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Cite as: [2006] UKEAT 917_4_1301, [2006] UKEAT 0917_04_1301

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		BAILII case number: [2006] UKEAT 0917_04_1301
		Appeal No. UKEAT/0917/04

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 October 2005
	Judgment delivered on 13 January 2006

Before

HIS HONOUR JUDGE BURKE QC
MS B SWITZER
MISS S M WILSON CBE

MRS E BARKE APPELLANT

SEETEC BUSINESS TECHNOLOGY CENTRE LIMITED RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant

MR OLIVER HYAMS
(Of Counsel)
Instructed by:
Messrs Brian Barr Solicitors
Enfield House
Bury Old Road
Manchester M7 4QX

For the Respondent

MR BRUCE GARDINER
(Of Counsel)
Instructed by:
Messrs Wollastons Solicitors
Brierly Place
New London Road
Chelmsford
Essex CM2 0AP

SUMMARY

The Tribunal rejected the employee's claims that there had been constructive unfair dismissal and disability discrimination. On her appeal:

(1) In deciding to reject the constructive unfair dismissal claim the Tribunal failed to consider whether the accumulation of matters of which the employee complained amounted to a fundamental breach of the implied term of trust of confidence and considered only whether each matter was a breach.

(2) The Tribunal failed to approach what was said to be the last straw on the basis that it did not have to be a breach of contract.

(3) The Tribunal's answers to questions posed by the EAT formed part of their judgment as a whole but did not remedy the faults.

(4) The Tribunal's conclusions as to individual acts of disability discrimination were unassailable.

Lewis v Motorworld, Meikle and Omilaju applied. Appeal allowed in part. Remission of U.D and D.D by dismissal to new Tribunal.

HIS HONOUR JUDGE BURKE

Introduction

This is an appeal by the employee, Mrs Barke, against the rejection of her unfair dismissal and disability discrimination claims brought against her employers, Seetec Business Technology Centre Limited ("Seetec") by the Employment Tribunal sitting at Stratford and chaired by Mr Duncan. The Tribunal's decision with written reasons was promulgated on 25 October 2004. Mrs Barke's original Notice of Appeal was dated 3 December 2004; it contained, among other grounds, a number of grounds in which it was asserted that the Tribunal in their decision had failed to make findings of fact upon some matters and had failed to give any reason for some of their findings. As a result, at the stage of the preliminary sift of Mrs Barke's appeal to the Employment Appeal Tribunal on 21 December 2004, it was ordered by the President that the Employment Tribunal be requested to provide to the EAT answers to specific questions as to their conclusions and reasons for them. Mrs Barke appealed to the Court of Appeal, contending that the EAT had no jurisdiction or power to make such an order; but the Court of Appeal rejected that contention; their decision is to be found at [2005] ICR 1373. The Chairman then set out responses to the questions posed by the EAT in a letter dated 24 January 2005; as a result Mrs Barke was given permission to amend her grounds of appeal; and her appeal now proceeds upon those amended grounds.

Mrs Barke was employed by Seetec from January 1999 as an Employment and Training Adviser; from October 1999 she was promoted to the position of Programme Manager. The Tribunal found that from, July 2001 she experienced pain and sensitivity in various parts of her body and was, in February 2002, diagnosed as suffering from fibromyalgia. The Tribunal described her continuing symptoms and disabilities in detail in paragraph 13 of their judgment; they were substantial, although their level fluctuated.

It was not in dispute that Mrs Barke was a disabled person within the meaning of the Disability Discrimination Act 1995 at the material times. The Tribunal did not accept that she had also suffered a stroke in 2001 as she believed to have been the case; but they found that she had suffered from fibromyalgia from July 2001 and that the consequences were those set out in paragraph 13 of the judgment, as we have described. The Tribunal also found that, by the time at which, according to Mrs Barke's complaints, reasonable adjustments were not being made. Seetec had a reasonably accurate understanding of the symptoms from which she suffered.

There was however one aspect of her complaints which the Tribunal did not accept. She contended that, as a result of her condition, she was unduly susceptible to heat. The Tribunal was not satisfied that that was so; they found that any such susceptibility was not attributable to her fibromyalgia and that there was no clear medical evidence of any separate condition; see paragraph 73.

There is now no relevant challenge to the Tribunal's findings as to the nature and extent of Mrs Barke's disability and impairment.

There was a long history which led up to the end of Mrs Barke's employment which occurred when she resigned on 19 September 2003, having given 4 weeks notice in writing of her resignation on 20 August. That history was investigated in detail before the Tribunal over the course of 3 days and was the subject of extensive and detailed findings of fact by the Tribunal, at paragraphs 9 to 66 of their judgment. We will endeavour to summarize that history from the Tribunal's detailed findings of fact. As a result of her illness Mrs Barke was away from work from 30 July 2001 to 25 March 2002. In January 2002 a medical report advised that Mrs Barke should see a consultant rheumatologist, Dr Wong; in March 2002 Ms Conway of Seetec wrote to Dr Wong, asking for a medical report; Dr Wong replied that it had been sent to Mrs Barke and would, in the absence of objection, be sent to Ms Conway on 1 April; but his report was never received by Seetec; and Ms Conway chased neither Mrs Barke nor Dr Wong for the report. Between Mrs Barke's return to work on a part-time basis on 25 March 2002 and May 2002 various patterns of work were tried and discussed. It was ultimately agreed that Mrs Barke should work from 10.30 am to 3.30 pm in the office for two days per week and should otherwise work at home. By August 2002 Mrs Barke had obtained a car under the Motability Scheme and had increased her hours in the office. She was working from 9.00 am to 4.30 pm which was half an hour shorter than the ordinary working day; but she was only taking half an hour for lunch instead of the usual hour. Ms Conway was not happy about this and insisted that Mrs Barke should take her full lunch hour and finish at 5.00 pm.

