United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms Catherine Callaghan (of Counsel) Instructed by: Messrs Lewis Silkin Solicitors 5 Chancery Lane Cliffords Inn LONDON EC4A 1BL
For the Respondent	Mr Ian Truscott Q.C. (of Counsel) Instructed by: Messrs Shepherd & Wedderburn Solicitors Saltire Court 20 Castle Terrace EDINBURGH EH1 2ET


 


SUMMARY

The claimant, a university lecturer, claimed that he had been unfairly constructively dismissed. The tribunal held that the university had acted reasonably throughout the period of his employment, that they had not breached his contract in any respect and that he had not, in any event, resigned due to what he perceived to be their breach of contract. The EAT dismissed an appeal based on grounds that they had misapplied and misunderstood the test for constructive dismissal, that they ought to have applied the principle in Peyman v Lanjani [1985] C.L. 457, that their decision was perverse and that they had failed to take account of relevant evidence. Observations made to the effect that Peyman did not apply in the employment law field.
 


THE HONOURABLE LADY SMITH

Preliminaries

1. This case concerns a claim for unfair constructive dismissal by the appellant. His claim was presented to an Employment Tribunal sitting at Edinburgh, Chairman Mr M Sischy. The judgment was registered on 19 January 2005. He represented himself before the tribunal but was represented before us by Ms Callaghan, of counsel. The respondents were represented before the tribunal and before us by Mr Truscott QC. We will refer to parties as claimant and respondents.

Introduction

2. The claimant was employed by the respondents as a lecturer in their department of social anthropology from 1 February 1999 until 31 August 2002, the latter date being the expiry of the notice that was given by him in a letter of resignation dated 29 May 2001. He claimed that he had been constructively unfairly dismissed.

The Facts

3. The following summary of what appeared to be the essential features of the case is drawn from the tribunal's findings in fact.
4. There were problems between the claimant and one of his colleagues, Tristan Platt, from the outset; the two men regularly clashed and the claimant made complaints about Platt's conduct. There was also much friction between the claimant and other colleagues. The claimant made it clear both in writing and verbally that he had many criticisms to make of the way in which the department was run and of the quality of certain of his colleagues, including one professor in particular.
5. The claimant was appointed Chair of the department, a post normally held for three years, but resigned from that post after only six months, indicating that he had felt unsupported by the head of the school. He applied for promotion to a readership in November 1999 but was unsuccessful.
6. On 11 March 2000, the claimant stated in an acrimonious e mail to Professor John Skorupsi, the head of school, that he had taken the advice of an Edinburgh solicitor specialising in employment law and that if he did not get a satisfactory result from a complaint that he was making about Mr Platt, he would

"have little alternative but to explore constructive dismissal."

7. He applied for promotion to senior lecturer in 2001, attaching to his application detailed criticisms of the department and of certain of his colleagues by way of explaining why he had published less than he would have liked; he had had to spend so much time trying to do something about, as he saw it, the lack of professionalism and integrity in the department. He was unsuccessful in his application for promotion. Platt was, however, successful in his application at that time, something which the claimant clearly thought was outrageous given his view of the man's standards of behaviour and conduct. The claimant lodged an appeal against his failure to secure promotion.
8. There was a dispute between the claimant and Mr Platt about the use of a laptop computer in January 2001. The dispute came to the notice of Professor Skorupsi who replied to a letter of complaint from the claimant in terms which included the following:

"Dear Declan

I didn't respond to your earlier e mail about Tristan because, having heard all sides of the case, I concluded that in this latest disagreement you were the person at fault. To have taken the matter further would have meant reprimanding you, not Tristan. But equally, to have taken the matter further would have given it an importance which among sensible people it should never have had."

9. On 5 February 2001, the claimant threatened to "go outside the University to seek redress if internal procedures continue to fail". In July 2001, the claimant met with a person from the respondents' press office, Claire Grainger, and warned that, if he didn't get what he wanted out of his promotion appeal and his complaints that there was bullying and corruption in the department, he intended to expose what he referred to as widespread corruption in the university as a whole to as wide an audience as possible and warned that somebody would end up taking legal action against the university. The respondents' Professor Vincent learned of what he had said to Claire Grainger and at a meeting on 2 August 2001, accused him of trying to blackmail the university. The claimant claimed to have been stunned and astonished by that suggestion and indicated that all he was suggesting was that people in positions of responsibility in the university assumed their responsibility.
10. At about the same time, the principal of the university asked the secretary and registrar (Mr Corner) and provost (Mr Essler) to carry out a review of the department in the light of the allegations about it that were contained in the claimant's promotion application and his appeal.
11. In a letter the claimant wrote on 10 December 2001 to the respondents' Director of Personnel concerning his appeal, he referred to the taking of legal action and he gave the Chairman of the Appeal Committee the impression that he was heading for a tribunal.
12. The outcome of the Corner/Essler review was that whilst the claimant had presented what they refer to as "an appropriate appeal", he had not demonstrated (as had been alleged by him) that the respondents' promotion procedures were inherently contrary to their Equal Opportunities Policy or were improperly or unfairly executed. In respect that they had been asked to consider whether there were any grounds for disciplining members of staff in the department, they detailed eight respects in which unprofessional and unpleasant behaviour had been taking place but did not, "name names" or recommend that disciplinary action be taken against anyone. Rather, they recommended certain changes including the replacement of the Chair of the department with someone from outside the school – an "experienced and fair minded academic" - to enable a fresh start to be made. Although many of their findings were serious enough to have merited disciplinary action, the view was, it seems, taken that it was better to seek to move forward. The respondents adopted that approach. The claimant was not happy with that outcome. He had, it seems, hoped for specific disciplinary action to be taken.
13. After the issuing of the Corner/Essler report, the claimant sent an e mail which made very unfavourable comments about one professor when a committee was being formed to search for a new professor of social anthropology. That professor discovered what had been said about him and complained to the principal who asked the claimant to retract the remarks and apologise. The claimant refused to do so. The principal subsequently called a staff meeting on 2 November 2001, which included the claimant at which he warned that the behaviour of individuals in the department required to improve or disciplinary action would be taken. The claimant tried to open up the discussion to refer to matters which had been the subject of his prior complaints but was stopped from doing so. In respect of that meeting, the tribunal found, at paragraph 147:

