that Mr Went had committed child abuse in the sense of any "intentional indecent act".

34. As for the scope of the school's investigation, the tribunal held it was acceptable practice for the school to use the reports made by the investigators. They said the school was understandably anxious to avoid the children being involved in a further round of interviews. They concluded that the way Mr Morgan carried out his duties in connection with the investigation was reasonable given his wish to keep it within reasonable bounds from every point of view. They said the statements from Mr Wilmott and Mr Beer should have been put in evidence at the disciplinary hearing, but they said that this was not a major defect as Mr Reynolds, an experienced union official, had the opportunity of interviewing staff members and one member of staff gave evidence at the hearing. They held it was proper for Mr Thompson to have conducted the initial interviews with the girls.
35. They held that the disciplinary hearing was fairly conducted, and we have earlier summarized their findings made in that connection. The tribunal said that the panel considered the matter in some detail, although they added that it would have been more satisfactory if they had made detailed findings on what had been proved and what had not. But they said it was clear that the panel did not conclude that this was a case of child abuse in what the tribunal called "the vernacular sense". The tribunal held that the school's actions in allowing Mr Went to appeal were correct and that the appeal process was fair and full. They likewise said it was unfortunate that the appeal panel did not make more detailed findings of fact. They said it was clear from the panel's conclusions that they found Mr Went guilty of no more than inappropriate language and conduct, but not child abuse.
36. The tribunal said that the matters for which they criticized the school – which we would summarize as the writing of the "clumsily worded" letter, the omission to include the evidence of Messrs Wilmott and Beer and the failure of the two panels to make detailed findings – did not individually constitute a fundamental breach of contract. The tribunal continued, in paragraph 65, as follows:

"We went on to look at whether, taken cumulatively, they could be considered to be a fundamental breach of the implied term of mutual trust and confidence. In so doing, we bore in mind the particular need for care in investing cases of this nature (A v. B [2003] IRLR 405). We were also aware that suspension could be capable of being a breach of the duty of mutual trust (Gogay v Hertfordshire County Council [2000] IRLR 703). However, taking the investigation and the hearings in the round, we concluded that the Respondent had measured up to the appropriate degree of care for a case of this nature. Further, we considered that suspension was a reasonable course of action in this case, and that it was not either in itself or taken together with the other defects which we have mentioned, a fundamental breach of contract. The school was doing its best, during the course of these proceedings, to deal with a difficult situation, and in due course, to get Mr Went back to work. Viewed objectively, its actions did not evince an intention no longer to be bound by the contract (Lewis v Motorworld Garages Ltd)."

37. The tribunal then said that, as to the refusal to use the grievance procedure at Mr Went's behest, the procedure itself excluded disciplinary matters. Mr Kilbee handled the matter in a way which was perfectly permissible. Mr Morgan had made sound and sensible efforts to get Mr Went back to work. The tribunal said that:

"There was no breach of contract, fundamental or otherwise, in the way in which relations with Mr Went were handled after the appeal."

They concluded their reasons by saying, in paragraph 69:

"We again looked at whether there was a fundamental breach of contract if one viewed the events cumulatively. We concluded that there was not. It follows that there was no justification in law for Mr Went's resignation, and questions of causation, affirmation and waiver fall by the way."

The submissions to us

38. Mr Tatton Brown, in his submissions on behalf of Mr Went, advanced a sustained critical attack on the tribunal's reasons. He said, rightly, that at no point did the tribunal set out the terms of the implied term of trust and confidence. Nor did they at any stage make any express finding as to whether the relevant events, whether looked at individually or cumulatively, were likely to destroy or seriously damage the relationship of trust and confidence to which the tribunal barely made any reference. They did not engage in any objective assessment of that inquiry by considering the impact of the school's acts upon Mr Went. They focussed on the question primarily by assessing the reasonableness or otherwise of the acts from the school's perspective. He said they dealt inadequately with Mr Went's complaints about the letter of 26 March 2001. Their decision was that the school was entitled to accept Mr Price's advice that the allegations came within the broad understanding of child abuse, although they accepted that the "would" rather than "might" in the first sentence of the second paragraph was clumsy wording. But they also said that subsequent events showed that the school did not consider that Mr Went had committed child abuse.
39. Mr Tatton Brown contrasted this approach with that of Hale LJ in the Gogay case, in particular in paragraphs 55 and 56 of Hale LJ's judgment. That approach demonstrated the caution that an employer should adopt in a case such as the present, and Mr Tatton Brown said that for the school to say to Mr Went that, in effect, allegations of gross misconduct and child abuse had been made against him was plainly to put the case much too high, at least as regards the allegation of child abuse. He said that so to describe the matter, and to accompany it by an immediate suspension, was clearly likely to undermine trust and confidence. He said the tribunal's description of the choice of the "would" as clumsy was no answer: using clumsy wording as ill-chosen as this is no excuse, particularly when the school's own disciplinary procedure provides that:

