United Kingdom Employment Appeal Tribunal

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Cite as: [2006] UKEAT 527_5_2709, [2007] ICR 281, [2006] UKEAT 0527_05_2709

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		BAILII case number: [2006] UKEAT 0527_05_2709
		Appeal No. UKEAT/0527/05

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 March 2006
	Judgment delivered on 27 September 2006

Before

HIS HONOUR JUDGE BURKE QC
MR D WELCH
MR S YEBOAH

MRS E ROYLE CLAIMANT APPELLANT

GREATER MANCHESTER POLICE AUTHORITY RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR RICHARD OULTON (of Counsel) Instructed by: Graham Leigh Pfeffer & Co Solicitors 85 Chapel Street Manchester M3 5DF
For the Respondent	MR ANTHONY HOWARD (of Counsel) Instructed by: Greater Manchester Police Authority Salford Civic Centre Chorley Road Swinton Salford M27 5DA

SUMMARY

The Appellant's constructive dismissal claim was based on a lengthy series of complaints, some of which arose before she was offered and took promotion more than two years before she resigned. Her claim failed; the Tribunal found that at the time of her promotion she had waived previous matters which therefore were not to be taken into account at her constructive dismissal based on her later resignation and upon an accumulation of matters of which complaint was made. It was considered by the Tribunal, that subsequent conduct of the Respondents did not amount cumulatively to a fundamental breach of contract, that the event she claimed was a "last straw" was not a "last straw" and that she did not leave because of any misconduct on the employers' part.

Held on appeal:

(1) Where the appeal is based on alleged failure by the Tribunal to decide points raised, the parties should, pursuant to the EAT's decision in Bansi [2004] seek clarification from the Tribunal before incurring the cost and delay involved in an appeal.

(2) The Tribunal did not have to spell out and decide individually upon each matter of complaint raised; they had sufficiently dealt with the overall case put forward by the Appellant.

(3) The Tribunal's approach to affirmation was in error of law; however if they had not found affirmation, the pre-promotion conduct of the Respondent, in light of the findings of fact would not have made any difference.

(4) The Tribunal were entitled to reach the conclusion they did about the supposed "last straw" and the cause of the Appellant's resignation. Those conclusions were not reached in error of law and were not perverse.

Appeal dismissed.

HIS HONOUR JUDGE BURKE QC

The History

This is an appeal by Mrs Royle against the decision of the Employment Tribunal, sitting at Manchester and chaired by Mrs Feeney with Mrs Clark and Mr Williams as lay members, and sent to the parties with written reasons on 11 July 2005. By that decision, the Tribunal, after a hearing lasting 11 days between February and June 2005, rejected Mrs Royle's claim that she had been unfairly dismissed by her employers, the Greater Manchester Police Authority ("the Authority").

We heard the appeal on 31 March 2006 and, at the end of argument, reserved judgment. When, during the course of the compilation of this judgment, the decision of the Employment Appeal Tribunal ("EAT") in Bansi v Alpha Flight Services (EAT 0652/03, judgment 10 March 2004) came to our attention and appeared to have some relevance to the arguments we had heard, it became necessary to send to the parties copies of Bansi and to give them an opportunity to make further written submissions. Both Mr Oulton, counsel for Mrs Royle, and Mr Howard, counsel for the Authority, sent us further submissions, dated 23 June and 6 July 2006 respectively. For these reasons, this judgment has taken longer to produce than ordinarily it would have done.

Mrs Royle was employed by the Authority from December 1998, originally as a welfare officer; in September 2001 she was promoted to senior welfare officer. She resigned on 12 January 2004 on notice; her employment ended on 31 March 2004. She claimed that she had been constructively dismissed. She put forward a sequence of complaints about shortcomings on the part of the Authority, starting in 1999 and continuing up to a meeting on 5 January 2004. It was her case that, over the relevant period, there had been breaches of the implied term of trust and confidence and of the Authority's implied duty to take reasonable care for her health and safety which, individually and collectively, amounted to fundamental breaches of the contract of employment, that the meeting of 5 January 2004 itself constituted such a breach or was the "last straw" in a cumulative series of events which as a whole amounted to a fundamental breach, and that she resigned on 12 January 2004 as a result of such breach. It was the Authority's case that they were guilty of no such breach, that they had behaved reasonably throughout and that Mrs Royle did not resign because of any unreasonable conduct or breach of contract on their part.

The Notice of Appeal attacked most elements of the Tribunal's decision; however, at the preliminary hearing of this appeal before a division of the EAT presided over by Burton P on 5 December 2005, Mrs Royle was granted permission to proceed to a full hearing of her appeal on four grounds only, identified as grounds A, B, F and G in the Notice. Those four grounds are headed as follows:-

Ground A Failure to address all aspects of the Appellant's case;

Ground B Error of law with regard to course of conduct and affirmation;

Ground F Error of law in relation to findings on course of conduct/final straw; and

Ground G Errors of law in relation to findings on effective cause.

In order to understand the nature of those four grounds, it is of course necessary for us to set out the facts as found by the Tribunal in outline and to summarise the way in which the Tribunal reached their decision. In considering the merits of those grounds on an individual basis, it will be necessary for us to set out further factual details; but at this stage, a broad exposition of the relevant history will suffice.

When Mrs Royle joined the Authority, she became one of a team of four welfare officers who reported to the senior welfare officer, Mr Jones. Part of the team's duties involved de-briefing police officers after traumatic incidents and running an out of hours on-call scheme. From May 1999 the team was reduced in size to three, as a result of two departures; it increased to four in December 1999.

Mrs Royle and colleagues complained in 2000 of bullying on the part of Mr Jones. He was suspended in June 2000 and resigned in November 2000, before disciplinary proceedings were heard. In July 2000, Mrs Fenton, assistant personnel director, had a long meeting with the welfare team in which many issues were discussed. The Tribunal found that this was one of a series of meetings in which all issues of concern to the welfare team were addressed in detail. It was agreed that the on-call system would end; and individual sessions with an external counsellor were arranged for the team.

In late 2000, one of the team left; by the beginning of 2001 the team consisted of Mrs Royle, who was on part-time hours after a three month absence from work, and one full-time welfare officer, Mr Forti. In February 2001, Mr Forti also went off sick. Mrs Royle wrote to the Chief Constable to draw his attention to the fact that, in her absence, there was no welfare unit at all. No reply was received until 8 March. In the interim, Mrs Royle was called out following a serious incident, although she was on leave. The assistant chief constable apologised for this event; temporary workers were recruited; and Mrs Royle and her full-time colleague returned to full-time work in April 2001. Recruitment of a new senior welfare officer was put in hand. Mrs Royle successfully applied for that post and took up her management role in September 2001.

In January 2002, a Mr Morley was taken on by the Authority in a new role, of occupational health and welfare manager. The Tribunal found that Mrs Royle had formed a poor opinion of Mr Morley before he started in that role and that she had projected onto him responsibility for any change which she did not like.

