United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	MR IAN TRUSTCOTT QC Instructed by: Messrs Simpson & Marwick 48 Queen's Road Aberdeen AB15 4YE
For the Respondent	MR RAJEEV THACKER (Of Counsel) Instructed by: Messrs John Halson 26 Hope Street Liverpool L1 9BX

SUMMARY

The ET was entitled to find on the facts that the Claimant was constructively dismissed, although he had misunderstood what was said to him by his ship's Chief Engineer. There were other matters that the ET was entitled to find amounted to a 'last straw,.


 


HIS HONOUR JUDGE D SEROTA QC

1. This is the appeal of the Respondent from a decision of the Employment Tribunal at Liverpool of which Miss H J Slater was the Chairman. The decision was sent to the parties on 27 April 2004. The Employment Tribunal found that the Claimant, as we shall now call him, had been constructively dismissed. The Claimant, was a motorman on the Clwyd Supporter, this is a standby vessel operated out of Liverpool by the Respondent, which provides safety cover to offshore installations.
2. Mr Struth joined the Respondent, we think, in about 1998, and was one of 12 motormen employed by the Respondent. Six of those motormen were employed on Clwyd Supporter which had two alternate crews so there would be three motormen on the Clwyd Supporter at any one time. The other ships in the fleet only would have one or two motormen and sometimes none, so there would be only the most limited opportunity for a transfer as a motorman from the Clwyd Supporter to another of the Respondent's ships.
3. Sometime in the year 2000, a new Captain was appointed to the Clwyd Supporter, Mr Smith, and the Employment Tribunal found that the atmosphere on board changed. Previously, it had been congenial, but the atmosphere now became such that in September 2001 the Claimant applied for a transfer and the Employment Tribunal were satisfied that he had told Captain Smith about his unhappiness as to the atmosphere on board. The Claimant accepted that at no time did he write to say why he was seeking a transfer. At one point in time the Respondent was minded to dispute that he had sought a transfer, but the reason probably was that the Respondent had hired a company known as EIL Personnel to deal with personnel issues on its behalf and issues as to transfer were generally, at least in the first instance, dealt with by EIL. We actually have in our papers a letter from SEA Personnel dated 14 September to Mr Struth, confirming they had received his request for a transfer. They informed him that although there were no immediate opportunities "we will keep your request on file and shall inform you when a vacancy becomes available." We have also seen the transfer list and there is no doubt that as from the 12 September 2001 Mr Struth of the Clwyd was shown as wanting a transfer.
4. Sometime again, in September 2001, there was the possibility of the Claimant moving as a motorman to a vacancy on the Highland Sprite. The move seemed to have been arranged directly by the Second Engineer. The Respondent did not wish to have unrest on that vessel in case there should be a perception that the Second Engineer was able to arrange transfers at will. Therefore, the transfer did not go through. The Employment Tribunal did not criticise the Respondent for failing to transfer the Claimant on that occasion. Nonetheless, the fact remained that he was not offered either a temporary or a permanent transfer at any time.
5. On 11 December 2001 the Claimant was signed off work with psoriasis. He was originally signed off for four weeks but his time off work was further extended by his doctor until March 2002. The Claimant's doctor told him that he considered the psoriasis was caused by stress at work, caused by the unhappy atmosphere on the ship. There was, however, no medical evidence before the Employment Tribunal, or, indeed, before the Respondent, to confirm this.
6. The Employment Tribunal were satisfied that Mr Struth raised issues as to his unhappiness with the manager of the West Coast operations some time in December. He also mentioned them to the Senior Personnel Office with SEA, Shona Taylor, and also to Mr Ross, Superintendent. He was certificated or signed off fit to return to work on 15 March and the Employment Tribunal were satisfied, that, thereafter. he had again raised with Captain Smith, his dissatisfaction with the atmosphere on board the ship.
7. It would be also important to note, that sometime in the year 2002, a Mr Skouse, his name, we stress, bearing in mind this is a Liverpool case, is spelled with a "k" rather than a "c", joined the Clwyd Supporter from the Highland Sprite. This created a vacancy for a motorman on the Highland Sprite which does not appear to have been filled. No explanation was offered by the Respondent to the Employment Tribunal as to why Mr Struth was not offered this position.
8. The employers, the Respondent, were concerned about the position on board the Clwyd Supporter. A new Mate was appointed, a Mr Roberts, in March 2003 to try and improve the atmosphere, although there was no improvement so far as concerned Mr Struth. Further, the Captain was called to a meeting in Aberdeen at the Respondent's head office, to discuss the problems on the ship, and, again, there does not appear to have been any significant improvement so far as concerned Mr Struth.
9. Mr Watts, the superintendent, who discussed matters with Captain Smith, considered that people might have been taking advantage of what the Employment Tribunal described as Captain Smith's "kind nature". The Employment Tribunal found at paragraph 26 that the Respondent was clearly aware of a problem in the atmosphere of the crew and was not entirely happy with the way the Captain handled matters.
10. There was a grievance procedure which Mr Struth could have used to pursue a grievance, relating to the atmosphere on board, but he chose not to avail himself of the grievance procedure because, as the Employment Tribunal found he believed the Captain would deal with the situation.
11. The Claimant's psoriasis returned in May or June of 2003 and the Employment Tribunal considered that he would have informed the Captain of this.
12. Now, on 20 August, the ship was due to sail. Mr Struth had signed articles as a member of the crew. Contrary to normal practice he did not hand in his discharge book. We do not know why.
13. When the Claimant joined the ship and signed the articles at about 11.30am, the Employment Tribunal appear to have accepted that it was his intention to sail with the ship. As we shall shortly describe, he did no do so and we note that the Employment Tribunal considered it had difficulty in making findings of fact because neither Captain Smith nor Mr Robinson, the Chief Engineer were called to give evidence.
14. The Employment Tribunal were not satisfied as to why they were not called to give evidence, the explanation being that they were actually at sea on duty, but that is neither here nor there. The Employment Tribunal were also concerned that the evidence given by Mr Struth, was, in a number of respects, and, indeed, on his own admission, inaccurate.
15. Mr Struth, having boarded the ship, left it for some reason, again, we know not why, and there was apparently an unresolved dispute, that is, unresolved by the Employment Tribunal, as to why he had left. However, he returned. He worked until approximately five o'clock and was then due to have a break before he commenced duty again at 8 o'clock in the evening. At some point in time during the day, he came across two Able Seamen, who, in the words of the Employment Tribunal, were bickering about who was going to drive. Mr Struth spoke to Mr Robinson, the Chief Engineer, and told him he hoped it would not carry on.
16. The Employment Tribunal then say this at paragraph 31:-