"it is important that all communication with the employee, including the meeting to consider suspension, is conducted with care and sensitivity".

It was implicit in Mr Tatton Brown submission that he criticized the school for not using enough care and sensitivity in the manner in which they framed that very important letter.

40. Mr Tatton Brown also submitted that, to the extent that the tribunal held that Mr Morgan had relied on Mr Price for the assertion that the allegations, if proved, would amount to child abuse, that conclusion was apparently contrary to the evidence before the tribunal in the shape of letters dated 10 May 2001 and 20 September 2002 from Mr Price's successive employers. The point which both letters appear to make is that Mr Price concluded at the outset, and before he conducted his interviews, that the allegations did not reach the threshold of child abuse. The tribunal did not deal with that evidence in expressing the rather different view as to the facts that they did, from which it appears that they simply accepted Mr Morgan's evidence as to what Mr Price had told him. We should say that we do not attach much weight to this particular submission from Mr Tatton Brown. Mr Price could have been called as a witness but was not, and so there was no evidence from him as to what he did or did not say to Mr Morgan and we cannot see why, in those circumstances, the tribunal were not entitled to accept Mr Morgan's evidence on the point.
41. Mr Tatton Brown also criticized the tribunal's apparent view, to be found at the end of paragraph 61 immediately after dealing with the complaints of the letter of 26 March, that the school's subsequent acceptance that there had not been any child abuse somehow retrospectively put right any damage caused by the letter of 26 March and the immediate suspension. In the Gogay case Ms Gogay was subsequently cleared of all allegations against her, but that did not prevent the Council's initial knee-jerk reaction from amounting to a breach of the implied term of trust and confidence. The tribunal in the present case simply did not address this point. In particular, they did not address the question of whether the clumsy wording of the letter of 26 March was likely to damage the relationship of trust and confidence; or, if so, whether there was any reasonable and proper cause for such clumsiness in such a sensitive matter; or how, as the tribunal appears to have thought, the school's later acceptance that Mr Went had not been guilty of child abuse was relevant to the original impact upon him of the letter of 26 March.
42. Mr Tatton Brown next criticized the handling by the school of the disciplinary and appeal hearings and the tribunal's treatment of those matters. He said in his skeleton argument that the school had never spelt out the details of the charges to Mr Went. He did not press that in his oral argument. We are not confident that that is in fact a fair criticism and we consider it probable that, at least by the time of the disciplinary hearing, and probably rather before that, Mr Went did know the details of the charges. What he also knew, however, was that the school had characterized them as amounting to allegations of gross misconduct and child abuse. The allegations against Mr Went were of conduct which, if it happened, cannot be condoned and they were particularly serious by reason of the fact that they were allegations of conduct in relation to vulnerable teenage girls who were his pupils. But on the face of it they did not amount to child abuse. That, however, was how the school had originally chosen to characterize them and Mr Tatton Brown said that it was of paramount importance to Mr Went that the disciplinary panel should have made clear findings of precisely which allegations were proved and which were not. The panel's failure to make such findings was, he submitted, a remarkable omission which was foreseeably likely to leave Mr Went in a state of uncertainty as to where he stood and what he had been guilty of.
43. Among other things, Mr Tatton Brown submitted that it presented Mr Went with a difficulty with regard to any ability to appeal. He did in fact appeal against the disciplinary hearing's decision, but Mr Tatton Brown was similarly critical of the outcome of that. The appeal panel rightly criticized the disciplinary panel for failing to specify which of the allegations were found proved and which were not, but it nevertheless upheld part of the panel's decision, although it still did not inform Mr Went precisely what he had been found guilty of – a failure on the part of the appeal panel which, in the light of its criticisms of the disciplinary hearing, is surprising. The important point from Mr Went's point of view was that he had originally been told by the school that he stood accused of gross misconduct and child abuse but still, even after the hearing of the appeal, did not know of what he had been found guilty and of what he had been acquitted. The tribunal's attitude to these findings by the disciplinary panel and the appeal panel is that they were, in effect, no more than unsatisfactory and unfortunate shortcomings. Mr Tatton Brown submitted that this disposal of the points was itself unsatisfactory and unfortunate. What the tribunal did not do was to ask themselves whether these failures breached the duty of trust and confidence, nor, necessarily, did they answer that question. In particular, they did not consider their impact on Mr Went. Mr Tatton Brown submitted that the obvious answer to these questions, had they been put, was that the implied term was breached. He said that to accuse a man falsely of child abuse and then, without any proper explanation of the outcome of the allegations, merely give him a warning, was itself likely to undermine trust and confidence. It left Mr Went in a state of uncertainty as to where he stood. Mr Tatton Brown identified one particular feature which highlighted the unsatisfactory nature of the panel's disposal of this matter, namely the allegation about what Mr Went was alleged to have said with regard to his teenage daughters. We have referred to that earlier. That was not an allegation of child abuse, but was one of gross misconduct, one which, as we have said, Mr Went forcibly denied but he does not know whether this allegation was found proved or not.
44. Mr Tatton Brown also submitted that even though Mr Went had apparently been cleared of child abuse, he was, in effect, treated as if he had been found guilty of something very serious. On 14 September 2001, Mr Bradley wrote to Mr Reynolds saying that as the matter was one of child protection, the time-limit for the warning was one to which paragraph 17 of the school's disciplinary procedure applied. Paragraph 17 is one which applies exclusively to cases of "child abuse" and provides that the warning will not be removed from files but will be reviewed after a period of five years. That can only have sent a confused and confusing message to Mr Went, and it is probably no coincidence that within four days he made it clear that he wanted to appeal against the decision that had been made against him. But on 28 September 2001 Mr Bradley appears to have reconsidered the position, having in the meantime received a response from Mr Reynolds. On that day he wrote to Mr Went saying that the warning would remain on the school file for just one year, but that:

"the Area Child Protection Officer of the LEA will be advised of the action taken by the school and requested to review the information held on that file after a period of five years."

So, on a basis which was apparently not in evidence before the tribunal – and nor, we should say, before us – some undefined information relating to the case was being filed with the LEA for at least five years. Mr Tatton Brown submitted that there was no evidence that this was pursuant to any statutory obligation or regulation, and although Miss Bone told us, on instructions, that it was, she was not in a position to put any material before us enabling us to adjudge precisely what the nature and effect of those obligations or regulations are. The tribunal did not even mention the point in their reasons, even though it was one of the matters argued before them as likely yet further to cause damage to the relationship between employer and employee.

45. Mr Tatton Brown submitted that the mishandling of the matter by the disciplinary tribunal, and its immediate aftermath in the respects to which we have referred, simply added to the breakdown of trust and confidence. He said that the proof of the school's incompetent pudding (although we make clear that those particular words are ours rather than his) was manifested by Mr Went's letter to Mr Morgan of 4 October 2001, in which he wrote that he found it "impossible to come to terms with the hearing outcome that has found me guilty of serious misconduct and child abuse". Mr Tatton Brown says that it is all very well for the tribunal to find that the disciplinary hearing had acquitted Mr Went of this, but the apparent fact of the matter is that the school's conduct appears to have left Mr Went in a state of confusion about the position. The tribunal made no reference to this either. Mr Went's reaction to the outcome of the disciplinary hearing and its aftermath was highly relevant to any objective assessment of whether the matters of which he was complaining had caused a breakdown of trust and confidence in the school, but the tribunal simply made no reference to the matter.
46. In summary, Mr Tatton Brown submitted that the tribunal erred in law in their failure to ask themselves the relevant questions or, necessarily, to answer them.
47. Miss Bone, in defence of the tribunal's decision, submitted that the tribunal properly directed themselves as to the law by referring, in particular, to the Lewis and Western Excavating cases, and she said that, at paragraph 61, they correctly identified that the question for them was whether there had been a fundamental breach justifying Mr Went's resignation. She acknowledged that the tribunal nowhere directed themselves expressly to the precise terms of the implied term as to trust and confidence, but said that the full written submissions put before them by Mr Tatton Brown at the hearing referred to "the reasonable and proper cause" element of the term. She said the tribunal made express reference to that skeleton argument and so must be regarded as having had the correct principle in mind in their analysis of the evidence. She said the tribunal made an express reference to the Gogay case in a context showing they had recognized that suspension may be a breach of the relevant duty. She said they clearly recognized the possibility of a breach of the implied term at every relevant stage of the history of the matter. She said that the mere fact that they did not spell out the nature of the implied term did not mean that they had not correctly applied it in their consideration of the facts. She said that the Hilton case shows that it is not necessary in every case to assess the facts by way of the twofold test which that case identifies, and that the tribunal in the present case cannot be criticized for not doing so. She said it was for the tribunal, as the tribunal of fact, to find whether, on the facts, there had been any breach of the implied term and that this appeal tribunal should be slow to conclude that their decision on this was wrong. She said the tribunal had made clear factual findings that there had been no breach. She said the school's subsequent conduct in relation to Mr Went, in particular its willingness to introduce him into the school, made it manifest that it did not regard him as guilty of any form of child abuse.