In April 2002 Mr Morley appointed a Dr McQuire as external psychologist without checking his references. In the summer of 2003 Dr McQuire was investigated for unethical practice and was eventually reprimanded for inappropriate behaviour with female clients. He had to be replaced; Mrs Royle was upset with and lost confidence in Mr Morley. A number of other incidents in 2003 are referred to in the Tribunal's findings of fact; we do not need to set them out at this stage. However, late in 2003, an issue arose which, it is clear, became very significant to Mrs Royle. As the Tribunal found, it was important to those who used the welfare unit that their consultations with the unit should be confidential and that information derived therefrom should not be released unless there was a danger to the user or others. In September 2003 the Authority learnt that a reporter had secretly filmed police officers making racist remarks; he achieved this by becoming a police officer; and in order to become a police officer he gave false information as to his eyesight on his application form and in a pre-employment screening questionnaire. It was proposed by the Authority and the Crown Prosecution Service ("CPS") that the reporter should be prosecuted for obtaining by deception; the CPS wanted the original of the questionnaire; the doctors in the occupational health unit were advised not to disclose it. Although a court order could have been obtained, Mr Marston, the Authority's personnel director, wanted to act co-operatively and, therefore, to disclose the document; he eventually decided, after he and Miss Cornwell (who had succeeded Mrs Fenton) had taken advice and discussed the issue, that the document could be disclosed under the Data Protection Act, such disclosure being in connection with the investigation of crime. Mr Marston therefore directed Mr Morley to obtain the document; that was done; and it was, no doubt, then disclosed.

The Tribunal found that these events generated much gossip; one of the rumours which arose was that Mr Sweeney, an assistant chief constable, had marched into occupational health and said that he could go into anyone's records whenever he wanted. Mrs Royle, the Tribunal said, produced no evidence to suggest that that was true; they found that Mr Sweeney had not said that but that Mrs Royle believed that he had.

Mrs Royle's evidence was that, in November 2003, a colleague reported to her that the files of a client of the unit, who was at that time suing the Authority, had gone missing. Mrs Royle believed that Mr Morley had taken them. She did not complain at the time but became depressed and consulted one of the Authority's doctors. She discussed the issue with Miss Cornwell, who suggested that there should be a meeting with Mr Morley on his return from a secondment; but Mrs Royle was not satisfied and reported to the Police Welfare Officers Association National Executive that Mr Morley had disclosed the reporter's questionnaire; Mr Morley was, as a result of this complaint, temporarily suspended.

Early in December there was a meeting between Mr Sweeney, Miss Cornwell and the relevant doctors; the welfare unit was hoping for reassurance that a breach of confidentiality (as the unit saw what had occurred) would not happen again. Mrs Royle believed that the issue was not resolved at that meeting; the Tribunal found that it was resolved at that meeting, subject to a hiccup which was resolved in the following month; but in December Mrs Royle reported the confidentiality matter to the police federation and took it up with the chief constable. Meanwhile, Mrs Royle decided that she was too ill to continue in her work, cleared her desk of her personal belongings and went home. She was signed off work with stress and depression. However, she spoke to Miss Cornwell about her problems; she complained about the confidentiality issue, the Doctor McQuire episode, that she had not been receiving supervision whilst Mr Morley was on secondment and that Mr Morley had removed parts of the welfare file. As a result a meeting was arranged with Mr Marston and Miss Cornwell on 5 January 2004.

The Tribunal found that the meeting was "certainly a difficult meeting" in which, rather than developing a discussion, Mr Marston put the Authority's case as to why their actions (in the case of the reporter) had been legitimate. The other complaints were raised and responded to. In response to Mrs Royle's complaints about shortness of staff and levels of stress, Mr Marston said that he could not keep finding additional staff and that ways had to be found to manage the workload. Mrs Royle said nothing had been done although she had raised the issue. Mr Marston asked Mrs Royle what she could suggest and Mrs Royle said she did not know. Mr Marston said that it was perhaps unreasonable to expect senior management to take some action if the senior welfare officer could not identify what would help.

At this point, Mrs Royle broke down. After a break, the Tribunal found, she was unable to cope "with this type of meeting". What happened next can best be set out by quoting paragraphs 49 and 62 of the Tribunal's judgment:-

"49. She then indicated that she wanted to submit her resignation. Mr Marston asked her to think about it. Ann Marie Cornwell then wrote to her on 9^th January to confirm the outcome of the meeting. The claimant did resign by letter of 12^th January saying she had no trust and confidence in the Force's management of the issue of confidentiality, the issues of workload or in the conduct of her manager who she had considered had fundamentally breached PWOA guidelines and breached the essential element of trust between the unit and employees who use the unit. She said in the letter that Mr Morley as well as Mr Marston had said that they would take the same action again without reference to any submissions, and she also stated that she believed that on Mr Marston's instructions Mr Morley had been looking to access records for another client who had lodged a complaint against the Force in the courts. She also mentioned the Dr McQuire situation and said that the January meeting was the final straw because they had not accepted any wrongdoing or recognised the importance of the issue of confidentiality. She stated that Mr Marston said that he had the right to take private medical information and remove it without the consent of the person it refers to. She did not share the view that he had the right to take this action.

62. The claimant was appointed as Senior Welfare Officer in September 2001. The Tribunal finds that by applying and accepting this appointment the claimant was affirming any previous fundamental breach of contract that occurred from when the problem started with Keith Jones up to this point. In particular we refer to statements made on the claimant's application form and her confirmation that the stress she has suffered was connected with Mr Jones and was not some generalised response to the nature of the work. The claimant was making a positive statement in taking up this job and what she put on her application form that this was all now behind her. In addition she did not think that the same set of circumstances would re-occur leading to absence through stress again. In addition we find that the respondents were entitled to believe this and not to assume that for the future the claimant had any particular vulnerability over and above the norm."

The Tribunal's decision

It is wholly clear that Mrs Royle put before the Tribunal many complaints about and criticisms of the Authority's treatment of the welfare unit and of herself, from 1999 through to 2004. The complaints were put under the general heads which we have already described, breach of the implied term of trust and confidence and of the implied duty of care. At paragraph 4 of their judgment, the Tribunal identified the issues which they had to resolve as follows:-

"4. The claimant submitted that the respondents were in fundamental breach of their implied duties of trust and confidence and to safeguard health and safety. In respect of trust and confidence she relied on various matters relating to disclosure of client medical information and in relation to health and safety an ongoing lack of management support, understaffing and overwork dating back to the beginning of her employment. She argued there was a continuing course of conduct with a meeting on 5 January 3004 being the last straw."

Having set out their findings of fact in considerable detail at paragraphs 6 to 52, the Tribunal then summarised the nature of Mrs Royle's case at paragraph 53 as follows:-

"53. The claimant argued there was a series of incidents constituting a fundamental breach of contract culminating in the meeting of 5 January which was the final straw. The incidents were:

(1) Health and Safety

1.1 Bullying from Keith Jones

1.2 Understaffing following Keith Jones's suspension

1.3 Overwork and under staffing that occurred from time to time following the claimant's appointment as Senior Welfare Officer until her resignation.

