United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G ROWELL (of Counsel) ThirtyThree Bedford Row Barristers Chambers 33 Bedford Row London WC1R 4JH
For the Respondent	MR NICHOLAS SPROULL (of Counsel) Instructed by: Swindon Borough Council Legal Services Euclid Street Swindon Wiltshire SN1 2JH

SUMMARY

Unfair Dismissal: Constructive Dismissal

School teacher alleging driven to resign by breakdown of trust and confidence and repudiatory breach by employer.

Employment Tribunal upheld. Ample reasoning for findings: 1) no fundamental breach and 2) teacher resigned to take new job at more pay.


 


MR RECORDER LUBA QC

Introduction

1. This is an appeal from a decision of the Bristol Employment Tribunal dismissing claims made by Mr Gould against his former employers, the Swindon Borough Council. Those claims before the Tribunal arose from the circumstances in which Mr Gould came to resign from his employment at the Greendown Community School in Swindon (for which the Borough Council is the relevant employer) and also from a number of grievances he held about his employer's conduct towards him over the period of his employment up to the point of that resignation. His case before the Employment Tribunal included, importantly, a claim for unfair dismissal on the basis that he had been driven to resign his post as a science teacher in the community school by the conduct of his employers which conduct was, he alleged, a fundamental breach of the employment contract between them.

The Relevant Facts

2. Mr Gould had been the Head of Science at a private preparatory school in London until June 2000 when he joined the staff of Greendown Community School as a science teacher. Although himself a graduate, he had no Post-Graduate Certificate of Education and he was initially paid on the unqualified teacher scale. Indeed, he was employed as an "unqualified teacher". While at the school, he followed a graduate teacher programme (GTP) which he completed and which led to his moving eventually to the qualified teacher pay scale the following year (in June 2001). Mr Gould had held and expressed multiple concerns about the circumstances in which his training under the graduate teacher programme had been managed by the school and the burden of the teaching responsibilities which had been placed upon him during this training.
3. When the programme of training was completed, there then arose a dispute as to the correct salary point that Mr Gould should be accorded on the teaching pay scale. This led to a formal grievance and, ultimately, Employment Tribunal proceedings which were concluded by settlement (negotiated through ACAS) in October 2002.
4. In 2003 the school received complaints from one or more parent(s) and pupil(s) about Mr Gould's classroom teaching and in June 2003, the head teacher appointed another member of staff to investigate these complaints. Simultaneously, review meetings were put in place so that Mr Gould's lesson-planning could be reviewed by senior teaching staff. It is also part of the factual background that Mr Gould had two substantial periods of absence from the school which he attributed to work-related stress.
5. In late 2003 negotiations began for an agreed severance package under which Mr Gould would leave his employment. Before they were concluded, he resigned his post with effect from 31 December 2003 and in January 2004 he began teaching at another school.
6. This short account of the factual background is precisely that. A substantially fuller and more detailed account is helpfully given in the written reasons of the Employment Tribunal from whose decision this appeal is brought and we have that comprehensive account in mind in considering the appeal. It will be necessary to say a little more about certain aspects of the factual history as we deal with the various grounds advanced now by Mr Gould as the Appellant before us.

The Employment Tribunal Decision

7. By an application filed in January 2004 with the Employment Tribunal Service, Mr Gould set out the following misconduct which he alleged he had been subjected to by his employers.

"1. Being subjected to a detriment by my employer for making protected disclosures…

2. Imposing disciplinary action against me without first holding a disciplinary hearing ; denying me my right to appeal or to file a grievance; failing to arrange a grievance hearing (having been told by my union the school was not following procedure);

3. Holding an enquiry and ignoring my request for the result while continuing to assert that I was under-performing;

4. Breach of contract".

Those extracts are taken from the first typed page of the attachment to his first application to the Employment Tribunal. This application was accorded claim number 033/04.