"The Chief Engineer advised him to keep out of it. The Chief Engineer also said something to the applicant that he understood as being that the Captain had it in for him and was out to dismiss him at any opportunity."

17. The Employment Tribunal did not think that the statement was made as alleged by Mr Struth but believed that he could have gained this impression as to the Captain's attitude, from Mr Robinson. Mr Robinson, in a Witness Statement which the Employment Tribunal did consider, said that he had spoken individually with crew members and told them to behave themselves and if there were problems they should be brought to Mr Robinson and they should not become involved in a confrontation with the Captain. Further, in the IT3, the Respondents maintain that Mr Robinson told Mr Struth not to speak disrespectfully to the Captain, as to do so would be unacceptable behaviour and inappropriate action could lead to dismissal.
18. The Employment Tribunal considered that Mr Struth may have formed the impression that the Captain was out to get him from that conversation. We feel bound to say, that, at this point in time, that the Employment Tribunal appear to have held that Mr Struth misconstrued what Mr Robinson said to him and that what Mr Robinson said to him was, in fact, unexceptionable, viewed objectively. We assume that to be the case.
19. However, at 7.45, Mr Struth went to see the Captain. He told the Captain that he had had enough and wanted to leave the vessel. A number of other crewmen tried to persuade Mr Struth to stay but he would not change his mind. The Captain told him if he walked off he would be liable to dismissal from the company and if he stayed he would receive a written warning concerning his actions prior to sailing.
20. He left the vessel at 8.15. He was asked, in cross-examination, what persuaded him to walk off the ship and he referred to the bitterness between the two Able Seamen and that the Chief Engineer told him the Captain was out to get him sacked. He was asked questions by the Chairman and said he did not report the problem with the Able Seamen to anyone but just walked away, he said it was the Chief Engineer's comments which caused him to walk off. He thought the Captain would be watching him for the slightest move. The Tribunal then said this in an important passage and we quote:-

"The Tribunal finds, bearing in mind the terms of the applicant's later letter of resignation, as well as the other evidence, that the applicant left because he could not bear the prospect of another 28 days in an atmosphere of constant bickering and the reaction of the Chief Engineer and the Captain reinforced his belief that the respondent would not take any effective action to deal with this, as they had failed in the past either to improve the atmosphere on board or to remove the applicant from the situation."