(2) Breach of confidentiality in respect of

2.1 "the Daly" incident

2.2 Damien Morley removing notes from files

(3) Appointment of a psychologist without taking up references

(4) Lack of case work supervision during Damien Morley's absence on secondment"

At paragraphs 54 to 61 the Tribunal set out relevant law; we return, as necessary, to their statement of the relevant law later. They then proceeded to set out their conclusions at paragraphs 62 to 80. They dealt first with the alleged breaches of the duty of care; dividing their conclusions on that issue into three sections, (i) the period up to Mrs Royle's promotion in September 2001 (paragraphs 62 to 64), (ii) September 2000 to January 2003 (paragraph 65) and (iii) January 2003 to January 2004 (paragraphs 66 to 68). They then turned to the trust and confidence issues, dealing separately with supervision (paragraph 69), Dr McQuire (paragraph 70) and confidentiality (paragraphs 71 to 75).

At paragraphs 76 to 77 the Tribunal, having found that the matters of complaint did not individually constitute a fundamental breach of contract, turned to consider whether the Authority's course of conduct as a whole, with the meeting of 5 January as the last straw, amounted to such a fundamental breach, as was Mrs Royle's alternative case. They concluded as follows in paragraphs 77:-

"77. We find they were not on the following grounds:

(i) We find there is plenty of evidence of actions taken in support of the claimant and her team, meetings to discuss stress and workloads, the agreement to reduce her working hours.

(ii) We find she did not communicate any distress to the respondents in a way to alert them to her problem and therefore the respondent cannot be accused of deliberately ignoring her.

(iii) We find no substance in her confidentiality related fears.

(iv) There was no "incessant dripping of the tap". The meeting of 5^th January was a difficult one in view of Mr Marston's robust attitude and we criticise him for that, particularly in the circumstances where he should have been sensitive to the fact that the claimant was feeling genuinely low. We do not commend his approach to the meeting although the purpose of Mrs Cornwell in setting up the meeting was wholly proper. We do not find that it was a last straw as there was no continuing conduct for it to be a last straw. Further, the claimant never argued at the time that the tenor of the meeting was unacceptable only that the respondent's failure to recognise the seriousness of the disclosure of the PEMQ was displayed at that meeting and she found that unacceptable."

Finally, at paragraphs 78 to 79 the Tribunal addressed the question of whether the course of conduct complained of was an effective cause of her resignation. They found that it was not. They said:-

"78. The respondent submitted the claimant intended to leave when she cleared her desk on 22^nd December as she indicated she would not be coming back and that she had already formed the intention of setting up a private business and she was leaving to promote this, there was evidence that she had already booked clients in. We do not accept it was the claimant's fully fledged intention at that time to permanently leave full time her reduced hours employment with the respondent. The effective cause of the claimant's resignation was her belief that the respondents were cavalier about the disclosure of the PMQ and would do the same again: Damien Morley was removing notes from files: ACC Sweeney intended to ride roughshod over the department, the combination of these beliefs, we find unfounded beliefs, led to her resignation. We have already dealt with whether they justified her resignation in terms of constructive dismissal.

79. We do find on the basis of the December email and her request to tender for the respondents services that she was intending to leave permanently, in the fairly near future the respondent's employment and that she was using her reduction in hours in order to see private clients in order to build up a practice sufficiently to enable her leave [to] permanently."

Paragraph 80 is headed "Summary". It says:-

"80. As we have found the specific incidents cited were not breaches of the implied term of trust and confidence or the implied terms to safeguard the employee's health and safety nor that there was continuing conduct amounting to a breach of the implied term of trust and confidence, the claimant's claim of constructive dismissal fails and is dismissed."

The Grounds of Appeal

We have already identified the four grounds of appeal. It is tempting to consider first ground (G), which asserts that the Tribunal were guilty of errors of law in reaching their conclusions as to effective cause, which are set out at paragraphs 78 to 79; for, as it seems to us, and as Mr Oulton accepted, if that ground of appeal fails, then this appeal must fail whether or not grounds (A), (B) and (F) succeed. The same could be said of (F), which attacks the Tribunal's finding that the meeting of 5 January 2004 was not a last straw. However, because we have heard full argument on all grounds and lest this appeal goes further, we have felt it right to set out our conclusions on all the grounds put before us; and we propose, therefore, to address them in alphabetical and chronological order.

Ground A

There are four aspects of Mrs Royle's case with which, it is argued, the Tribunal failed to deal in their judgment. They are, as summarised in Mr Oulton's skeleton argument:-

"(a) Failure to provide clinical supervision;

(b) Failure to carry out risk assessments;

(c) [Mrs Royle's] Complaint to Chief Constable…

(d) Bullying by Keith Jones."

The allegations relate to the period of Mrs Royle's employment which preceded her promotion in September 2001. In paragraph 62 of their judgment, the Tribunal held that Mrs Royle's acceptance of promotion and what she said or wrote that time amounted to an affirmation; and in paragraph 76 of their judgment, the Tribunal declined, in considering the Authority's conduct as a whole, to include within that consideration matters arising prior to the promotion, for that reason. The question whether that was correct in law is raised by Ground B; Mr Oulton wished to pursue Ground A because of the Tribunal's finding that there was no fundamental breach of contract prior to the promotion and, no doubt, because, if he succeeds on Ground B, the events prior to the promotion might be of significance to the consideration of course of conduct as a whole. If the Tribunal's view of the effect of affirmation turns out not to have been in error of law, however, it is difficult to see how success on Ground A can improve Mrs Royle's position.

It is necessary to say a few words about the proper approach of the Tribunal to a case, as this case was, in which a Claimant makes a large number of complaints about numerous different aspects of her treatment during a substantial period of employment as supporting her constructive dismissal claim. Mr Oulton submitted, that in such a case, it is the duty of the Tribunal expressly to address each aspect of the Claimant's case, or at least each complaint which he makes, and to make findings of fact on each and to state whether, in the case of each, there was a fundamental breach of contract and, in considering whether the course of conduct as a whole amounted to a fundamental breach of contract, to take each such aspect expressly into account. He referred us to the judgment of the EAT in Omilaju v London Borough of Waltham Forest (EAT/0941/03 judgment 31 March 2004) in which, at paragraph 14, the following proposition is set out:-

"14. The case law indicates that the function of the Employment Tribunal when faced with a series of actions by the employer is to look at all the matters and assess whether cumulatively there has been a fundamental breach of contract by the employer. We are unable to find in the judgment of this Employment Tribunal the answer to that question."

We agree that that proposition is not affected by the subsequent decision of the Court of Appeal in Omilaju [2005] IRLR 35. However, it should be borne in mind, firstly, that the Tribunal's task, as there set out, only applies to relevant matters, i.e. matters as to which the Tribunal regards the complaint as having substance and as invoking conduct on the part of the employers which may contribute to the fundamental breach of contract and, secondly, that that proposition does not require the Tribunal to identify each item of complaint in their judgment and to state expressly in their judgment in the case of each item whether it did contribute to a fundamental breach of contract. The duty of the Tribunal is to look at all matters cumulatively.