8. By a further application (accorded reference 632/04) he sought compensation for "constructive dismissal; in the alternative, unfair dismissal" and in the body of that second application, he asked for his two applications to the Tribunal to be considered at the same time. The Respondent employers put in appearances to both those applications.
9. The Employment Tribunal considered the applications over four days, hearing several witnesses and reviewing considerable documentation. The Tribunal reconvened in private for a further day to deliberate on its decision. It delivered written reasons which were received by the parties in March 2005 and which run to some 20 closely typed pages over 64 substantial paragraphs. The Employment Tribunal unanimously dismissed both applications made by Mr Gould and thereby all of the complaints that were constituted by his applications.

This Appeal

10. From the dismissal of the complaints originally brought under the first of his applications, that is to say, the complaints of detriment, for making protected disclosures, specified breaches of contract, etc (as we have already set out above) no appeal is now pursued. This was made plain by Mr Rowell appearing for Mr Gould at the hearing before us. As Mr Rowell made absolutely clear, the appeal before us is pursued solely in relation to the Employment Tribunal's rejection of the complaint of constructive dismissal. The appeal was originally presented in a Notice of Appeal settled by Mr Gould acting in person. This extensive Notice asserted that Mr Gould had not received a fair hearing before the Employment Tribunal and it particularised that complaint in some detail. The Notice of Appeal also offered an almost paragraph by paragraph critique of, and commentary on, the Employment Tribunal's written reasons, alleging at almost every turn that the Employment Tribunal had misunderstood the facts, had misconstrued the evidence or had reached perverse conclusions.
11. A preliminary hearing of the appeal was directed by an Employment Appeal Tribunal and at that preliminary hearing, Mr Gould was assisted by Counsel who was attending at the Employment Appeal Tribunal's offices as a volunteer on a scheme established for the assistance of litigants in person. On his advice, we deduce, Mr Gould abandoned the Notice of Appeal as lodged; he secured permission from the Employment Appeal Tribunal, as then constituted, to amend his Notice of Appeal by substitution. That wholly substituted statement of grounds was faithfully submitted in accordance with the directions of the Employment Appeal Tribunal and constitutes now the basis upon which this appeal falls to be considered.
12. As re-cast, the focus of the grounds of appeal is now almost exclusively on the proposition that the Employment Tribunal erred in law in its approach to the issues of constructive dismissal and in particular, in dealing with whether there had been a repudiatory breach of contract and the employee's response to that.
13. The appeal has been advanced before us today by Mr Rowell of Counsel (who was not Counsel at the preliminary hearing, but who has maintained the grounds of appeal as formulated by previous Counsel). The appeal has been opposed by Mr Nicholas Sproull on behalf of the Respondent and it is right that we record at this point in our judgment the assistance we have derived from the Skeleton Arguments of each Counsel and their succinct and helpful oral submissions before us.

The Grounds of Appeal

14. Mr Rowell for the Appellant helpfully re-formulated, at the outset of his submissions, the various paragraphs of the amended Notice of Appeal into essentially three grounds, each of which were said to amount to an error of law and each of which, it was submitted, would justify this Employment Appeal Tribunal intervening in the decision made below.
15. The first of the grounds concerned whether the Employment Tribunal had directed itself properly (and not acted perversely) in finding that there had been no fundamental breach of the employment contract by the employer.
16. The second ground was that the Tribunal below had misunderstood the authorities and misapplied the legal test in relation to what may be described as "reasonable and proper cause" when reviewing the actions of the employer.
17. The third ground was that the Employment Tribunal had misapplied the law or reached a perverse conclusion on the appropriate approach to the employee's response to the employer's alleged fundamental breach.
18. Thus, reformulated, these grounds have assisted us in considering the gravamen of the Appellant's contentions on this appeal.