21. Attempts were made to persuade Mr Struth to change his mind, but he would not. He sent a letter of resignation and in that letter of resignation, which we have in our bundle, he complained that over the last two years, morale had dropped and life aboard the Clwyd Supporter had become unbearable due to the actions of certain of the officers. He found the constant bickering and disputes on board made him dread joining. He said that he had repeatedly requested a transfer but had been turned down every time although a constant stream of motormen had come and gone and they seemed to have no problems getting transfers to other ships.

"I am aware that positions are very difficult at present but I honestly could not bear the thought of another month on board. As you are aware I was forced to spend several months off work due to severe psoriasis, and recently this has started to return I am positive this is due to stress relating to work. Gulf have been a very good employer despite of what has happened I do not wish to leave the company but I must put my wellbeing first I am sure you understand."

Before leaving this letter, I think we should note two points. Firstly, although Mr Struth says that he had made repeated requests for a transfer, the Employment Tribunal only refers to one and certainly makes no finding that that part of his letter is accurate. Secondly, he refers to the fact that there had been a constant stream of motormen that had come and gone, so there would have been no problem getting transferred to other ships. That again is something factual that the Employment Tribunal did not apparently accept.

22. The Employment Tribunal, having set out the parties' submissions, directed themselves as to the law. No criticism is made as to the manner in which they directed themselves, albeit there is no specific direction in relation to what has become as known as the "last straw" in cases of constructive dismissal. The Employment Tribunal considered a number of respects in which it was alleged that the Respondent could be shown to be in repudiatory breach of contract. Firstly, in relation to the duty to provide a suitable workplace and to look after an employee's health and safety.
23. These matters were investigated by the Employment Tribunal and the Employment Tribunal, firstly, found, that the contractual term requiring the Respondent to take reasonable care for the safety of the Applicant, did not extend to a duty to ensure that the employee was not unhappy at work unless this unhappiness was foreseeably likely to be so severe as to manifest itself in physical or mental illness. The Employment Tribunal at paragraph 56 concluded:-

"that is was not reasonably foreseeable that the applicant would again suffer from psoriasis if the respondent did not sort out the situation on board the Clwyd Supporter or remove the applicant."

24. The Employment Tribunal was satisfied that the Respondent, and its agent in personnel matters, SEA, were aware that Mr Struth had suffered from psoriasis and this could be exacerbated by stress and were aware that he was unhappy on board the Clwyd Supporter and wished to transfer from the vessel because of his unhappiness.
25. However, it had no clear evidence that his previous bout of psoriasis had been caused by work-related stress rather than by other factors, and, in those circumstances, they found that although it was reasonably foreseeable Mr Struth would be unhappy if required to continue working on the Clwyd Supporter, it was not reasonably foreseeable he would suffer physical or mental illness if required to do so.
26. The Employment Tribunal then concluded there was no breach of the implied term that it should take reasonable care for the safety of the Claimant because the Respondent had not put him in a situation which it knew was likely to cause physical or mental harm. The reason being that such harm was not reasonably foreseeable. There was no breach of the implied obligation to provide a working environment for the Applicant which was reasonably suitable for the performance of his contractual duties. The bad atmosphere caused him unhappiness but did not prevent him from performing his contractual duties and he did so over a period of more than two years from the time when he said the bad atmosphere began.
27. The Employment Tribunal then went on to consider the basis upon which, as we have already said, they found that there had been a repudiatory breach such as to entitle Mr Struth to treat his dismissal or his resignation as being tantamount to a constructive dismissal.
28. We set out the Employment Tribunal's conclusions at paragraph 59 to 61 in full:

"59. The tribunal concluded that the respondent was in breach of the implied duty of mutual trust and confidence by its cumulative conduct up to and including the Captain's final conversation with the applicant before he resigned in failing to sort out the bad atmosphere on board the Clywd Supporter or take the, albeit limited, opportunities available to transfer the applicant to another vessel, despite knowing that the situation was causing the applicant distress and that the applicant believed the stress had caused or exacerbated the condition of psoriasis. The respondent knew of the applicant's unhappiness through his conversations with Ms Taylor of SEA, Mr Watts, Mr Ross and the Captain, of his request for a transfer because of this situation and that he had suffered from psoriasis which may be stress related and which the respondent knew he considered to have been due to stress caused by the situation on board. The applicant and his fellow crew are in the unusual working situation where they not only work in a confined space with other crew members but also live alongside them for 28 days at a time. The opportunities available to employees in most working environments of being able to get away from an unpleasant working atmosphere after the working day and reduce the stress caused by that environment by activities and time away from work were simply not available to the applicant and his fellow crew, making it all the more important that the respondent act effectively to resolve any difficulties in the working environment.