"The sixth breach relates to the Principal's alleged 'failure' to permit the claimant to express an opinion at the meeting on 2 November 2001. It is perhaps unfortunate that a decision was made for the Principal and the new Departmental Chairman Dr Peter Clark to meet with the departmental staff in the absence of the professorial staff. The Tribunal can understand why the claimant may well have felt (together with his two colleagues who were present in the absence of Tristan Platt) that it was they who were being singled out for criticism. However, it appears that the claimant attempted to use the meeting as a platform to focus on his litany of complaints rather than embrace the spirit of the report which was to draw a veil and move forward. In this instance he attempted to focus on what he called 'Genuine instances of defamation…which relates to the three members of the Department present'. However, by the claimant's own admission both Dr Riches and Dr Dilley appeared to remain silent leaving the claimant alone placing his head above the parapet. The Tribunal also do not accept that the claimant was muzzled simpliciter. Had Dr Lang and Dr Clark simply given the claimant a blank cheque to rehearse his already many times aired grievances that in the opinion of the Tribunal would have simply opened the wounds and poured salt on them which would have further exacerbated the Departmental war of attrition and blame – the very thing that the Principal was attempting to draw a line under when accepting that no action would be taken in respect of any members of the Department for any past misdemeanour, but that such behaviour would not be tolerated in the future."

14. At that time, the claimant indicated an intention of resigning. He had sent an e mail on 1 November 2001 in which he had referred to intending to do so and that "for practical reasons" he would not expect to be able to leave the university before the end of August 2002. Immediately after the meeting of 2 November, Dr Clark sought to persuade him not to resign. He decided not to do so.
15. The claimant wrote to the Principal on 17 December 2001 objecting to the Corner/Essler report and, in particular, to the fact that no individual had been held responsible. He was concerned that, otherwise, the impression would be that everyone was equally at fault. The claimant's appeal was subsequently heard by an appeal panel and was dismissed. They did not allow the matters that had been investigated by Corner and Essler to be re-opened by the claimant and did not understand the procedural point that he sought to argue. They commented that they got the impression regarding the Corner/Essler report that the claimant did not accept it as there were two professors in particular who he had wanted it to "roast on a spit". The outcome of his appeal was intimated to him on 28 March 2002.
16. The claimant resigned by letter dated 29 May 2002.
17. When asked at the tribunal hearing to summarise "in a nutshell" the main issues which he claimed had made him resign, as is noted at paragraph 108 of the judgment:

"He replied that a number of people in the driving seat treat people with a lack of respect; this lack of respect stemmed from putting research over teaching. When asked how this impacted on the claimant, Mr Truscott had noted him as replying that the high flying research types were sacrificing their teaching and administration and being rewarded by the University Executive; that he had a good research record and was at the cutting edge of Social Anthropology, but he did not want to sacrifice his teaching as that was important to him and he believed that anthropology was a wonderful subject."

18. At paragraph 132 to which we refer more fully later in this judgment, the tribunal found that the operative cause of the claimant leaving was:

"..not any breach by the employer as he now sought to establish by ex post facto reasoning – that is from effect to cause – but because he had determined to leave anyway…".

Employment Tribunal's Decision

19. The tribunal record that the claimant's case relied on in excess of ten examples of alleged breaches of the implied term of "mutual trust and confidence" which were described as individually both material and cumulative, in the "last straw" context. At paragraph 105, they record his claim being stated in the following terms:

"I was employed as a Lecturer in the Department of Social Anthropology, University of St Andrews from January 1999 until 31 August 2002. Following my perceived failure of an internal disciplinary investigation which became known as the Corner/Essler review, and a failure of procedures in relation to a promotion application and appeal….I came to the conclusion that having exhausted all internal mechanisms of redress, I was left with no option to tender my resignation. I resigned by letter dated 29 May 2002 to Ms Mairi Stewart, Acting Director of Human Resources (formerly Personnel Services). My contract terminated on 31 August 2002 since I was requested to give three months notice.

…[1] set out a number of breaches of trust and confidence and my attempts to address these internally over quite a long period before finally giving up and resigning. Some of these breaches are more serious than others but there was a cumulative pattern and, in the end, something had to give and something did give in the form of what came to be called the Corner/Essler review and its consequence.

I intend to show that a number of serious breaches of contract relating to the implied term of trust and confidence were made by the most senior members of the University of St Andrews, including the Principal, the Deputy Principal, the Secretary, the Provost, the Director of Personnel Services, and the Chairman of the Promotion Appeals Panel. Further breaches of trust were made by the Dean of the Faculty of Arts, two Heads of the School of Philosophical and Anthropological Studies, and the Chairman of the Department of Social Anthropology.

I submit that, cumulatively these constituted a 'fundamental' or 'repudiatory' breach of contract, with the 'last straw' being a promotion appeal hearing where it appeared to me that I had run out of options for seeking to establish any trust and confidence with the senior Management of the University, and was left with no option but to submit a claim to the Employment Tribunal for constructive unfair dismissal.

I would like to make it unambiguously clear that my claim for constructive dismissal is not because of antagonistic relationships among my colleagues in the Department of Social Anthropology at St Andrews. My contract was not with them. My resignation stemmed from the failure of the University Management to manage the department in any reasonably effective way, thus putting serious stress on certain individuals and being, I submit, in breach of contract."