The First Ground of Appeal

19. We turn first then to ground 1. This can be taken in its three component parts as Mr Rowell helpfully set them out in his submissions. His first contention on ground 1 was that the Tribunal had erred in law because it had approach the matter, as can plainly be inferred from the language it used, simply as a complaint of a single breach of the terms of employment between employer and employee, that is to say a breach of the implied term of trust and confidence. It had, contended Mr Rowell, failed to deal with another free-standing breach of the contract which had been advanced in submissions before it. As elucidated by Mr Rowell, this particular free-standing breach of contract, was a breach of a disciplinary procedure which, Mr Rowell contended, had been accepted as a part of the contract between Mr Gould and his employers. More particularly, the breach contended for was that, in June 2003, the head teacher had issued a letter amounting to a written warning in respect of an aspect of Mr Gould's conduct, without having first interviewed Mr Gould (or conducted any other investigation into the merits or otherwise of the matter which formed the subject of that letter). In short summary, in order only to give sense to this part of the judgment, it should be indicated that this warning related to an occasion on which it was said Mr Gould had left his work group of students unsupervised and removed himself from the school without proper excuse for doing so.
20. Initial objection is taken by Mr Sproull, for the Respondent, to Mr Gould's reliance on this ground of appeal at all. Mr Sproull submits that this alleged free-standing breach of the employment contract was not one put to the Tribunal in those terms at all and therefore firstly, the Tribunal cannot be criticised for failing to deal with it; and secondly, it cannot be advanced wholly anew or afresh on this appeal. Mr Rowell's submissions therefore started by seeking to show us that this matter had in fact been, as it were, "in play" before the Tribunal. He took us to the second of the Originating Applications made to the Employment Tribunal (page 4.8 of the bundle before us) and in particular paragraph 6 of that document in which Mr Gould sets out a number of grievances including:

issuing a written warning firstly for something I was innocent of and secondly without a hearing, in clear breach of procedure".

The complaint continues:

"refusing to let me appeal against that warning or to file a grievance; refusing for months to withdraw the warning; and, on final1y withdrawing it, saying (in my opinion) that I was still in effect guilty".

The submission of Mr Rowell is that the Tribunal ought, in leaning to assist a litigant acting in person who was not himself a lawyer or in any way legally trained, to have construed that passage in the paragraphs of the Originating Application as raising a free-standing complaint that there had been a breach of a term or condition of the contract other than, or in addition to, the term relating to trust and confidence. Mr Rowell strengthened this submission by taking us to the terms of the written closing submissions of Mr Gould in which he wrote on page 13.25 (of our bundle) at line 36:

"This and a refusal to follow procedure was a fundamental breach"

which is, again, referring back to the June 2003 written warning. In his own language, Mr Rowell put to us that the Tribunal ought to have appreciated that "buried within" this text or the text of these documents was an assertion of a distinct or "other" breach of the contract. Indeed, if that be right, he would then contend that the breach in question was a fundamental breach of the employer's disciplinary procedure and thus, of the contract itself.

21. Mr Sproull's reply to those propositions is that this is not the basis upon which the Employment Tribunal were considering the case or the basis upon which the complaints were advanced before them. As to the documents relied upon by Mr Rowell, firstly as to the terms of the second Originating Application to the Employment Tribunal, Mr Sproull draws attention to the fact that the relevant passages open with the words "I lost all trust and confidence in the school…" and that paragraph 6, on which Mr Rowell has relied, is simply an exposition of various events or matters in support of the contention that trust and confidence had been lost. Indeed, the relevant pages of the Originating Application conclude at paragraph 16 with "all trust and confidence had gone…"
22. As to the terms of the written closing submissions, on which Mr Rowell relies, Mr Sproull draws attention to the fact that the relevant passage follows a heading at line 22, page 13.25 (of our bundle) which reads

"The Respondent breached the term of mutual trust and confidence…in that (non-exhaustive):"

He says that, understood in that context, it is plain that Mr Gould is advancing the matter of the breach of disciplinary procedure not as a free-standing breach of contract of all, but as an instance of the employer's breach of the term of mutual trust and confidence. He strengthens that submission by taking us to the terms of his own written submissions to the Tribunal and the basic structure of Mr Gould's response to those. Most importantly of all, he takes us to paragraph 60 of the Tribunal's written reasons in which the Tribunal record the case being put before them in the following terms:

"The claimant submits that the respondent acted in fundamental breach of the implied term of trust and confidence and of the implied term that it will take all reasonable steps to provide a safe system of work".