Conclusions

48. Largely for the reasons submitted by Mr Tatton Brown, we have come to the conclusion that the tribunal did misdirect themselves in law in their approach to the facts. Their analysis of the facts in paragraphs 61-69 gives us no confidence that they had correctly identified the task they had to perform. The failure to identify the precise nature of the implied term as to trust and confidence is not of course, by itself, a fatal omission and we entirely agree with Miss Bone's submission to that effect. If we were satisfied that the tribunal's analysis of the facts reflected a clear understanding of what they needed to consider in order to decide whether or not there had been a relevant breach, then it would matter not that they had not gone to the lengths of first spelling out the nature of the term. It is, however, usually sensible practice for any decision-making tribunal first to remind itself expressly of the legal principle that it has to apply to the facts, since to do so is usually a helpful exercise of discipline in focussing the tribunal's mind on the particular issue that it needs to address.
49. In this case the tribunal did not do that. They opened their discussion in paragraph 61 by saying that they "bore in mind that [Mr Went] put his case upon the basis of a breach of an implied duty mutual trust and confidence". But their subsequent discussion does not reflect any clear understanding of the true nature of that duty. We hope it is not an inaccurate summary of the tribunal's approach to say that they appear to have been of the view that what they had to consider was whether, at the various relevant stages, the school had acted reasonably. We accept that so to characterize the relevant question is not necessarily all that distant from the twofold characterization identified in Gogay and Hilton. It is, however, not the correct characterization and we are not satisfied that the nature of the implied term can safely be re-written in the way in which, by inference, the tribunal appears to have re-written it. A careful consideration of the Gogay case ought to have put them on the right track, but we confess to a real concern that their passing reference to it reflects that they cannot have given it proper consideration. It was a case which, in principle, bore close similarities to the case before them. It made clear that it was not just the suspension of Miss Gogay which amounted to a breach; it was also the terms of the letter written to her. We do not, of course, suggest that it provided a precedent for the disposal of the present case. Gogay turned on its own facts just as does the present case. But we do find it surprising that the tribunal did not refer more fully to Gogay as being an authority which at least provided clear guidance as to the way in which they should approach the particular facts before them. We have, for example, referred to the fact that in paragraph 61 they refer to the subsequent acquittal of Mr Went of child abuse allegations in a context which suggests they considered it somehow undid any damaging effect that the "clumsily worded" letter of 26 March 2001 might have had on him. We do not understand how or why they considered it did so, nor do they explain it, and a reading of the Gogay case would suggest that it probably could not and did not.
50. We also accept the essence of Mr Tatton Brown's submissions in relation to the disciplinary hearing, its outcome and its aftermath and in relation to the appeal. Put shortly, the school had told Mr Went that he stood accused of gross misconduct and child abuse. To be so accused was a matter of potentially massive seriousness for him. The outcome of the disciplinary hearing was that Mr Went was informed by Mr Bradley's letter of 11 July 2001 that despite the claimed careful consideration of the evidence and submissions, the panel's decision was that:

"On the balance of probabilities the panel found that there was sufficient evidence to substantiate some of the allegations made against you."

He was not told what they were, nor was he told what was not proved against him, although he was told that his actions nevertheless constituted serious misconduct. It appears to us obvious that in a case of this seriousness that that was simply not good enough. Mr Went was entitled to be told what had and had not been proved against him and the state of uncertainty in which it left him, no doubt compounded by Mr Bradley's subsequent letters of 14 and 28 September 2001 to Mr Reynolds, must, on the face of it, have been very damaging to his continued trust and confidence in the school. The tribunal simply dismissed this shortcoming on the part of the disciplinary panel by saying it was unsatisfactory and unfortunate. That may be correct, but it was also a major understatement. What the tribunal did not do was to ask themselves the right question in relation to this aspect of the case, and so it is not surprising that they did not come up with a correct answer.

51. We are also concerned that the tribunal misunderstood the nature and effect of the implied term in another respect. In paragraph 65, they said that they did not consider that any of the matters of which they criticized the school individually constituted a fundamental breach of contract. They went on to say that they considered whether cumulatively they could be considered "a fundamental breach of the implied term of mutual trust and confidence" and concluded that they did not. Their use of the phrase "fundamental breach" in the latter quotation causes us to question whether they considered that there can be some breaches of the implied term which are not fundamental and so do not give rise to a repudiatory breach. We consider that the natural inference from the tribunal's language is that this was their view. The whole of paragraph 65, which we have earlier quoted, suggests to us that what they were looking for was whether the school had done anything which individually or cumulatively evinced an intention not to be bound by the employment contract. They concluded that it had not, and we are disposed to accept that, if the question is posed in that way, their answer was an understandable one. However, their analysis ignores the fact that every breach, whether fundamental or not, of the implied term as to trust and confidence is a repudiatory breach (see the Morrow case, to which have referred and to which they were also referred by
    Mr Tatton Brown in his skeleton argument), whereas the tribunal's references to the need to identify a "fundamental" breach of the implied term suggests to us that they had overlooked this.
52. For these reasons we conclude that the tribunal embarked on a consideration of the evidence on the basis of what we can only conclude was a mistaken understanding of the relevant law and of the particular questions which they needed to ask themselves. We find that they misdirected themselves. It is not for us to purport to make findings by reference to the correct direction. We will, however, at least say that Mr Tatton Brown identified some powerful factual points to which the tribunal do not appear to have given proper consideration. Had the tribunal considered those points against the background of a correct self-direction, we consider it at least possible that they would have come to a different conclusion, although we do not, of course, say that they would have done.
53. In the circumstances, we propose to allow the appeal. We will set aside paragraph (1) of the tribunal's decision and remit Mr Went's unfair dismissal application for a rehearing. We had some debate as to whether the remission should be to the same tribunal or a freshly constituted one. Whilst we do not question that the same tribunal could and would approach a rehearing with professional objectivity, in the circumstances of this case we consider that better justice will be achieved and, most important, be seen to be achieved, if the matter is remitted to a freshly constituted tribunal. Much of Mr Went's complaint about the decision made by this tribunal is that they simply did not consider important aspects of his case. We have little doubt that he will view as unfair the notion that he should have to try once again to persuade this tribunal of the rightness of his case when it has, to date, made positive adverse findings of fact against him. We will, therefore, remit the matter for a rehearing to a freshly-constituted tribunal.