20. The tribunal also took account of the claimant having made it clear in his evidence that he wished to make it "unambiguously clear" that his claim was not because of antagonistic relationships (paragraph 125). In short, they were not dealing with a claim that the claimant had resigned due to bullying or harassment. They were dealing with a claim in which the claimant alleged that the respondents had committed breaches of the implied duty of trust and confidence in various separate respects and that, taken together, they amounted to a repudiatory breach of contract by the respondents. The "final straw" was said to be the receipt of the report of the Promotion Appeals Panel of 20 March 2002.
21. Further, as we have noted, the tribunal took account of the claimant's response as to what it was "in a nutshell" that had caused him to resign, as recorded at their paragraph 108.
22. The tribunal noted that the claimant summarised what he seems to have referred to as "the alleged material breaches of the implied term" at paragraph 122. That summary was that they were:

"(a) the destruction of all the evidence relating to the Corner/Essler investigation; (b) the attempts by the Principal of the University to require the claimant to withdraw his professional academic opinion in relation to Professor Rapport (c) the alleged behaviour of the Principal of the University at the meeting on 2 November 2001, and, the general actings of University officials in relation to the claimant's promotion appeal."

23. At paragraph 123, they state:

"The Tribunal, however, were of the unanimous opinion that the claimant did not prove, on the balance of probabilities, that there was any conduct on the part of the University and its officials in relation to all of the four matters that he cites in support that can be construed as a material breach (singularly or collectively) of the implied term. The Tribunal were happy that those in authority properly wished to draw a veil after the Corner/Esler investigation and to look forward rather than back. The claimant wished guilty parties identified and punished. This was not the purpose of the University who were anxious to foster in the future a more collegiate and mutually co-operate ethos. It would have been difficult to find any individual more guilty than any of the others and short of disciplining the whole Department – including the claimant – it is impossible to determine what the University could otherwise have done on an equitable basis and still maintained the Department. The Tribunal do not agree with the claimant in his assertion that attempts by the Principal to require him to withdraw his professional academic opinion about his colleague Professor Rapport amounted to a curtailment of academic freedom. The Tribunal were unanimous in the view that the claimant's public statement regarding Professor Rapport were gratuitous, insulting, and destructive. It is a distortion to suggest that this was an attempt to curtail his right to an opinion. What it was was an attempt to get him to apologise for unnecessary inflammatory and insulting remarks. The Tribunal were also unable to sustain the contention of the claimant that the Principal of the University acted in any way unreasonably at the meeting on 2 November 2001 given the purpose of the meeting. Finally, in relation to the claimant's contentions, the Tribunal found no evidence in relation to the conduct of the claimant's promotion appeal that would satisfy the test in the Western Excavating v Sharp case. While the claimant maintained that he had satisfied all four prongs of the test the Tribunal are of the opinion that such deficiencies as there might have been in relation to the University officials acting in general and in relation to the claimant's promotion appeal in particular come nowhere near satisfying the first three tests so eloquently enunciated by Lord Denning (apart from consideration of affirmation of the contract of employment which is dealt with below)."

24. It is quite plain from the tribunal's judgment that they formed a extremely negative view of the claimant's case. Significantly and importantly as regards the arguments raised on appeal, they found the respondents' conduct to have been "reasonable throughout" the period of the claimant's employment. They also found that "standing back and viewing events objectively", it could not be said that the respondents had repudiated their contract with the claimant but that, further, the respondents seemed to have been doing all that they could to try to ensure that he stayed (paragraph 124).
25. The tribunal summarise their findings on the evidence at paragraph 125 which includes:

"Notwithstanding that there is not, in the Tribunal's opinion an implied duty or obligation of reasonableness placed upon the employer, the Tribunal are of the view in the present case the respondents, far from acting unreasonably, acted reasonably throughout. The claimant achieved what he had sought i.e. a departmental investigation in the form of the Corner/Essler Report. What he failed to achieve was the outcome he wished i.e. (a) the naming and blaming and eventual punishment of those colleagues in the "opposing camp"; (b) the institutional exposure of a colleague with whom he fundamentally disagreed in respect of what he saw as a tenable theoretical orientation within the Department (Professor Rapport); (c) the punishment of colleagues whom he saw as neglecting (or not taking their fair share of) teaching and administrative duties (Professors Rapport and Overing and Mr Platt) and (d) the public recognition that said failings were permitted by the Head of School (Professor Skorupski) who likewise allegedly failed to support him when he was Departmental Chairman and who allegedly (incorrectly as it transpired) was biased against him in the 2001 promotion round."

and at paragraph 142, they record their agreement with a proposition put on behalf of the respondents that a common thread ran through all the claimant's allegations which was:

"When the claimant held a view or had a perception of what happened, or had expressed what he thought was the appropriate outcome or action which should be taken, when others disagreed with his perception, or failed to follow through the course of action he thought appropriate, then he would conclude it was them who were wrong and it would be their actions or inactivity which would be misconceived. He never considered that he himself might be wrong or that there might be other ways to deal with the problems spawned by differences of opinion, professional orientation and office politics. It appears that the claimant seemed incapable of compromise and never lost an opportunity to make sure that all who did not share his opinions or perception of the way to deal with matters, were shown the error of their ways, the 'correct' interpretation and way forward, in minute detail in lengthy and frequently hectoring e mails."