23. It is plain, therefore, that the Tribunal did not believe itself seized of any free-standing claim or assertion in relation to breach of contract established by way of breach of the disciplinary code. Before reaching our conclusions on this point, we ought to explain that the second part of the sentence just quoted from the Tribunal's decision relates to what was a free-standing complaint of failure to take reasonable steps to provide a safe system of work which was dismissed by the Tribunal and upon which nothing further turns.
24. Our conclusions on this ground, therefore, require us to answer the question whether the Tribunal erred in failing to address and determine an issue as to whether there had been a further breach of the contract beyond any alleged breach of the term as to trust and confidence. We are quite satisfied that there is no error here by the Tribunal on this ground. In plain terms, the matter now advanced by the Appellant in this appeal was not put to the Tribunal below. We are satisfied that the explanation given by Mr Sproull of the proper construction of these various documents which are now before us is the correct one and they are of a piece with paragraph 60 of the Tribunal's reasoning. It is far too late, in our view, that at this stage, for Mr Gould to erect an argument that the Tribunal ought to have dealt with a free-standing claim of breach of contract above and beyond the two express breaches of (1) trust and confidence and (2) health and safety which are, in terms, advanced in the material before the Tribunal. It follows that we do not believe that Mr Gould has made out the first limb of the first ground of appeal and that is, therefore, rejected.
25. The second limb of the first ground contends that the reasoning of the Tribunal was inadequate in its handling of the question whether there had been a fundamental breach of the implied term in relation to trust and confidence. In particular, contends Mr Rowell, the Tribunal failed to go through a simple three stage process (1) asking whether a particular action or omission by an employer had been a breach of contract; (2) if it had been a breach, whether it was sufficiently serious to constitute a repudiatory breach; and (3), to ask itself whether the employee had resigned in response to that breach. We are here focusing, of course, on the first two elements of that question: whether there was a breach and, if so, whether it was sufficiently serious to be repudiatory.
26. It is certainly right that in the relevant paragraph of the written reasons, that is to say paragraph 61, the Tribunal does not expressly set out the three stage approach that is suggested in the written and oral submissions now made by Mr Rowell. However, the issue before us is not whether the Tribunal structured their decision in a particular way or to a particular format, but whether they addressed the right legal questions and gave sufficient reasons for the determination they made in relation to those questions. We are satisfied that the Tribunal did properly direct itself to the relevant tests set down in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 as is, indeed, indicated by their reference to that case and the relevant propositions derived from it in paragraph 60 of their written reasons.
27. Mr Rowell's criticism in this aspect of the case is spotlighted upon the particular language used by the Tribunal in one part of paragraph 61 of the written reasons. It will be convenient at this point to reproduce paragraph 61 of the written reasons which was in these terms:

"We have considered all of the evidence provided to us in relation to this claim. The actions of the respondent which the claimant submits amounted to a fundamental breach of the implied term of trust and confidence include: the respondent's refusal to remove a 'record of concerns' written in March 2001 from his personnel file; its raising of performance issues with him in January and May 2003 and the manner in which it sought to address those issues; its failure to notify him of the results of Mr Pearson's inquiry in June 2003; its issue of a warning for misconduct in June 2003 and the delay in rescinding that warning as well as the failure to fully acknowledge that it was issued in error; the failure to honour the settlement agreement under negotiation in the autumn term 2003: We do not consider an of these actions on their own amount to a fundamental breach of any term of the claimant's contract. We reach this conclusion despite there being some aspects of the respondent's actions which could be challenged, for instance: the failure to allow an appeal against the governors decision on the claimant's grievance in 2002; the failure to formally notify the claimant of the results of Mr Pearson's inquiry in June 2003; the decision in July 2003 to stop the lesson planning support meetings despite the claimant's agreement that he would be prepared to meet without a witness; the issue of the written/oral warning in June 2003 in breach of its disciplinary procedures and the failure to acknowledge that this constituted a breach of procedure when it was rescinded in October 2003. We have considered whether these individual actions could have the effect cumulatively of undermining trust and confidence and we find that they could not. Our reasons for so finding are these omissions and errors, judged in the context of the respondent's overall dealings with the claimant, are of relatively minor consequence. Based on the facts that we have found and looking at the respondent's conduct as a whole, we conclude that the respondent did not act in fundamental breach of the implied term of trust and confidence. Throughout the claimant's employment, the respondent maintained a dialogue with the claimant and we are satisfied that the evidence of its genuine and reasonable attempts to support, accommodate and retain the claimant's services is extensive and far outweighs the rare occasions when its paperwork or procedures were lacking in some respect. Even if we were to conclude that the omissions and errors referred to did cumulatively amount to a breach of the implied term of mutual trust and confidence, we would find that the respondent acted with reasonable and proper cause in its efforts to balance and manage its resources to meet its obligations to its pupils and staff as well as its obligations to the claimant".