In Thames Valley Police v Kellaway [2000] IRLR 170, a discrimination case in which there were several items of complaint, the EAT at paragraph 48 of its judgment said this:-

"48 We consider that Mr Korn has subjected the decision to an overly forensic examination. We do not criticise the approach of the tribunal in this matter which, given the length of their decision, was factually complex and investigated in detail. The chairman was right to reserve the decision to allow the tribunal members, who clearly held differing opinions, to express their views by reference to the arguments and evidence presented before them. Whilst we would not condone a tribunal decision which does not set out the relevant legal position and does not make findings of fact on all the principal submissions made, this does not amount to an automatic ground of appeal. It has to be shown that omitting to set out the legal principles or key submissions made has led to a consequent error of law or incorrect finding of fact. We are unable to intervene in the majority's findings, which, although lengthy, set out their grounds for finding discrimination in sufficient detail to allow both parties to understand the reasoning behind their finding of discrimination."

We were also referred to Roberts v Skelmersdale College [2004] IRLR 69, in which Mummery LJ - with whose judgment Parker and Scott Baker LJJ agreed - said at paragraph 17:-

"17 The fourth and final matter I would not is the requirement that the employment tribunal must give written reasons for its decision under rule 10. Whether the reasons its gives are adequate in any particular case must depend on the circumstances of that case, bearing in mind that the duty on the tribunal to provide a written, reasoned decision is so the parties may know why they have won or lost the case. It should also be noted in this context that reasons are not defective simply because they fail to mention, or to deal with, every point that has arisen during the course of the proceedings or in the course of the hearing.

and to Derby Specialist Fabrications Ltd v Burton [2001] IRLR 69, in which the employee's constructive dismissal claim, based on an accumulation of events over a substantial period of time succeeded before the Tribunal; in dismissing the employer's appeal, the EAT, presided over by Keene J, said at paragraph 20:-

"20. In a case where the repudiation of the contract consists of an accumulation of events over a period of time, it would be wrong to seek to isolate individual incidents."

In our judgment it is not the obligation of the Tribunal in a case such as this to go through each and every complaint and make express findings about each; the Tribunal's duty is to take into account all matters of substance which could be said to have contributed to a fundamental breach of contract and to set out, in compliance with decisions such as Meek v City of Birmingham District Council [1987] IRLR 250, and rule 30(6) of Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, why, looking at those matters cumulatively, it concluded that there was or was not a fundamental breach of contract on the part of the employer. The absence of express findings of fact or conclusions on one or more specific areas of complaint put forward by the Claimant does not amount to an automatic ground of appeal. A losing Claimant must, if he is to succeed on appeal, show that that absence has given rise to an error of law or an unsustainable factual conclusion.

We consider next the effect of the EAT's decision in Bansi, to which we referred in paragraph 2 above. In that case, the Claimant claimed disability discrimination and unfair dismissal; the dismissal was by reason of redundancy. It was the Claimant's case that the pool for selection for redundancy had been unfairly limited, that the selection criteria were unreasonable or were unreasonably applied, that the employers had failed to consider, in applying the criteria, the reason for the Claimant's poor attendance record and that there had been inadequate consultation with the Claimant's trade union. The Claimant lost and appealed only against the Tribunal's conclusions as to unfair dismissal. Much of the thrust of her appeal was that there had been an insufficiency of reasoning and of findings of fact to deal with the arguments put before the Tribunal on the Claimant's behalf. The EAT, presided over by HHJ Serota QC, at paragraphs 21 to 23 set out clear principles as to how such insufficiency in a Tribunal's decision should be approached, in these terms:-

"21 In English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 the Court of Appeal gave guidance as to the circumstances in which a Judge might be invited to amplify his reasons and findings where these are considered to be insufficient. The EAT has adopted the approach recommended by the Court of Appeal on a number of occasions and remitted cases to the ET for amplification of reasons at an early stage in the appeal process; see Adebowale v Peninsula Business Services (EAT/1135/02/DA) in which the President said that the Court of Appeal had

"expressly encouraged Courts considering whether an appeal should proceed on grounds of alleged failure to make findings, or alleged absence of reasons, to consider referring the case back to the lower Court for clarification".

We need not, therefore set out the dicta in English v Emery Reimbold & Strick.

22 In Be T (a child: contact) 2003 1 FLR 303 ( a care case) the Court of Appeal took the question of seeking clarification from a first instance Judge a stage further. Arden LJ, having considered English v Emery Reimbold & Strick Ltd went on to say that the principle applied to appeals in care cases as well as to other appeals. She said at p.320

"In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not, as a matter of courtesy at least, to draw the judge's attention to any material omission of which he is then aware or then believes exists. It is well-established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective (CPR 1.3, which does not as such apply to these proceedings); and in some cases, it may follow from the advocate's duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge's attention when there was a ready opportunity so to do. Unnecessary costs and delay may result. I should make it clear that there are general observations for assistance in future cases, and that I make no criticisms of counsel in this case".

In our opinion it is certainly good practice where parties are legally represented in Employment Tribunals, for advocates to ask the Tribunal to amplify its reasoning where it is considered that there has been a material omission in its findings of fact or in its consideration of the issues of fact and law before it. Where reasons are given extempore the application should be made at the time. If reasons are given in writing the request should be made as soon as possible after the reasons are received. We would encourage advocates to seek clarification from the ET promptly in any case where there might otherwise be an appeal based on alleged insufficiency of reasons. It is much easier for Tribunals to deal with requests for clarification when they are fresh in their minds and the amplification of insufficient reasons and finding will save the parties time and expense and may in some cases obviate the need for an appeal and subsequent remission of the case.

23 The approach we have set out above is wholly consistent with the overriding objective and the principles that should govern appeals before the EAT."

We respectfully agree with the principles and guidance set out in paragraph 22 in Bansi.

In his further submissions in response to our drawing of the parties' attention to Bansi, Mr Oulton makes the point that the other three grounds of his appeal are unaffected by Bansi and that, therefore, this appeal would have had to have been heard had there been compliance with the Bansi principles; that is, of course, correct; but we would point out that if there had been such compliance, we would have had the benefit of further findings or at least clarification from the Tribunal. Mr Oulton also reminded us of the power in the EAT to seek from the Tribunal clarification or amplification of the Tribunal's judgment, pursuant to the procedure approved by the Court of Appeal in Barke v Seetec [2005] ICR 1373.

Mr Howard, in his further submissions, submits that, if it were Mrs Royle's case that important findings were absent from the Tribunal's judgment – which Mr Howard does not accept – Mrs Royle ought to have brought this to the attention of the Tribunal, pursuant to Bansi. He does not suggest, however, that the failure to do so should have the consequence of its own, that Ground A must fail; he submits that the Tribunal should now be invited by the EAT, if the judgment is defective, to amplify their judgment.

There may come a time, after the principle set out in Bansi has become more widely known – for we believe that, because Bansi has not as far as we are aware been reported, it is not widely known at present – that the EAT will have to consider whether, in the interests and pursuance of the overriding objective, where on appeal it is sought to be argued on behalf of the Appellant that the Tribunal has omitted to make an important finding of fact or to deal with an important point aspect of the Appellant's case, it should decline to hear such an argument if the principles set out in Bansi have not been followed; but we have not been asked to and do not propose to adopt that approach in this case. We would not in any event think it right to do so without having heard full oral argument. We would point out, however, that it is plainly more consistent with the overriding objective that the Bansi principles be followed than that they should not be followed and that the EAT should be left to consider, pursuant to Barke, seeking any clarification from the Tribunal after the expense and time involved in an appeal have been incurred. It is much to be preferred that a party who believes that an important point has not been dealt with by the Tribunal should seek clarification from the Tribunal before the expense and delay involved in an appeal arise.