26. In respect that the claimant advanced a case that he had resigned as a "last straw" after he had learned, on or about 20 March 2002, that he had been unsuccessful in his promotion appeal, the tribunal considered what would be required for such a case to succeed. It reminded itself that there was no requirement that a "last straw" amount to a breach of contract by the employer. Accordingly, they evidently bore in mind that it would be open to them to regard the claimant's resignation as having been on account of a "last straw" matter even if that matter was not itself a breach by the respondents. They were not, however, satisfied that the claimant did resign because of the outcome of the promotion appeal or, indeed, because of any of the alleged breaches of contract. They accepted the respondents' submission that the evidence was insufficient for them to be able to draw that inference. In doing so, they also took account of the delay between the failure of his promotion appeal being intimated to him and the date of his resignation letter, which was 29 May 2002.
27. Further, the letter did not intimate immediate resignation but resignation taking effect from 31 August 2002.
28. The claimant sought to explain the delay between 20 March and 29 May under reference to his having gone to his union within days of the former and it having taken some time for them to arrange a meeting with their Edinburgh solicitor; he sent the resignation letter within days after that meeting. However, the claimant's evidence had been to the effect that even if the solicitors had told him that his case was without merit, he would have still have left. Taking account of that and of the fact that the claimant had given earlier indications of his intention of departing, the tribunal reached the view that his ultimate resignation was not because of any "last straw" incident but because he had determined to leave anyway. The tribunal refer, in support of that conclusion to the various indications he had previously given that he was going to resign. In paragraph 132, they begin by referring to certain of the respondents' submissions, which they had indicated that they were accepting:

"132. The operative cause of his going was not any breach by the employer as he now sought to establish by ex post facto reasoning – that is from effect to cause – but because he had determined to leave anyway, largely because – in Mr Truscott's submission – he was not getting his own way and was becoming increasingly frustrated by that. That in Mr Truscott's submission was the operative cause of the claimant's resignation. The claimant responded by submitting that he had only announced once – on 1 November 2001 that he intended to resign before he did actually resign. However, that in the opinion of the Tribunal, flies in the face of the evidence. The Tribunal noted that on 11 March 2000 he threatened constructive dismissal, on 5 February 2001 he threatened to "go outside the University to seek redress if internal procedures continue to fail; according to Clair Grainger he threatened to go to the press when they met for coffee on 17 July 2001 and he said that somebody would end up taking legal action against the University; in his letter to Donald Beaton on 10 December 2001, concerning his appeal he refers to legal action and, he gave Mr McIntyre the impression he was heading for the Tribunal."

29. Separately, the tribunal concluded that even if the rejection of the claimant's promotion appeal constituted a breach by the respondents, the claimant had waived it. He had allowed too much time to pass.
30. The tribunal accordingly dismissed the appeal on the grounds that the claimant had not proved that the respondents had breached the implied term of trust and confidence and that he had not, in any event, proved that he had resigned due to the alleged "last straw" matter of receiving the report of his promotion appeal, or indeed because of any breach of contract by the respondents.

Relevant Law

31. A summary of the current law on what is, by way of shorthand, referred to as "the implied duty of trust and confidence" can conveniently be found in the case of Morrow v Safeway Stores plc [2002] IRLR 9. The case was not referred to by the tribunal but it is evident that they had the correct test in mind and it was not suggested that they didn't. In Morrow, at paragraph 23, the Employment Appeal Tribunal stated:

" …the authorities show that, while there have been slight variations in the formula used to describe the implied term over the years, not only has its existence never been in doubt but its scope has never altered. We agree with the very recent observation of this Appeal Tribunal in BG plc v Mr P O'Brien [2001] IRLR 496 …. That, in every case:

'The question is whether, objectively speaking, the employer has conducted itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee.'

If the employer is found to have been guilty of such conduct, that is something which goes to the root of the contract and amounts to a repudiatory breach, entitling the employee to resign and claim constructive dismissal. Whether there is such conduct in any case will always be a matter for the employment tribunal to determine, having heard the evidence and considered all the circumstances."

32. We have no difficulty in agreeing with that summary. The implied obligation flows from the principle that an employee is entitled to be able to trust and have confidence in his employer. Accordingly, whilst the fact that an employer behaves in a manner that may be seen as in some way as involving breach of trust or as affecting the employee's confidence in him will not necessarily amount to repudiatory conduct, if it is properly characterised as conduct likely to destroy or seriously damage the trust and confidence that that employee is entitled have in him, it will do so. The test of whether or not the employee's trust and confidence has been undermined in that manner is an objective one; it is not a question of asking what was the employee's own perception.
33. Regarding the concept of constructive dismissal, we would refer to the well known summary set out by Glidewell LJ in the case of Lewis v Motorworld Garages Ltd [1986] ICR 157:

"(1) In order to prove that he has suffered constructive dismissal, an employee who leaves his employment must prove that he did so as the result of a breach of contract by his employer, which shows that the employer no longer intends to be bound by an essential term of the contract: see Western Excavating (E.C.C.) Ltd v Sharp [1978] ICR 221.

(2) However, there are normally implied in a contract of employment mutual rights and obligations of trust and confidence. A breach of this implied term may justify the employee in leaving and claiming he has been constructively dismissed: see Post Office v Roberts [1980] I.R.L.R. 347 and Woods v W. M. Car Services (Peterborough) [1981] I.C.R. 666, 670, per Browne-Wilkinson J.

(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] I.C.R. 666.) This is the 'last straw' situation.

(4) The decision whether there has been a breach of contract by the employer so as to constitute constructive dismissal of employee is one of mixed law and fact for the industrial tribunal. An appellate court, whether the Employment Appeal Tribunal or the Court of Appeal, may only overrule that decision if the industrial tribunal have misdirected themselves as to the relevant law or have made a finding of fact for which there is no supporting evidence or which no reasonable tribunal could make: see Pedersen v Camden London Borough Council (Note) [1981] I.C.R. 674 and Woods v W. M. Car Services (Peterborough) Ltd [1982] I.C.R. 693 both in the Court of Appeal, applying the test laid down in Edwards v Bairstow [1956] AC 14."