28. As we have indicated, particular attention has been focused on one set of words or phrases in that paragraph. That is the particular sentence starting "We reach this conclusion despite there being some aspects of the respondent's actions which could be challenged…". Mr Rowell's succinct submission for Mr Gould is that this is a manifest failure by the Tribunal to undertake the function of determining whether the "actions" in question were or were not breaches of the employment contract and whether they were sufficiently serious to constitute repudiatory breach. What, he asked rhetorically, is to be understood by the Tribunal's use of the words "which could be challenged"? He urges that the Tribunal ought to have found whether these matters were breaches of contract at all and then considered whether they were sufficiently fundamental to constitute a repudiatory breach of the implied term in relation to trust and confidence. He says that there is an error of law here which derives from the failure to follow the correct approach and which is manifest by the use of that rather obscure form of wording.
29. Mr Sproull's riposte is that the particularly criticised sentence in question must be seen in the overall context of the decision and the functions of the Tribunal. This Employment Appeal Tribunal should not, he contends, be treating the judgment of the Employment Tribunal as though it were a statute requiring to be construed or the reserved judgment of a Chancery High Court Judge. The question that we should ask ourselves is whether it is tolerably clear from the passage (in which the words appear) as a whole, what it is the Tribunal were addressing and what it is that they were intending to communicate by the words used. He submits that it is tolerably plain (in context) that the Tribunal were, in paragraph 61, gathering up all of the actions by the Respondent which the Claimant had submitted might amount to a fundamental breach. They had first set out, in the opening sentences of paragraph 61, those actions which they did not consider (in respect of any of them) amounted to a fundamental breach of any term. They then go on (in the sentence which starts with the criticised words) to list a number of particular matters. Those matters, says Mr Sproull, the Tribunal must be intending to set out as matters which could be subject to the criticism that there had been some breach and perhaps repudiatory breach of the implied term of trust and confidence. We accept that that is a sensible construct of the paragraph and we do not accept that the Employment Tribunal's somewhat less than clear use of particular words or terminology vitiates the finding that they make in that paragraph. It is, in our judgment, tolerably clear, in particular from the words "we have considered whether these individual actions could have the effect cumulatively of undermining trust and confidence" that the Tribunal were addressing themselves, in considering those matters, to whether there had been a breach of the term in relation to trust and confidence and/or a fundamental breach. This second limb of the first ground of appeal is accordingly also rejected.
30. The third limb of the first ground of appeal is a contention by Mr Rowell that the Tribunal's conclusion on fundamental breach of the implied term as to trust and confidence was perverse. Putting it in its more usual formulation, he contends that no Tribunal faced with the findings as to the various "actions" of the employer which were found here could have determined that there was not a fundamental breach of the implied term. In particular, he drew our attention to the Tribunal's consideration of four matters. Firstly, the handling of the initial grievance over pay scale, once Mr Gould had achieved the relevant training qualification. He drew our attention to a letter sent by the governing panel of the school over the signature of its chair of the governor panel to Mr Gould indicating that this grievance was rejected and "this decision is final and there is no further appeal process available". That was, it appears, contrary to the terms of the grievance procedure that formed part of the employment contract (in that that procedure provided for a two-stage process before the governing body and thus included an element of appeal). That, says Mr Rowell for Mr Gould, is the first ingredient of several important ingredients which go to demonstrate a fundamental breach of the implied term.
31. Secondly, there was, contends Mr Rowell, the failure to notify the result and findings of the investigation into the complaints made by the parents and pupils as to the teaching standards of Mr Gould. He contends that although no express reference is made to this in the disciplinary procedures, nevertheless the employer was under an obligation to notify the result of the adjudication by the person who considered the complaints and it did not do so. He draws our attention to a passage in the Tribunal's judgment where they indicated that it was to be regretted that that had not been done. Again, Mr Gould contends that this should have gone to a finding of fundamental breach.
32. The third aspect of the actions complained of is the termination by the employer of the lesson-planning support meetings. It is said that this was an informal arrangement made by the employers to support Mr Gould in his teaching performance that was unreasonably withdrawn by the employer even after Mr Gould had indicated his co-operation with a proposal that he should in future attend such meetings unaccompanied by a fellow employee. Again, it is said that this would go to a finding of fundamental breach.
33. And then, fourthly, there is the instance in June 2003 when, in breach of the disciplinary procedure, the head teacher issued a written warning without conducting the necessary prior investigation and, moreover, in the submission of Mr Rowell for Mr Gould, doubled the damage by the failure to make an earlier acknowledgment of the error and breach that had occurred in that instance. Mr Rowell took us to the way in which that was dealt with by the Tribunal. Putting those matters together, he says, putting his case at its highest, that at least some of those would have constituted fundamental breaches of the implied term on their own, but putting his case at its lowest, he contends that taken together, those factors are such that no reasonable Tribunal would have failed to find that there was a fundamental breach of the implied term.
34. In order to test these propositions, we return to paragraph 61 of the Employment Tribunal's decision. The Employment Tribunal met head-on the contention that these particular matters amounted to a breach of the implied term. They say, having recited them all, the following:

"We have considered whether these individual actions could have the effect cumulatively of undermining trust and confidence and we find that they could not".

Their reason for that finding is based on the specific factual history of this particular case as is made clear by the next sentence starting "Our reasons for so finding are" and the sentences which follow. They have considered the omissions and errors that were made by the employer in the context of the employment relationship as a whole and of the whole context of the dealings between the employer and the employee. For example, as we are reminded by Mr Sproull, the Tribunal accepted that the issue of the written/oral warning in June 2003 had been an inadvertent error by the head teacher and further, that any breach that was constituted by it, had ended on the warning being withdrawn and removed from the personal file. It is perhaps right to focus attention at this point on the Tribunal's plain finding in paragraph 61 which echoes findings elsewhere in their judgment as the employer's conduct:

"we are satisfied that the evidence of its genuine and reasonable attempts to support and accommodate and retain the claimant's services is extensive and far outweighs the rare occasions when its paperwork or procedures were lacking in some respect".