These points have greater resonance in this case in which the complaints which it is now said that the Tribunal failed to address were not expressly identified in the Claimant's originating application ("ET1"), save for a general reference to lack of adequate input and supervision. No attempt was made to amend the ET1 to add these specific allegations, which were formally set out for the first time in Mr Oulton's written closing submissions. Mr Howard did not object to their inclusion as part of the Claimant's case and accepted that they have been raised by Mr Oulton in cross-examination; but the task of a Tribunal is not facilitated by the introduction of complaints in that way. The Tribunal was not in this case asked, nor did it seek to identify a list of complaints before the start of the hearing, as it would undoubtedly have done in a discrimination case involving a lengthy history, had that step not been taken at an earlier interlocutory stage. With hindsight, it would have been better had such a step been taken in the present case.

In the circumstances which we have described, it would, in our judgment, be wrong to expect the Tribunal meticulously to examine and set out findings of fact in their judgment in respect of each complaint; the need to avoid an overly forensic examination of the Tribunal's judgment and to consider the judgment as a whole is heightened.

We now turn to the four aspects of Mrs Royle's case which are said to have been missed by the Tribunal.

Clinical supervision

Mr Oulton submitted that Mrs Royle's job admittedly included the counselling of police officers involved in traumatic incidents and that those who provide such counselling are, pursuant to the code of the British Association for Counselling, to have clinical supervision from another counsellor; it was part of Mrs Royle's case, put forward in Mr Oulton's closing submissions (but not, as he accepted, put forward in the ET1) that there should have been such supervision. In the period to September 2001 no such supervision had been provided; but the Tribunal made no reference to this part of Mrs Royle's case when they set, at paragraph 53 of their judgment, the incidents, which, on Mrs Royle's case, were said to have constituted fundamental breach of contract or in the paragraphs which follow, 62 to 67, in which they consider whether there had been a fundamental breach of the implied duty of care.

However, in our judgment, it can be seen that the Tribunal did have this part of Mrs Royle's case in mind and made express findings about this aspect of her supervision (as opposed to day-to-day supervision by those more senior to her). At paragraph 9 the Tribunal found as fact that Mrs Royle, up to July 2000, was using her own clinical supervisor and that Mrs Fenton agreed that clinical supervision would be put in place by the authority. At paragraph 10 the Tribunal found that sessions with an external counsellor were arranged for the welfare team. Over the following paragraphs a series of steps are found to have been taken in respect of the team, including the procurement of clinical supervision. The Tribunal found as fact that all the issues of concern to the welfare team were addressed in detail.

In the light of these findings of fact, it is not surprising that the Tribunal did not treat the complaint of a lack of clinical supervision up to September 2001 as a specific item to be potentially regarded as part of the accumulation of items amounting to a fundamental breach of contract. The Tribunal were not, in our judgment, obliged in paragraphs 62 to 67 to set out and to address conclusions individually in respect of each of the large number of items of complaint. They were entitled, if, as they did, they had found on the facts that there was nothing in a particular item of complaint, to address that item no further; when the Tribunal's findings of fact are examined it can be seen that that is the course taken by the Tribunal in respect of this item of complaint.

Risk assessments

The complaint that the authority carried out no risk assessments as to mental health was not made in the ET1. Mr Oulton told us that he cross-examined the Respondent's witnesses as to it; in his closing written submissions he highlighted that Mr Morley, who did not take up his position until January 2002, had conceded that no such assessments were carried out thereafter and that Mr Marston could not recall whether any such assessments were carried out before; but he accepted that Mrs Royle had given no evidence as to this complaint and that it was not her case that she or any other member of the welfare team had ever raised any such complaint. He submitted that it was the duty of the Authority to carry out such assessments whether the welfare team raised the issue or not and that the Tribunal had failed to address his argument that there had been a failure to comply with that duty.

Mr Howard submitted that the Tribunal could be seen to have addressed this complaint in their general findings as to the regular meetings between Mrs Fenton and the team at which any issue could be raised (paragraph 14); and the Tribunal found (paragraph 63) that until the team's strength was reduced by the departures in December 2000, "the Respondents had through Mrs Fenton provided admirable support for the unit in the absence of Mr Jones". The Tribunal found that, in December 2002, Mrs Royle with her team carried out a survey of levels of stress and overwork which, the Tribunal found, did not show that there were excessive levels of stress (paragraph 25) and did not constitute "definitive evidence of the Claimant's stress and overwork" (paragraph 66 vi); there was an internal audit of the unit in January 2003 which was positive and demonstrated that the team was coping (paragraph 27). Mr Howard made the further point that, from her promotion, the carrying out of any further risk assessments which she regarded as necessary, was Mrs Royle's duty, which point is supported by the fact that the survey to which we have referred was carried out on Mrs Royle's initiative.

It was not, in our judgment, essential for the Tribunal to deal expressly with the absence of formal risk assessments; the Tribunal made findings as to the steps taken to meet the team's concerns, and as to a specific survey and audit which, when carried out, did not reveal any risk to Mrs Royle's mental health. They can be seen to have had the issue of such risk well in mind. Had Mrs Royle raised any complaints about the lack of formal risk assessments and provided evidence that such assessments, if made, would or should have revealed any real risk to her mental health, it could with force be argued that the Tribunal ought to have specifically dealt with these matters; but on the basis of the evidence and arguments before the Tribunal and in light of our earlier general views as to the duty of a Tribunal in a case such as this, we do not regard the absence of any more specific reference to this point as amounting to an error of law.

The complaint to the Chief Constable

We have described earlier how, in February 2001, Mrs Royle wrote a letter of complaint to the Chief Constable; it was sent after a meeting at the end of January between Mrs Royle and Mr Forti on the one hand and Mr Marston and a Chief Inspector on the other had not sufficiently resolved the team's concerns about understaffing. See the Tribunal's findings at paragraphs 14 and 15. Mr Oulton's criticism of the Tribunal in this area is that specific complaints which she raised in the letter were not addressed by the Tribunal who also failed to address Mrs Royle's point that the letter to the Chief Constable was diverted from him and then ignored.

It is correct that the Tribunal did not individually address the complaints set out at paragraph 7.4 (d)(i-v) of the Notice of Appeal or the complaint as to the manner in which Mrs Royle's letter was dealt with in their Conclusions section. However, the Tribunal found at paragraph 13 that the main concern at the relevant time was understaffing. They addressed the understaffing issue specifically at paragraph 63 and found that it existed for only a short period and did not amount to a fundamental breach of contract. In addition, the Tribunal found at paragraph 64 that support was given to the unit and to Mrs Royle throughout the period up to her promotion in September 2001.