34. We should also refer to the short passage from Woods v WM Car Services (Peterborough) Ltd [1982] ICR that was quoted by the tribunal:

"To constitute a breach of this implied term it is not necessary to show that the employer intended a repudiation of the contract: the Tribunal's function is to look at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly is that the employee cannot be expected to put up with it."

35. Further, we should note, as did the tribunal in this case, that the final episode in a "last straw" case does not in itself need to be a repudiatory breach of contract although it must itself contribute to whatever previous breaches by the employer are relied on (Waltham Forest London Borough Council v Omilaju [2005] ICR 481).
36. Regarding the question of whether or not, after a repudiatory breach of contract by an employer, an employee is to be held as having affirmed the contract, guidance can be obtained from the case of W E Cox Toner ( International) Ltd v Crook [1981] ICR 823 where Mr Justice Browne Wilkinson, as he then was, said at p. 828-9:

"It is accepted by both sides, and we think rightly, that the general principles of the law of contract apply to this case, subject to such modifications as are appropriate to take account of the factors which distinguished contracts of employment from other contracts. Although we were not referred to cases outside the field of employment law, our own researches have led us to the view that the general principles applicable to a repudiation of contract are as follows. If one party ('the guilty party') commits a repudiatory breach of the contract, the other party ('the innocent party') can choose one of two courses: he can affirm the contract and insist on its further performance or he can accept the repudiation, in which case the contract is at an end. The innocent party must at some stage elect between these two possible courses: if he once affirms the contract, his right to accept the repudiation is at an end. But he is not bound to elect within a reasonable or any other time. Mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation: Allen v Robles [1969] 1 W.L.R. 1193. Affirmation of the contract can be implied. Thus, if the innocent party calls on the guilty party for further performance of the contract, he will normally be taken to have affirmed the contract since his conduct is only consistent with the continued existence of the contractual obligation. Moreover, if the innocent party himself does acts which are only consistent with the continued existence of the contract, such acts will normally show affirmation of the contract.

However, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation: Farmworth Finance Facilities Ltd v Attryde [1970] 1 W.L.R. 1053."

37. What that analysis highlights which is not explained in the well known short statement by Lord Denning MR, in the case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 that an employee:

"must make up his mind soon after the conduct of which he complains: for if he continues for any length of time without leaving , he will lose his right to treat himself as discharged." (p. 226)

is that in the case of an employment contract, every day that passes after the repudiatory conduct will involve, if the employee does not resign, him acting in a way that looks very much like him accepting that the contract is and is to be an ongoing one: if he carries on working and accepts his salary and any other benefits, it will get harder and harder for him to say, convincingly, that he actually regarded the employer as having repudiated and accepted the repudiation. The risk of his conduct being, as a matter of evidence, interpreted as affirmatory will get greater and greater. Thus, if he does stay on for a period after what he regards as repudiation has occurred he would be well advised to make it quite clear that that is how he regards the conduct and that he is staying on only under protest for some defined purpose such as to allow the employer a chance to put things right. It needs also, however, to be recognised that even that might not work if it goes on too long; it is all a matter of assessing the evidence. It is, though, plainly not simply a question of asking whether the employee resigned within a reasonable time. That is but one factor which may or may not, depending on the whole circumstances, affect the view that the tribunal take of the proper question of whether, on the evidence, the resignation was in response to the repudiatory breach in circumstances where the employee had not affirmed the contract.

38. Regarding the obligation of an Employment Tribunal to resolve conflicts in the evidence, we would refer to the case of Anya v University of Oxford [2001] IRLR 377 at paragraphs 23 and 24 where, under reference to the particular facts of that case, Sedley LJ said:

"To the extent that Dr Roberts' own evidence was crucial, they will have needed to test the good impression he made against any contra- indications in the evidence. No appellate court can now do this job in place of the tribunal of fact; and no tribunal of fact could properly come to a conclusion without dealing with these issues."

and for general guidance, he referred to the case of Tchoula v Netto Foodstores Ltd (Employment Appeal Tribunal , 6 March 1998) where Morison J said:

"A bald statement saying that X's evidence was preferred to Y's is, we think, both implausible and unreasoned and therefore unacceptable; and it might appear to have been included simply to try and prevent any appeal. It seems to us likely that there will be a great deal of background material which is non-controversial. There is no need to recite at length in the decision the evidence which has been received. What a tribunal should do is state their findings of fact in a sensible order (often chronological), indicating in relation to any significant finding the nature of the conflicting evidence and the reason why one version has been preferred to another."

39. Regarding the obligation of a tribunal to explain the reasons for its decision, that obligation was discussed in three authorities to which reference was made by senior counsel for the respondents. In UCATT v Brain [1981] IRLR 225, at 227, Lord Justice Donaldson, as he then was, said:

"Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law… The reasons are then recorded and no doubt tidied up for differences between spoken English and written English. But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given."

40. In Martin v Glynwed Distribution Ltd [1983] IRLR 198, Lord Justice Donaldson again underlined that message at p.202:

"The duty of an Industrial Tribunal is to give reasons for its decision. This involves making finds of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation of them, but it is not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the Industrial Tribunal addressed its mind and why it reached the conclusions which it did, but the way in which it does so is entirely a matter for the Industrial Tribunal."

41. Then, in the case of Meek v Birmingham District Council [1087] IRLR 250, at p.251 Lord Justice Donaldson articulated the test in a form that is now frequently referred to and relied on:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises."

42. Finally, regarding a case where perversity is founded on as a ground of appeal, the relevant test is set out in the case of Yeboah v Crofton [2002] IRLR 634, a test which was recently adopted by the Inner House of the Court of Session in the case of Forbes v Salamis, Extra Division , 16^t July 2005, and is to the effect that such a case should only succeed where an "overwhelming case" (Yeboah, per Mummery LJ at paragraph 93) is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached.