60. The tribunal accepts that there were limited opportunities to transfer the applicant, given that the Clywd Supporter employed more motormen than other vessels and that there were few places on other vessels. However, the tribunal does not accept that the respondent had no opportunities for transferring the applicant after his application for a transfer was received in September 2001. There were two opportunities to transfer the applicant to the Highland Sprite. The tribunal accepted the reasons given by the respondent for not transferring the applicant in 2001. However, the respondent appeared to give no consideration in making its decision to the reasons for the applicant wanting to transfer. The respondent's failure to transfer to the Clwyd Supporter was simply unexplained. Apart from permanent vacancies, it appeared that there were some temporary transfers to cover absences. The respondent appeared to have given no consideration to whether the applicant could not have been transferred event for a temporary period. The respondent did not take what, admittedly limited, opportunities there were, when these arose, to transfer the applicant out of a situation in which he was clearly distressed.

61. The tribunal accepted that the respondent took some steps to try to alleviate the situation on board, such as moving Mr Roberts and the conversations Mr Watts had with officers and crew after the health and safety incident. However, the respondent did not take firm management steps, prior to 20 August 2003, which would correct the situation on board. Further changes in the officers and the crew may have been required to address the situation. The respondent simply did not take the situation sufficiently seriously. The respondent appeared to take the view that matters would sort themselves out, as set out in paragraph 16 of Mr Watts' statement: "working on a vessel for 28 days can be stressful. Minor disagreements within the crew can be blown out of all proportion. They usually resolve themselves when the crew go home on leave."

29. The Employment Tribunal then went on to say this at paragraphs 62 and 63:

"62 On 20 August 2003, the applicant expressed concern to the Chief Engineer about the bad atmosphere starting up again and was given the respondent just to stay out of it, not suggesting that any steps would be taken to address this. His route of taking his grievances to the Captain was shut off by the instructions of the Chief Engineer that all complaints should go to him and he was not to go to the Captain. The applicant also understood, perhaps wrongly, that the Captain was out to dismiss him. In these circumstances, the applicant went to the Captain to say he wished to leave. Instead of assuring the applicant that his concerns would be addressed, the Captain, as recorded in the Captain's e-mail, told him that he would be dismissed if he left the ship, or would receive a written warning if he stayed; prejudging the outcome of any disciplinary process. Although the applicant had already expressed a wish to leave before the Captain's words, the Captain's response must have confirmed the applicant in his view that the respondent would not resolve the situation which had been going on for so long and contributed to his resignation.

63. The applicant resigned in response to the respondent's fundamental breach of contract. The last events leading to his resignation took place on 20 August, so no question of affirming the breach by delay arises. The applicant, therefore, was constructively dismissed. The respondent advanced no alternative argument that a constructive dismissal in these circumstances could be a fair dismissal. The tribunal finds that the constructive dismissal was not for a potentially fair reason and was, therefore, unfair."