The individual complaints referred to in the Notice of Appeal to a substantial extent properly fell within the area of understaffing. Mrs Royle's general case was that, because of understaffing, excessive pressure was put on her. That general case was, in our judgment, adequately addressed by the Tribunal in the passages to which we have referred; we do not regard it as having been necessary for the Tribunal to go slavishly through each item in the letter to the Chief Constable. It was permissible for them to approach the matter as a whole as, in our judgment, they plainly did. As to the failure to provide counselling for Mr Forti we do not see how that could amount to a breach of Mrs Royle's contract or an element in a cumulative breach of her contract. As to what happened to the letter, the Tribunal set out detailed findings of fact in paragraph 16 as to what occurred. The diversion of the letter away from the Chief Constable could not, in our judgment, have ever have amounted to a legitimate matter of complaint; and the Tribunal clearly had the delay in response in mind in looking at the picture overall. We conclude that the absence in the Tribunal's judgment of a more detailed consideration of the complaints in or the handling of the letter to the Chief Constable does not amount to an error of law.

Bullying by Mr Jones

Mr Oulton drew our attention to the fact that bullying by Mr Jones was included in the list of incidents put forward as constituting a breach of contract at paragraph 53 of the Tribunal's judgment; yet, he submitted, in the Tribunal's conclusions as to alleged breaches of the implied duty of care at paragraphs 62 to 64 this part of Mrs Royle's case is not addressed. He accepted that bullying by Mr Jones had not been mentioned in the ET1; but it had, he said, been referred to in the course of the evidence; that is how it came to be listed in paragraph 53; it was not, he submitted, a part of Mrs Royle's case which could properly have been omitted.

Mr Oulton conceded that it had not been part of Mrs Royle's case that the Authority had failed to react appropriately to complaints about Mr Jones's conduct; what the Tribunal had failed to deal with was that bullying itself as a breach or as part of a course of conduct cumulatively amounting to a breach of the implied term. Mr Howard submitted that the basis of the complaint as put before the Tribunal was not the conduct of Mr Jones in itself but its consequences or effects in terms of stress upon Mrs Royle. There was, he told us, no evidence put before the Tribunal as to what Mr Jones actually did or was alleged to have done to Mrs Royle or anybody else; the acts themselves were not described in the evidence before the Tribunal at all; there had been an allegation of bullying to which the Authority responded by suspending Mr Jones and instituting disciplinary proceedings; that was why the Tribunal had not considered whether the bullying of itself was, or contributed to, a breach of contract. What the Tribunal did, however, specifically address, Mr Howard submitted, was the effect of the problem with Mr Jones and other stressors in the period up to Mrs Royle's promotion in their findings at paragraphs 62 to 64.

Mr Oulton did not, in reply, suggest that Mr Howard's account of the way in which the case was put before the Tribunal was inaccurate or that there had been any evidence as to the acts of Mr Jones towards Mrs Royle or anyone else or beyond the fact that there had been bullying. Mr Howard's account is confirmed by Mr Oulton's written closing submissions which focused on the stress caused to Mrs Royle; and we accept it as correct.

We have already summarised the facts found by the Tribunal at paragraph 9 onwards. When Mr Jones was suspended the Tribunal found that Mrs Fenton took the steps described in that paragraph; there was considerable supervision; a week's special leave was granted; all the issues of concern were addressed in detail; external counselling was arranged; and a series of meetings followed. There was no suggestion that Mrs Royle was off work as a result of stress until September 2000; Mr Jones was suspended in June. In paragraph 62 of the judgment, the Tribunal expressly referred to Mrs Royle's complaint of stress connected with Mr Jones. In paragraph 63 they referred to what had been done by the Authority to support the welfare team; they were referring to the findings of fact which we have just set out; they concluded that there was no fundamental breach of the implied term in the period up to Mrs Royle's promotion and plainly thought that the Authority had acted reasonably.

In our judgment, that was a sufficient discharge of their duty in respect of that period. It was not necessary for the Tribunal to go through each stress factor complained of, for the reasons we have earlier set out. The Tribunal were entitled, having found the facts in considerable detail, to express their conclusions about this period in broad terms. There is no complaint that their conclusion was not one which they were entitled to reach; Mrs Royle's point is that the Tribunal did not address the bullying complaint at all. In our judgment, when the way in which the matter was put before the Tribunal is properly identified it can be seen that the Tribunal did consider that matter and reach factual conclusions as to it as part of their general conclusions relating to the period up to Mrs Royle's promotion.

Accordingly we do not regard it as necessary to take the course permitted by Barke of seeking further clarification on these matters from the Tribunal. Ground A of this appeal does not succeed.

Ground B

In September 2001, Mrs Royle applied for promotion to the post of senior welfare officer; she was offered that post on 7 September and accepted it. At paragraph 18 of their judgment, the Tribunal quoted from her application as follows:-

"Before starting my present employment I had an excellent attendance record. Unfortunately, through no fault of my own, I have had to take time off due to work-related stress in the last 12 months. This is an entirely unusual situation and I trust this will not impinge on my prospects. I am in good health and since external work factors have been addressed I have regained my full attendance."

At paragraph 62, the Tribunal said that, in taking part up that post, Mrs Royle was making a positive statement that what had happened in the past in the course of her employment "was all now behind her". It was common ground that she had at the time of her promotion used a similar expression. The Tribunal found that Mrs Royle did not think that the same set of circumstances, leading to absence through stress, would occur again.

On the basis of these facts, the Tribunal found, again at paragraph 62, that:-

"By applying and accepting this appointment the claimant was affirming any previous fundamental breach of contract that occurred from when the problem started with Keith Jones up to this point."

When, at paragraph 76, the Tribunal considered the complaints upon which Mrs Royle relied as a whole, the Tribunal said:-

"The Tribunal have looked at all the matters the Claimant is citing save prior to her promotion which we have found an affirmation."

There can be no doubt that the Tribunal treated the affirmation on the part of Mrs Royle which they had set out in paragraph 62 as having the effect that whatever had occurred prior to her promotion was not to be taken into account when the Tribunal looked to see whether cumulatively the actions of the Authority amounted to a fundamental breach of contract.

Mr Oulton accepted that, had Mrs Royle resigned shortly after her promotion and without the occurrence of any further matters of complaint, any claim then made that she had been constructively dismissed would have faced great difficulties; that is, of course, because such a claim would have been met with a strong defence based on affirmation or waiver or the argument that she had not immediately resigned in consequence of the breaches relied upon – which would have come to the same thing. His criticism of the Tribunal's decision was, however, not that they were not entitled to treat Mrs Royle's conduct at the time of her promotion as amounting to an affirmation or waiver but that the Tribunal should not, in law, have treated such an affirmation or waiver as having the effect, whatever happened subsequently, of eliminating pre-promotion events from consideration as part of the accumulation of events leading up to Mrs Royle's resignation more than two years later. Mr Oulton further submitted that it had not been part of the Authority's case that there was any such affirmation or waiver which could have that effect.