That is the task or function which is precisely cast upon an Employment Tribunal. It is invited to look at the conduct of the employer in the context of dealings with the employer and the employee as a whole. A different Tribunal may have reached a different conclusion as to whether there had been a breach of the implied term and/or a fundamental breach, but that is not the test that Mr Rowell has to meet on his appeal. He has to demonstrate that on the material before this Tribunal, no reasonable Tribunal properly directing itself could have concluded otherwise that there was, in fact, a fundamental breach or several fundamental breaches of the implied term. We do not believe that that test has been met on the facts of this case, notwithstanding the cogent and helpful submissions of Mr Rowell. In our judgment, there is no error in the approach made by the Tribunal here in considering the specific matters as they have done in paragraph 61, having given chapter and verse as to the background of them in the earlier paragraphs of their judgment and then given specific reasons for finding that these did not constitute, cumulatively or individually, breaches of the implied term. It follows, having rejected the third element of the first ground of this appeal that we dismiss the first ground.

The Second Ground of Appeal

35. As already indicated, the second ground of the appeal is that the Tribunal misunderstood the authorities or misapplied the correct approach on the question of reasonable or probable cause for the Respondent employer's actions. In particular, all attention is focused on the last sentence of paragraph 61 which we have already extracted earlier in this judgment. Mr Gould says, through Mr Rowell, that the Tribunal has there misunderstood the importance or otherwise of the question of the reasonableness or propriety of the cause for the employer's action. In order to understand that submission, it is necessary to go very briefly to the relevant authorities. Mr Rowell drew our attention in particular to two judgments. It is only necessary, for present purposes, to take those briefly. First, we were shown a passage in the speech of Lord Nicholls of Birkenhead in case of Malik v Bank of Credit & Commerce International SA [1997] IRLR 462. In paragraph 8, Lord Nicholls records that in the Court of Appeal and in the House, the two parties in that case were agreed

"that the contracts of employment of these two former employees each contained an implied term to the effect that the bank would not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee".

Mr Rowell submits that it is tolerably plain from that formulation that there will not be a breach of any implied term if the employer's conduct is justified by a reasonable and proper cause.

36. To like effect, he showed us a passage in the judgment of Mr Brian Langstaff, as he then was, in the case of Hilton v Shiner Ltd. Mr Langstaff, giving the judgment at this Tribunal on that occasion, at paragraph 23 said this:

"23. To take an example, any employer who proposes to suspend or discipline an employee for lack of capability or misconduct is doing an act which is capable of seriously damaging or destroying the relationship of trust and confidence between employer and employee, whatever the result of the disciplinary process. Yet it could never be argued that an employer was in breach of the term of trust and confidence if he had reasonable and proper cause for the suspension, or for taking the disciplinary action".

37. So, says, Mr Rowell, this Tribunal ought to have asked itself: what were the actions done by the employer? were they capable of damaging the relationship of trust and confidence? and if so, were they actions for which these was reasonable and proper cause? Only if the answer to the latter two of those were in the negative, would there be a breach of the contract. Mr Rowell's submission is that the Tribunal did not apply themselves to the test in that way.
38. For his part, Mr Sproull accepts that the authorities are correctly cited by Mr Rowell and support the propositions he advances. But he asks us to look again at the actual words criticised in the Tribunal's decision. Again, without the forensic microscope that the Appellant has urged, he invited us to ask whether the Tribunal have sensibly here addressed themselves to the actions of the employer and considered whether there was reasonable and proper cause for what the employer did. Certainly, acknowledges, Mr Sproull, the Tribunal have not addressed themselves in the precise wording that the two passages extracted from the authorities might suggest, but nevertheless it is tolerably clear what they have found and why.
39. We accept that rejoinder by Mr Sproull. Indeed, we go further; even if it might be said that the Tribunal's wording is out of sync or somewhat elliptical, it is absolutely plain what answer they would have given had they posed the question in precisely the terms suggested in the two judgments from which we have extracted the above quotations. Here, the Tribunal have plainly found, having exhaustively considered the whole history of the employment relationship, that where the employer had got things wrong in a sense which might have amounted to a breach of the implied term, they nevertheless had reasonable cause for acting as they had in the circumstances of this particular case. Accordingly, we reject the second ground of appeal.