30. We note in passing, that there does, at least on the surface, appear to be somewhat of an inconsistency between the finding that there had been no breach of the implied terms relating to health and safety, because it was not reasonably foreseeable that Mr Struth would suffer psoriasis or stress or what have you, and the finding in paragraph 59 that there was a breach of the implied duty of mutual trust and confidence. This duty was held to have been broken because the Respondent knew that Mr Struth believed that the stress had caused or exacerbated the condition of his psoriasis and knew that the psoriasis might be stress related.
31. The grounds of Appeal really fall under three particular heads. The first head, is, essentially, and we take them together, that there had been some affirmation of the contract, even assuming there had been breaches, and Mr Truscott, who appeared on behalf of the Respondent, pointed out the absence of regular complaints or requests for transfers from the time when the problem first manifested itself, until 20 August. At one time he argued rather faintly, that even if there had been what would amount to a repudiatory breach and even if there had been what might be described as a "last straw", by the time the "last straw" came to be considered, there had already been a sufficient affirmation of the contract of employment by Mr Struth that the "last straw", so as to speak, could not operate to justify his resignation as being a constructive dismissal. That is not a submission, and we say this with all deference to Mr Truscott, that was put by him, although persuasively, with any great enthusiasm, and it really seems to us that he has two major points to make.
32. Firstly the Employment Tribunal was wrong in finding that the Respondent's conduct amounted to a repudiatory breach; if he were correct so far as that was concerned, the Respondent must win the Appeal because it could not be suggested that the events of 20 August themselves amounted to repudiatory breach. If he were wrong and those matters were capable of amounting to a repudiatory breach, Mr Truscott submitted that the Employment Tribunal was wrong to find that the events of 20 August 2003 were themselves capable of amounting to what we have described as the "last straw".
33. In relation to the first point, the Employment Tribunal, in Mr Truscott's submission, had cranked up the duty of trust and confidence too far, and had effectively found that the Respondent employer was bound, not only to tackle the unhappy situation on board the Clwyd Supporter, but to tackle it effectively. On the issue as to whether there has been a breach of the implied duty, as it seems to us, this is always fact sensitive and the Employment Tribunal having directed itself as to the law correctly, made a number of findings, and, unless those findings can be shown to have been unjustified, or unless they can be shown to have been perverse, we cannot interfere with the decision of the Employment Tribunal.
34. The Employment Tribunal in paragraph 61, as we have already mentioned, concluded that although the Respondent was aware of the unhappy and unsatisfactory position on board the Clwyd Supporter, a state of affairs that the Respondent itself recognised, required to be addressed, it did not take firm management steps which would correct the situation. Thus, they did not change the officers and crew, other than I think bringing in Mr Roberts, and the Employment Tribunal did not consider that the Respondent had taken the situation sufficiently seriously, appearing to take the view that matters would sort themselves out. Further, there had been an opportunity to transfer out Mr Struth to the Highland Sprite and no explanation was given as to why this had not taken place.
35. The Employment Tribunal was also correct in our opinion, to point out, that it is one thing to have unhappiness in an ordinary workplace, but another to have the same degree of unhappiness in a ship. After all, for 28 days at a time, the crew are all thrown permanently into one another's company. As the Employment Tribunal put it at paragraph 59:-

"The applicant and his fellow crew are in the unusual working situation where they not only work in a confined space with other crew members but also live alongside them for 28 days at a time. The opportunities available to employees in most working environments of being able to get away from unpleasant working atmosphere after the working day and reduce the stress caused by that environment by activities and time away from work were simply not available to the applicant and his fellow crew, making it all the more important that the respondent act effectively to resolve any difficulties in the working environment."

36. We have already said that this particular issue is fact-sensitive. We would not necessarily ourselves have agreed with the conclusion of the Employment Tribunal, but Mr Truscott needs do more than persuade us of that. He needs to persuade us, either that the Employment Tribunal had misdirected itself according to the law, or, alternatively, that its decision could not be justified on the evidence, or was plainly wrong in the sense of being perverse. He cannot, in our opinion, satisfy us in any of those matters, so that ground of appeal must fail. Before we leave this ground of appeal, we obviously have in mind the well-known authorities in relation to constructive dismissal and repudiatory breach of contract by an employer. Our attention was drawn during the course of submissions, in particular, for example, to Lewis v Motorworld Garages [1985] IRLR 465 and in particular to the well-known judgment of Lord Justice Glidewell, and, we refer in particular to paragraph 36. Our attention was also drawn to the recent exposition in the case of London Borough of Waltham Forest v Omilaju. It is convenient perhaps to refer to the judgment of Lord Justice Dyson before we turn to Mr Truscott's second point:

14. 14.                 "The following basic propositions of law can be derived from the authorities:

1. The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761.

2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1998] AC 20, 34H-35D (Lord Nicholls) and 45C-46E (Lord Steyn). I shall refer to this as "the implied term of trust and confidence".

3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666, 672A. The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship (emphasis added).

4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must "impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer" (emphasis added).

5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para [480] in Harvey on Industrial Relations and Employment Law:

"[480] Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the 'last straw' which causes the employee to terminate a deteriorating relationship."

15. 15.                 The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v Motorworld Garages Ltd [1986] ICR 157. Neill LJ said (p 167C) that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Glidewell LJ said at p 169F:

"(3) 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, though 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 (Peterborough) Ltd. [1981] ICR 666.) This is the "last straw" situation."

16. 16.                 Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim "de minimis non curat lex") is of general application.