Mr Howard shared Mr Oulton's difficulties in recollecting what he (Mr Howard) had said in his oral closing submissions on the topic of affirmation or waiver; he accepted that he did not raise the issue in his written closing submissions; but he candidly and professionally conceded that he had probably gone no further than to rely upon Mrs Royle's conduct in accepting promotion and in saying what she said at the time as having evidential significance, i.e. as indicating that what had happened prior to her promotion was not seen by her as serious and was only background to her subsequent complaints. He submitted, however, that the Tribunal were entitled, whether or not he had so argued, to treat what they found to have occurred as an unconditional waiver which was such that the preceding events were incapable of being revived.

He further submitted that, in any event, the Tribunal's findings of fact and conclusions as to the pre-promotion period, to which we have referred extensively earlier in this judgment, were such that the events of that period, if considered as part of the overall or cumulative series of events, could not have made any difference to the eventual outcome.

There is no dispute between the parties as to the principles of law which apply; and therefore we need not go through the relevant authorities in detail. In Barke, once the Court of Appeal had upheld the EAT's request to the Tribunal for answers to specific questions as to the Tribunal's conclusions and reasons, the EAT heard Mrs Barke's appeal which involved detailed argument upon the leading Court of Appeal authorities as to constructive dismissal, Lewis v Motorworld Garages Ltd [1986] ICR 157, Omilaju (see above) and Meikle v Nottinghamshire County Council [2005] ICR 1. From those authorities, the EAT, in its judgment in Barke (EAT 0917/04 delivered 13 January 2006), derived the following principles, set out at paragraph 26:

"26.

1) where in a constructive dismissal case a course of conduct culminating in a last straw on the part of the employers is relied upon as amounting to a fundamental breach by the employer of the implied term of trust and confidence, the Tribunal must consider whether the course of conduct cumulatively amounts to such a breach; it is not necessary for each individual incident which makes up the course of conduct or the last straw to be of itself a breach of conduct. (Lewis, Meikle). The question is – does the cumulative series of acts or omissions taken together (our emphasis) amount to a breach of the implied term;

2) the conduct which is said to constitute the last straw need not be unreasonable or blameworthy; but it must contribute something to the breach of the implied term, although what it adds may be relatively insignificant; but it will not be sufficient if the last straw is an entirely innocuous act. (Omilaju);

3) the employee must leave in response to the repudiation; but it is enough that the employee resigns at least in part in response to the repudiation; the repudiation does not have to be the effective cause of the resignation. (Meikle);

4) the test as to repudiatory conduct is objective. (Lewis, Meikle, Omilaju)."

Those principles apply equally in the present case. Affirmation or waiver was not an issue in Barke; but in most cases in which a course of conduct said to amount cumulatively to a fundamental breach of contract is relied upon, there are likely to have been periods in which no conduct of which complaint is made is occurring; yet the fact that the employee did not leave in response to previous conduct is not normally taken as debarring the employee from relying on that conduct, when subsequently there is further conduct on which he relies, as contributing to the accumulation of conduct which the Tribunal should consider in deciding whether there has been a fundamental breach of contract. Were this not the case, the principle set out at paragraph 1) in the extract from Barke which we have set out above could only apply in cases where the employee was relying on continuing conduct as opposed to conduct occurring from time to time. The cumulative breach and "last straw" doctrines would have only very limited applications.

In Hamill v JV Strong (EAT 1178/99, judgment 1 December 2000) the employers appealed to the EAT, presided over by HHJ Altman, against the Tribunal's majority decision that the employee had been constructively and unfairly dismissed. The Tribunal found that, in 1997/8, the employee had been treated in a highly offensive manner by other employees and that his complaints to the employers were not properly dealt with. Shortly afterwards, the employee voluntarily transferred to another site; at first after that transfer there were no problems; but further conduct of which complaint was made then began, culminating in a final episode in February 1999 which the Tribunal found to be the last straw which led the employee to resign.

The minority view in the Tribunal was that, by continuing to work and then moving voluntarily to a different site, the employee had waived reliance on any previous conduct. On appeal, it was submitted that that view was correct. The EAT held that it was open to the majority to conclude that there had been no such waiver.

At paragraphs 12 to 16 of its judgment, the EAT said:-

"12. We turn to the question of waiver. The majority found that there was no waiver. The minority found that there was. It seems to us on the facts found that, as a matter of law, both those conclusions were justified. We can see no error of law in either. Were we to be particularly cautious, we would however suggest that in order to determine whether a waiver takes place it is necessary to identify the facts which amount to that waiver. Of course where the actual terms of someone's contract are changed, then the very fact that the person continues to work under that contract may be very potent evidence of waiver of any breach of the original terms. Indeed such continuation may, in fact, amount to an agreement to a variation. Where however there are a series of unpleasant incidents which an employer does nothing about, which is not necessarily this case, we find it difficult to understand how, simply by continuing to work, those breaches are regarded as waived in any permanent sense. Of course a waiver may take many forms and may, in some circumstances, be conditional upon there being no repetition of an earlier breach. Where nothing is said about it, and the Tribunal is left to infer or imply such a waiver then the facts upon which those inferences are based must be scrutinised. In this case the Respondent had taken advantage of an opportunity to move to another site, which does not seem to us to be a waiver, and the majority described it as being the Respondent's finding a solution to his problem. It is true that some time went by but, on the view of the majority, that was really only from June to August. We can find no error of law in the decision of the majority that there was no waiver of the earlier breaches.

a. We have been concerned to consider what is the relationship between the principle that there can be a series of incidents, none of which in themselves constitute serious breaches, but which combined together amount to a breach of the implied term of trust and confidence such as to amount to constructive dismissal on the one hand and the principle of waiver, on the other. The very fact of there being a series implies that an employee is carrying on in his work notwithstanding the occurrence of these events. This of course, is normally an example of waiver. Also it very often happens that the final incident is in itself insubstantial, no more than a piece of straw, but sufficient to provide the continuity in the series to qualify the whole series of incidents as a breach.

b. It seems to us that a Tribunal confronted with this sort of situation must look and see if the final incident is sufficient of a trigger to revive the earlier ones. This will, it seems to us, involve looking at the quality of the incidents themselves, the length of time both overall and between the incidents, and it will also involve looking at any balancing factors which may have, at any point, been taken to constitute a waiver of earlier breaches.

c. Finally, when considering the issue of waiver, the very nature of the waiver will need to be considered. It is not only a question of seeing whether the facts give rise to either an express or implied waiver, but considering the terms of the waiver itself. Is it a once and for all waiver, or do the circumstances give rise to the implication of a conditional waiver, for instance a waiver subject to the condition that there would be no repeat of similar conduct or, as in this case, that the Appellants would not continue the lack of support. Finally, of course, any finding of waiver has to be identified and based on clear facts or inferences from established facts.

d. The Employment Tribunal was faced with the need to examine carefully evidence from Witnesses, to assess them and to gain an impression not only as to what happened but also as to the general atmosphere and underlying significance of those events. Such judgments, in cases like this, are always difficult and it is not surprising, therefore, that in assessing the evidence the Tribunal was not unanimous. However we have discerned no arguable error of law in the reasons of the Tribunal and accordingly the appeal falls to be dismissed at this stage."