Submissions for Claimant on Appeal

43. Miss Callaghan, for the claimant, began by making general criticisms based on the length of the tribunal's judgment and on there having been a delay between the close of hearing and the its promulgation. They sounded very much like a "back door" attempt to introduce a ground of appeal based on the fact of delay which was included in the claimant's original notice of appeal but had not been allowed through to a full hearing. We do not, accordingly, propose to do more than record that they were made.
44. Four grounds of appeal were presented.

1. Failure to address cumulative effect

45. The claimant's first ground of appeal was that the tribunal erred in law by failing to consider and address the cumulative effect of the respondents' actions in determining whether there was a breach of the implied term of trust and confidence. She accepted that it could be seen from the terms of the judgment that they had reminded themselves of and understood the correct test. They had not, however, in her submission, considered whether the individual breaches complained of amounted to a material breach. Nor had they, she said, considered whether the individual actings complained of, even if not themselves breaches of contract, put together amounted to a breach that was material.

2. Failure to apply the correct test

46. This ground was really an extension of the first one. Miss Callaghan referred to the fact that the tribunal had, at paragraphs 123, 135, and 148 of their judgment, referred to the question of whether or not there had been a "material breach of the implied term". She submitted that since a breach of the implied term of trust and confidence was itself a material breach, the tribunal's language showed that they were setting too high a test for the claimant to overcome. That they had had the wrong test in mind was emphasised, she said, by the fact that they had not referred to the case of Morrow.

3. Misapplication of law or perversity in relation to election

47. Miss Callaghan referred to the law relating to affirmation of a contract by an innocent party as the doctrine of election. She submitted that a party could not, as a matter of law, be found to have elected to affirm without having both knowledge of the breach and knowledge of his legal rights arising therefrom. She relied, in support of that submission on the case of Peyman v Lanjani & Ors [1985] Ch 457, a case concerning an application for a licence to assign a leasehold interest where May LJ said, at p.494:

" …I do not think that a party to a contract can realistically or sensibly be held to have made this irrevocable choice between rescission and affirmation unless he has actual knowledge not only of the facts of the serious breach of the contract by the other party which is the pre-condition of his right to choose, but also of the fact that in the circumstances which exist he does have that right to make that choice which the law gives him."

48. She also referred to the case of Bliss v South Eastern Thames Regional Health Authority [1985] IRLR 308 although we note that in that case, which concerned a claim under a contract of employment, Lord Justice Dillon said, at paragraph 56:

"Founding on Peyman v Lanjani ….a decision of this court only very recently reported, (Mr Reynolds) submitted that as a matter of law the plaintiff could not be held to have elected to treat the contract as still subsisting and not at an end until he knew his legal rights…….."

49. Part of the above passage from May LJ was then referred to and he continued:

"This is a formidable argument and the acceptance of it could have considerable repercussions in employment law. But I do not find it necessary to express any opinion on it in the present case and I prefer not to since Mr Reynolds candidly admitted that he did not take the point in the court below and, though Mr Playford did not object in this court to the point being taken, I am not wholly satisfied that further evidence might not have been adduced in the court below if the point had been taken."

50. Miss Callaghan relied on Lord Justice Dillon having referred to the Peyman point as being a "formidable argument". There was, she submitted, no good reason for not applying the Peyman approach to the present case. If the tribunal had done so, they would have been likely, she said, to have found in favour of the claimant. He had gone to his union promptly and it had taken some time to get an appointment with the Edinburgh solicitor. The tribunal would, she submitted, have been bound to find that he did not know of his legal rights until he had consulted with his solicitor.
51. Separately, if the Peyman approach did not find favour, it was perverse of the tribunal not to have found in favour of the claimant on the matter of the delay between 20 March 2002 and his letter of resignation on 29 May, over two months later. The claimant was an academic in a highly specialised field. He had exam papers to mark. He had been encouraged not to resign. Two months was not too long. These factors, particularly the encouragement to refrain from resigning, showed that the tribunal's decision was perverse.

4. Failure to address the evidence of the appellant's witnesses

52. The only matter of which adequate notice had been given in the notice of appeal was the claimant's complaint that the tribunal had not taken account of the evidence of a witness Dr Riches, regarding what happened at the meeting on 2 November 2001. Further, no other aspect of the evidence was referred to in the claimant's skeleton argument. Miss Callaghan sought to go beyond that and to refer to other witnesses and other aspects of the evidence but Mr Truscott objected to her doing so on the grounds of lack of notice. We upheld his objection and restricted Miss Callaghan, under this ground of appeal to the matter of which notice had been given.
53. Parties had agreed a note of Dr Riches' evidence for the purposes of this appeal and Miss Callaghan referred to parts of it where Dr Riches had indicated that he had found the meeting of 2 November a "shocking affair", that the claimant had tried to refer to what Professor Skorupsi had said about him i.e. Dr Riches, and that the claimant had got half way through his statement and they "jumped down his throat" and he was not allowed to speak any more.
54. Miss Callaghan submitted, under reference to the passage from Anya which we have set out in the part of this judgment which deals with the relevant law, that the tribunal were obliged to set out their findings in respect of Dr Riches' evidence about the meeting of 2 November because it was to the effect that the claimant was not only prevented from speaking but he was treated in a bullying fashion. This was a matter of conflict and should have been resolved. Had the tribunal done so, it could have made an impact on the outcome of the issue of whether or not there was a breach of contract in respect of the meeting. She explained that the claimant asserted that he was, contrary to the finding of the tribunal, "muzzled simpliciter". She added that the claimant instructed her to say that he was concerned about why the tribunal did not address this evidence but nothing more was to be said about that in this hearing. We were concerned at such an apparent lack of frankness and asked her to explain what the claimant meant. Apparently his view is that the evidence was deliberately suppressed by the tribunal, a view about which, we were told, more can be found by reading his website. Such an allegation is an extremely serious one in respect that it amounts to an allegation of improper actings on the part of a judicial body. We note, however, that no ground of appeal was advanced to that effect, something which we would have expected if it had any cogent foundation at all, and we propose to say no more about the matter.
55. Finally, Miss Callaghan recognised that a very real problem for her case was that no ground of appeal was directed at the finding that the claimant did not resign because of anything done or not done by the respondents, let alone because of any breach of contract by them. That was a fundamental finding that, on the hypothesis of the claimant's case, remained sound and intact. Her submission came to be that notwithstanding that, there should be a remit to a freshly constituted tribunal on all issues as a result of the grounds of appeal that were argued because there might be a "trickle down" effect and a new tribunal might decide differently on the question of the reason for the claimant's resignation .