17. 17.                 It is the alleged failure by the ET in the present case to apply the judgment of Glidewell LJ which led the EAT to allow the appeal. It is submitted by Mr Weiniger on behalf of the Council that although, as Glidewell LJ makes clear, the final straw does not need to be a breach of contract, it must at least be conduct which is "blameworthy or unreasonable". Anything less than a breach of contract or conduct which is blameworthy or unreasonable is not capable of being a final straw in the sense discussed by Glidewell LJ.

18. 18.                 On behalf of Mr Omilaju, Mr Edward submits that (i) the final straw does not need to be a breach of contract (see Lewis), (ii) blameworthy or unreasonable conduct in a final straw case must by definition be, or at least contribute to, a breach of the implied term of trust and confidence, but (iii) since the breach of this implied term is, by definition, also a breach of contract, it cannot be a requirement that a final straw should amount to blameworthy or unreasonable conduct, since Lewis says that it does not need to be a breach of contract.

19. 19.                 The question specifically raised by this appeal is: what is the necessary quality of a final straw if it is to be successfully relied on by the employee as a repudiation of the contract? When Glidewell LJ said that it need not itself be a breach of contract, he must have had in mind, amongst others, the kind of case mentioned in Woods at p 671F-G where Browne-Wilkinson J referred to the employer who, stopping short of a breach of contract, "squeezes out" an employee by making the employee's life so uncomfortable that he resigns. A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase "an act in a series" in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.

20. 20.                 I see no need to characterise the final straw as "unreasonable" or "blameworthy" conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.

21. 21.                 If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.

22. 22.                 Moreover, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee's trust and confidence has been undermined is objective (see the fourth proposition in para 14 above).

37. Mr Truscott's submission in relation to this point, is that the Employment Tribunal, in fact found, that the reason Mr Struth left the vessel, was not because of anything done or said by the Captain but because he misunderstood what Mr Robinson, the Chief Engineer, had said to him. We have already expressed our opinion, as we have already made clear that when we explained we approached this case on the basis that Mr Struth's interpretation of what Mr Robinson said, was unreasonable viewed objectively, and that Mr Robinson had said nothing untoward. However, we have also pointed out that the Employment Tribunal did not accept that that was the reason why Mr Struth chose to leave the Clwyd Supporter.
38. The Employment Tribunal found that he left because he could not bear the prospect of another 28 days in the atmosphere of constant bickering, and, the reaction of the Chief Engineer and the Captain, reinforced his belief that the Respondent would not take any action to deal with this, as they had failed in the past to improve the atmosphere on board or to remove the Claimant from the situation.
39. The Employment Tribunal were also satisfied that when he went to see the Captain and said he wished to leave, the Captain did not assure him his concerns would be addressed but told him he would be dismissed if he left the ship, or receive a written warning if he stayed, prejudging the outcome of any disciplinary process.
40. The Employment Tribunal, as we have already made clear, considered, that, although Mr Struth had already expressed a wish to leave before the Captain's words, his response must have confirmed him in his view that Respondent would not resolve the situation which had been going on for so long and contributed to his resignation.
41. It is quite clear, therefore, that there were a number of operative reasons, all significant, as to why Mr Struth chose to leave the ship, and, thus, treat himself, in the event, as constructively dismissed. One of them was undoubtedly his misunderstanding of what Mr Robinson had said to him, but, in addition, Mr Robinson's unwillingness to express any view as to how he would propose to change the atmosphere on the ship, and, more important, the Captain's attitude were, in our opinion, capable of amounting to the kind of conduct that could, in the context of this case, amount to, what has been described as the "last straw". The Captain's attitude that Mr Struth would be disciplined, whatever the position, was clearly wrong and unreasonable, in any event. The Captain, the Employment Tribunal found, told Mr Struth, in terms, that he would be disciplined even if he stayed on the ship and this would clearly be in breach of or in disregard of any proper disciplinary process.
42. Again, it is not sufficient for Mr Truscott to persuade us that we, if we had been sitting in the Employment Tribunal, might have taken a different view of matters from the Employment Tribunal. As Mr Thacker pointed out, that is not the correct test. We must be satisfied that provided there was no material to justify the Employment Tribunal in the conclusion to which it came, or, that its decision was in effect perverse. There clearly was material that entitled the Employment Tribunal to conclude, as it did, and we are unable to characterise the decision of the Employment Tribunal as perverse despite the very helpful and succinct submissions made by Mr Truscott, and, even though we are at pains to repeat, we ourselves might not have come to the same conclusion as the Employment Tribunal. The issues as to fact were those for the Employment Tribunal and we are not satisfied that their decision is such that it can be overturned.