Waiver was expressly considered again by the EAT in Logan v The Commissioners of Customs and Excise (EAT 0686/00 Judgment 23 May 2002). After citing Hamill, the EAT said, at paragraph 32:-

"32. We were provided with arguments as to similarities and as to differences between the facts of Lewis v Motorworld and Hamill v Strong; we must remind ourselves, however, of the fourth of the principles set out in the passage from the judgment of Glidewell LJ in Lewis v Motorworld which we have quoted above; and the factual details of the authorities are not important in that context. What is important, in our judgment, is that neither decision is authority for the proposition that there has to be any particular degree of or any proximity in time or nature between the earlier conduct and the later conduct which are relied upon by the employee as together constituting a course of conduct which cumulatively amounted to a repudiatory breach of contract. It is for the Tribunal to consider in each case whether the whole of the conduct relied upon, viewed cumulatively, does amount to such repudiatory conduct. The earlier conduct, if it constituted a breach of contract, will almost always in such cases have been affirmed or waived, as the EAT pointed out in Hamill v Strong; but neither that fact nor the passage of time thereafter necessarily precludes the Tribunal from answering the question set out in the third of Glidewell LJ's principles in favour of the employee. However, the passage of time between the earlier and the subsequent conduct relied upon may of course be a relevant factor in the Tribunal's assessment of the correct factual answer to that question. Whether a difference in nature between the earlier and the subsequent conduct could be a material factor we rather doubt – but since the Tribunal in this case did not rely upon any difference in the nature of the conduct it is not necessary to consider it further."

In our judgment, these decisions establish that:

(1) An employee's continuation of work after adverse conduct should not normally be treated as amounting to a waiver or affirmation of the contract of employment such as permanently to prevent reliance upon such conduct as part of a cumulative course of conduct which included subsequent conduct. Neither the waiver/affirmation of that earlier conduct nor the passage of time thereafter necessarily prevents the Tribunal from looking at the whole of the conduct and deciding that there has been, cumulatively, a fundamental breach of contract and that the employee has left because of that cumulative breach of contract and after a "last straw";

(2) Where more than a continuation of work is relied upon as constituting a waiver, the same principle applies;

(3) It is possible for a Tribunal to decide on the facts that a waiver was conditional upon there being no further breach, or that a waiver was unconditional, i.e. a once and for all waiver.

We would add that an unconditional waiver which has the effect that the preceding conduct can never thereafter be relied upon, together with subsequent conduct, as amounting cumulatively to a fundamental breach of contract is likely to be established only rarely and on the basis of very clear evidence. The nature of any waiver must, however, be a question of fact for the Tribunal.

In the present case it was not part of the Authority's argument that there had been an unconditional waiver or affirmation; and the Tribunal do not appear to have considered whether the affirmation or waiver of events prior to Mrs Royle's promotion was unconditional or was of the much more usual type which not intended to and did not have the effect that those events could never subsequently be relied upon. The Tribunal concluded, without more, although the point had not been argued before them, that there had been a permanent or unconditional waiver of any preceding breaches. In doing so the Tribunal, in our judgment, erred in law.

However, we see great force in Mr Howard's alternative submission that the Tribunal's view of Mrs Royle's complaints prior to her promotion was such that, had those complaints been taken into account as part of the cumulative series of events, the Tribunal would have come to the same conclusion, namely that there was not a fundamental breach of contract.

The Tribunal had, at paragraphs 62 to 64, considered Mrs Royle's complaints, including - as we have determined in addressing Ground A – the four matters which it is said that they failed to consider. They found that there was understaffing for only a short period; otherwise their conclusions were that Mrs Royle was provided with adequate support throughout the relevant period. We are fully aware that, if a Tribunal has erred in law in omitting to take into account a factual element in a party's case, it is only where the case is overwhelming that it is open to an Appellant Tribunal to decide that, had there been no such error, the facts were such that the Tribunal would have reached the same conclusion; but in the light of the Tribunal's detailed findings of fact at paragraphs 8 to 17 and their conclusions at paragraph 62 to 64, which we have already discussed in some detail, and bearing in mind both the nature of the complaints and the time which passed between Mrs Royle's promotion and her resignation and the Tribunal's clearly expressed conclusions as to the subsequent complaints, to which we will refer in more detail in addressing Ground G, which were in summary that they did not amount individually or cumulatively to a fundamental breach of Mrs Royle's contract of employment, we are satisfied that in this case the Tribunal would not, if they had considered the conduct which they excluded from their consideration, have come to any different conclusion. It is, in our view, plain when the judgment is read as a whole that the Tribunal's general view of the pre-promotion complaints was that there was little in them.

In any event, for reasons which will appear later, if we had taken the view that a limited remission to the Tribunal was appropriate in the light of the Tribunal's error of law in relation to affirmation which we have found to have been made, such a remission would have been rendered unnecessary by our conclusions on Ground G of this appeal.

Ground F

It is now necessary to move forward to the far end of the history of what passed between Mrs Royle and the Authority in the course of her employment, namely the meeting of 5 January 2004, which was relied upon by Mrs Royle as the "last straw". Because we have thus far been considering grounds which relate to the earlier part of that history, we regard it as helpful briefly to remind ourselves that, by the stage at which the Tribunal came to consider whether that meeting amounted to a "last straw", they had set out detailed conclusions as to all the matters of complaint raised by Mrs Royle from September 2001 to January 2004. They found that there was no validity in her complaints of overwork, understaffing and stress. They considered and rejected her other complaints. In particular they found that there was no substance in her complaint about breach of client confidentiality; it was open to the Authority to disclose the reporter's pre-employment questionnaire under the Data Protection Act (a conclusion which is not said to have been wrong in law). There was no substance in Mrs Royle's belief that Mr Sweeney had threatened to go into confidential records or that Mr Morley had removed records from files. See paragraphs 65 to 70 and, as to confidentiality, paragraphs 71 to 75.

At paragraph 76 the Tribunal, having found that none of the matters of which Mrs Royle complained, post-promotion, amounted of themselves to fundamental breach of contract, correctly asked themselves whether they amounted to a continuing course of conduct which amounted to such a breach, with the meeting of 5 January being the last straw.

At paragraph 77 they answered that question in the negative; they did so on two separate bases. The first was that there was no such continuing course of conduct; they set out their reasons for that conclusion at paragraph 77 (i), to the first sentence of sub-paragraph (iv). The second was that the meeting of 5 January was not of itself a "last straw", for the reasons set out in the remainder of paragraph 77(iv).

Mr Oulton criticised these conclusions on four fronts; they were that:

(1) The Tribunal had, in error of law, ruled out any consideration of pre-promotion events as part of the continuing course of conduct;

(2) The Tribunal had failed to consider whether the meeting on 5 January 2004 of itself amounted to a fundamental breach of contract;

(3) The Tribunal had failed, in deciding that the meeting of 5 January 2004 was not a "last straw", to apply the test set out by the Court of Appeal in Omilaju and in the second of the four propositions at paragraph 26 of the EAT's judgment in Barke that an act may amount to a "last straw" if it contributed something significant to the breach of the implied term and was not entirely innocuous;

(4) The Tribunal had failed to take into account the evidence of Miss Cornwell that the Authority had not followed normal procedure in calling the meeting of January 2005 when Mrs Royle was signed off work with depression.