The Third Ground of Appeal

40. The third ground of appeal is that the Employment Tribunal had misapplied the law and reached a perverse conclusion when addressing the question of whether the Applicant had responded to a fundamental breach by his resignation. In other words, that the Tribunal were wrong on the question of the causal inter-relationship between the repudiatory breach and the resignation. Mr Sproull reminds us that this part of the Tribunal's decision was essentially ancillary and unnecessary, the Tribunal having itself been satisfied that there was no such repudiatory breach. Likewise, it follows that in our consideration of this ground, we are approaching it having already determined that there is no arguable error of law in relation to the Tribunal's finding of absence of fundamental breach and, indeed, no error of law on the earlier grounds advanced at all. However, in fairness to the very helpful way in which the ground has been advanced by Mr Rowell for Mr Gould, we will deal with it here lest we be wrong on grounds 1 or 2. The contention is that the Tribunal ought here to have found "yea or nay" whether the action of the employer amounting to a fundamental breach of the implied term was or was not a contributory causing factor, albeit not the only factor, in the subsequent resignation of the employee. That issue is addressed, albeit Mr Rowell contends not adequately addressed, exclusively in paragraph 62 of the Employment Tribunal's extended reasons which should be imported into this judgment at this point.

"We find that the respondent acted reasonably in seeking to address informally the claimant's lesson planning and that the procedure it adopted to do so was also reasonable. We find that there is evidence that the claimant wished to leave his employment with the respondent some months before he resigned (expressed in a letter to Mr O'Sullivan on 25 January 2003 and stated in evidence as having reached that conclusion in September 2003) which casts doubt on whether the actions he complains of in fact prompted his resignation. The claimant asserts that he had concluded by 18 September 2003 that he would have to leave his employment at Greendown because of his view that the respondent's attitude and actions towards him were unjustified and motivated by resentment. It is evident that the claimant interpreted the respondent's actions in this light, but it is our conclusion that the respondent's efforts to improve the claimant's teaching skills and to retain him in its employment were genuine. The claimant's reactions to the school's efforts to address gaps in his teaching made the situation increasingly difficult and lead eventually to the attempt by both parties to agree an exit route for him. Before a compromise agreement was concluded the claimant secured an offer of employment in the private sector at a higher salary. Because of this the respondent withdrew from the discussions on the compromise agreement, but confirmed that, if he wished to remain at Greendown, the claimant's employment could continue. The claimant nevertheless confirmed his resignation. We conclude that the claimant elected to leave his employment and did not resign in circumstances such that he was entitled to terminate his employment without notice by reason of the employer's conduct".

It is not without note that the first sentence of the paragraph records once again the employer's reasonable behaviour in taking the stance it had in relation to the difficulties that had been experienced in the history of Mr Gould's employment.

41. We accept that there is a degree of criticism which might be advanced that the Tribunal had not, with the utmost clarity, set out the issue which was before them on this matter or expressly stated in plain terms their finding of fact. The question for us is whether it is possible to deduce, from the language used, that the Tribunal were correctly directing themselves and did reach a firm conclusion. We remind ourselves, at the invitation of Mr Sproull that, in fact, at this point, the burden is on the employee to show that some part of the reason for his termination of his employment by resignation was the conduct of the employer. It is tolerably plain from paragraph 62 that, as whole, the Tribunal were directing themselves to that question and were plainly finding that Mr Gould had not so satisfied them. More than ample reasoning is given in paragraph 62 for that conclusion. It follows that we reject the third ground of appeal.
42. Having thus rejected all three of the grounds of appeal, helpfully and succinctly put to us by Mr Rowell for Mr Gould, it follows that we shall dismiss this appeal.