Submissions for Respondents on Appeal

56. For the respondents, Mr Truscott observed that this had been a long a difficult case before the tribunal regarding an employment relationship in which there was conflict throughout. The tribunal had found that there had been no breaches of contract by the respondents in any respect. The only contractual term in issue being the implied term duty of trust and confidence, every time there was a reference to a breach, it was, obviously, a reference to breach of that term and that was something to bear in mind when reading the judgment.

Failure to address cumulative effect

57. Mr Truscott submitted that there lay behind this ground an assumption by the claimant that if he said something was a breach of contract, then it was one. The claimant's approach failed though, to take account of the fact that the tribunal had not found that there had been any breaches of contract at all. The nature of the conduct complained of in this case, being conduct by different employees at different times and of different types, was never going to be capable of being seen as a series of actions amounting cumulatively, to a relevant breach.
58. The tribunal had taken account of the correct test as was evident from their citation and discussion of authority.

Failure to apply the correct legal test

59. Mr Truscott submitted that it was plain that the tribunal knew the correct test and it was not a fair reading of their judgment that they had misapplied it and applied a higher test. It could be seen that they had looked for but not found conduct going to the root of the contract. Paragraphs 122 and 123 were references to the claimant's own submission and the language used by him and not an indication of them having the wrong test in mind.

Misapplication of law or perversity in relation to election

60. Mr Truscott submitted that Peyman was not an accurate statement of Scots law regarding affirmation of contracts by an innocent party. Further, the test for perversity was not met.

Failure to address evidence

61. Mr Truscott submitted that this ground of appeal was also ill founded. Dr Riches had given evidence about the effect on him of the meeting, not of the effect on the claimant. This was a classic example of the claimant having different perceptions from those concluded on by the tribunal. In any event, Dr Riches' evidence did not go to the heart of things. The claimant did not resign in response to the meeting nor was his complaint before the tribunal one of conduct.
62. Finally, Mr Truscott referred to the fact that the tribunal's finding on the effective cause of the claimant's resignation remained unchallenged which meant that even if the grounds of appeal advanced fell to be sustained, the end result remained the same. The appeal should, accordingly, be dismissed.

Decision

63. At the outset we should indicate that we accept the submission of the respondents regarding the fact that none of the claimant's arguments amounted to a direct challenge to the tribunal's finding that the reason for his resignation was that he had determined to leave anyway (paragraph 132), a conclusion which, we observe, was amply supported by the facts found by the tribunal. The claimant had, in the original notice of appeal, included a ground that would have sought to attack that finding but it was held, at a preliminary hearing, not to amount to a ground that the tribunal had erred in law and not, accordingly, allowed through to a full hearing. We accordingly, have to start on the basis that that finding was a sound one and unless anything in the submissions in respect of the grounds of appeal that were advanced leads us to change that view, the appeal cannot succeed.
64. As regards the first and second grounds of appeal, we are readily satisfied that the tribunal were well aware of the "cumulative effect" test. They record, at more than one point, that that was the claimant's case. They indicate, at paragraph 123, that their response to the claimant's summary of what he alleged to have been material breaches was that none of them "singularly or collectively" could be construed as a material breach of the implied term. They considered the whole of the respondents' conduct during the period of the claimant's employment and found that they acted "reasonably throughout" (paragraph 125). We consider that that is a finding of singular importance in the case. It indicates that not only did the tribunal, having heard and assessed the evidence as judges of the facts in the case, conclude not only that each and every one of the aspects and incidents of the respondents' conduct relied on by the claimant amounted to reasonable conduct but that looked at over the whole period, it was reasonable conduct. That finding having been made, there was no room for any finding of breach of the implied term of trust and confidence whether on the basis of a single incident or on the basis of looking at the whole course of conduct.
65. Certainly, the allegations all having been of breaches of the implied duty of trust and confidence, any such breach would have amounted to a material breach for the reasons discussed in Morrow and it is not, accordingly, strictly correct to refer to material breach of that term. It would have been better if the tribunal had simply referred to breach of the implied term at the points referred to on behalf of the claimant. However, it is incumbent on us to read the tribunal's judgment as a whole and the phrases extracted on behalf of the claimant in context, not to embark on the sort of conveyancer's analysis that was deprecated by Lord Justice Donaldson in the cases of UCATT, Martin, and Meek. When that is done, it is plain, in our view, that the claimant's criticism is without substance and the tribunal have not fallen into error.
66. Regarding the third ground of appeal, we are not persuaded that it would be appropriate to follow the case of Peyman. We note that it is a decision that is now more than twenty years old and despite the possibility of it being applied in the employment law context having been raised in the case of Bliss, it has never since reared its head. Bliss cannot be regarded as having approved Peyman, contrary to what was tentatively suggested by counsel for the claimant. Further, the facts in Peyman were highly unusual and appeared to have evoked considerable sympathy. The means by which the Court of Appeal overcame the hurdle presented by the dicta of Lord Diplock on the subject of waiver, in the case of Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 might not withstand further challenge and we note that it was only "with some hesitation" (p.488) that Stephenson LJ agreed with the decision. Further, on the facts of the case, the "guilty" contracting party had not suffered any detriment whereas in the employment context, an employer will always, at the very least, be able to point to the fact that he has continued to pay the employee's salary. Most importantly though, the Peyman approach, in our view, conflicts with the principle that determining whether an employee resigned due to and by accepting his employer's repudiatory breach or whether he had infact affirmed the contract of employment, is a matter of assessing all the evidence as discussed, for instance, in the case of W E Cox Toner Ltd. We are not aware of any authority in the employment law field which suggests that if that evidence does not include that the claimant knew of his right to resign, then he will automatically be regarded as having resigned for that reason and cannot be regarded as having affirmed the contract. Such an approach would seem to risk producing the result that if infact he resigned for some other reason, he would have to be regarded as having resigned because of the repudiatory breach, which would, we consider, be quite wrong.
67. We also note that counsel for the claimant did not indicate exactly what right it was that the claimant would require to be aware of before he could be taken to have affirmed his contract of employment. If it was being suggested that he would have to have known that he was entitled to leave his job, it is hard to believe that that is not something of which all employees are aware. Employees are not obliged to remain in any particular employment and the ability to leave a job if dissatisfied with it, including in circumstances in which the employer has conducted himself in such a way that the employee cannot reasonably be expected to put up with it, is well known. The question of whether or not the employee can leave without giving notice may not be so widely known but that is a matter of detail. It can hardly be suggested that employees in the United Kingdom think that they can be forced by employers to turn up at work if they have decided that they cannot, for whatever reason, face doing so any longer. It is, in short, a quite different factual matrix than that which prevails in a case concerning rights and obligations under a contract for the transfer of a leasehold interest when it is readily understandable that a party might not be aware of his right to walk away from his contractual obligations. There is also a very significant difference in law in respect that, in the latter case the party who walks away from his contract without justification could be successfully sued for specific implement.
68. It was submitted on behalf of the claimant, that if the tribunal had applied the Peyman principle, they would have held that he could not have affirmed the contract of employment until he knew of his legal rights and that could not have been until after he had had his meeting with the union solicitor, an event which the tribunal held had not taken place until a few days before 29 May 2002. The claimant clearly, however, knew of the concept of constructive dismissal long before that, judging by what he wrote to the respondents in his letter of 11 March 2000, for instance. He cannot, accordingly, have been in ignorance of the right of an employee to resign in the event of repudiatory breach by the employer. It rather looks as though what the claimant was actually seeking to argue was that, on the Peyman principle, he should not be held to have affirmed until he had been advised that, on the particular facts of his case, the judgment of his solicitor was that the right arose. That amounts, in our view, to suggesting that an employee could not be held to have affirmed unless he had received legal advice to the effect that he had a good case for constructive dismissal and we do not read even Peyman as going to that extreme. Thus, even if the claimant was right and Peyman is to be seen as applying in the employment context, his submission would still fall to be rejected since, as a matter of fact, he did not need a solicitor to tell him in May 2002 that he was entitled to resign in response to repudiatory conduct; he knew that already and had known it for over two years by then.
69. We turn to the subsidiary perversity argument. This is a high test and we are not satisfied that the claimant overcomes it. The tribunal properly and appropriately addressed the question of what they were to make of the evidence about the delay between 20 March and 29 May and the claimant's reasons for resigning. On that evidence, they were quite entitled to reach the view that they did. It cannot be said that no reasonable tribunal would have decided as they did. We do not see that the factors relied on by the claimant necessarily point in the opposite direction. In respect that Ms Callaghan seemed to stress that efforts had been made to persuade the claimant not to resign, we note that it seems that the last of these occasions was in November 2001, not in or about March-May 2002. We do not agree that that factor should have been given special weight.
70. Turning to the fourth ground of appeal, we consider that it is without merit. Whilst the evidence of Dr Riches that was referred to by counsel for the claimant is not specifically referred to by the tribunal, it seems to us that there are good reasons for that. They made their findings regarding what happened at this meeting in a general way at paragraphs 76 and 147, electing, as they were quite entitled to do, not to detail exactly what was said by each witness regarding what happened at the meeting. No tribunal is obliged to recite the evidence at length in its judgment; that is not its purpose. Not even the passage from the case Anya, to which we have referred, requires that. Had it been that the question of whether or not the Principal behaved in an aggressive fashion was an important issue in the case and there were conflicting accounts about it, then more detail about the evidence on that matter and the tribunal's resolution of such a conflict could have been expected. But it was not an important issue and we note from the agreed record of the cross examination of Dr Riches, that his evidence about the behaviour of the Principal at the meeting was not challenged. It was not part of the claimant's "summary in a nutshell" (paragraph 108) of what the main issues were that made him resign and he specifically disavowed any question of his case being about bullying or harassment. The matters that he wished to discuss at the meeting and was prevented from doing were not, in any event, matters which related directly to him but concerned his views about the way that Dr Riches had been treated. We do not, in these circumstances, accept the submission that the tribunal erred in not making reference to Dr Riches' evidence and we cannot see that if they had done, it would have made any difference to their conclusion about the meeting, namely that it was an example of reasonable conduct on the respondents' part in that they had made a policy decision to deal with the problems in the department by moving forward and not looking backwards and re-opening old wounds. They did not accept that the essence of the claimant's complaint about that meeting which was that he regarded the respondents as having failed to engage with him in discussion of matters which he considered ought to be discussed amounted to any breach of contract.
71. We are not, accordingly, persuaded that we should uphold any of the grounds of appeal and confirm that we do not consider that anything argued impinged in any way on the soundness or validity of the tribunal's finding as to the cause of the claimant's resignation. In these circumstances, the appeal falls to be dismissed and we will pronounce an order to that effect.