Late in August 2002 Mrs Barke had a further meeting with Ms Conway. She had with her a risk assessment questionnaire which she had completed in relation to her working position. She complained of various problems relating to her chair, her computer equipment and the space around her desk. Ms Conway said that there should be a formal risk assessment and Mr Hecker, Seetec's Health and Safety Representative from whom Mrs Barke had obtained the questionnaire, was instructed to carry out such an assessment. Mrs Barke's desk and equipment were moved to give her more space.

At the end of September Mrs Barke and Ms Conway met again. Mrs Barke said that she was unable to work for five days a week and was taking Wednesdays off altogether. She wanted, however, to revert to her half hour lunch break, so as to make up for money lost as a result of her inability to work a full week by working an extra half hour per day of her four day week. Ms Conway's position about the lunch break remained unchanged.

Over the next few months there were various discussions between Mrs Barke and members of Seetec's management, the details of which are set out in the Tribunal's decision and are not of importance for present purposes. In January 2003 Mrs Barke formally invoked Seetec's grievance procedure, complaining that her proposals and needs for flexibility were being unfairly rejected. This led to a grievance meeting on 24 January 2003. Mrs Barke was asked what she wanted and, according to the Tribunal's findings, put forward a list of matters namely assessment of her work station (which despite the proposal in August 2002 had not happened), consideration of her parking difficulties, having a shorter lunch break, working from home, the provision of more support from her line manager and not having to carry out a particular task which involved assessment of candidates. A number of these matters, but not all of them, were addressed in a letter from Seetec dated 19 February 2003.

Over the next months Mrs Barke complained that her parking bay, provided as a result of the grievance hearing, had on occasions been blocked; there were occasions when Mrs Barke wanted to work from home in the absence of agreement and, when she was ill, had sought to take her days off as holiday, which Ms Conway would not permit. In April an assessment report from outside consultants made various recommendations, some of which were carried out.

On 5 June Seetec were told by Mrs Barke's husband that Mrs Barke was unwell and would not be coming into work. On 7 July he left a similar message saying that she had been signed off for a further month. No medical certificates were sent; Ms Conway drew this to Mrs Barke's attention; two certificates were sent on 30 July 2003. Mrs Barke returned to work on 5 August but left early because it was too hot; she worked intermittently until 20 August. In that period she suffered from further parking problems.

Mrs Barke had been paid in full for July 2003 although she had not worked a full month. She was aware that, when the next pay day came on 20 August, she would be likely to suffer deduction from her salary because, while away ill, she was entitled to statutory sick pay only. She asked Seetec what she would receive in August but nobody was able to answer her question; and the lack of information made Mrs Barke feel unsettled.

On 20 August Mrs Barke resigned in writing, giving four weeks notice. The reasons she gave are set out in her resignation letter and are summarized in paragraph 65 of the Tribunal's judgment. Essentially she was complaining that Seetec had misunderstood and had made insufficient adjustments and allowances for her condition. With intermittent days off for holiday and illness she worked out her notice period and then left.

The Tribunal's Judgment

The Tribunal identified the issues which they had to decide at paragraph 6 of their judgment. They were:

1) what was the nature of Mrs Barke's impairment, it being conceded that she was a disabled person;

2) did the Respondents discriminate against her by subjecting her to detriment or by failing to comply with their duty to make reasonable adjustments in four respects?

3) was Mrs Barke constructively dismissed?

4) did the Respondents discriminate against her by dismissing her?

The Tribunal directed themselves as to the relevant provisions of the Disability Discrimination Act 1995 at paragraph 67 of their judgment and to section 94(1) of the Employment Rights Act 1996 at paragraph 68 of their judgment. They directed themselves as to the principles of constructive dismissal at paragraph 69, in these terms:

"69 To prove constructive dismissal an employee must show that the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. Conducting oneself without reasonable and proper cause in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee would be such conduct. The employee must also make up his or her mind to leave soon after the conduct of which he or she complains and his or her departure must be as a result of the employer's conduct."

The Tribunal then, at paragraph 73, made findings as to the nature of Mrs Barke's impairment. At paragraphs 74 to 78 they set out their conclusions upon the alleged failures to make reasonable adjustments and/or subjecting to detriment (other than by dismissal); they rejected Mrs Barke's claim in each case. We do not need to set out or summarize those conclusions at this stage; we will have to refer to some of them hereafter.

They then addressed the issue of constructive dismissal in one very long paragraph, paragraph 79. We feel that we cannot do justice to the arguments in this case unless we set out that paragraph in full; it is as follows:

"79

6.3 With regard to constructive dismissal, it is to be noted that Mrs Barke in her evidence stated that she had thought of leaving at a much earlier stage and had been looking around for an alternative job. Mrs Barke was ill for some time and when she came back to work on 5 August 2003 the Respondents had already put in place the recommendations of Medic International with regard to equipment. Mrs Barke accepts that some of the days she was back at work were exceptionally hot due to record temperatures. This placed the Respondents in a dilemma because Mrs Barke's workstation was set up in a room which did not have air conditioning. In moving Mrs Barke to an air conditioned room the Respondents solved one problem. Mrs Barke in her last week or so before her resignation had a number of problems in parking or moving her car and found this understandably very irritating. The last straw it appears to the Tribunal, was that Mrs Barke anticipated that there would be a sizeable reduction in her pay packet on 20 August 2003 but could not obtain any indication of what she would receive. Mrs Barke suggested that one of the Respondents' employees told her that she was instructed not to tell Mrs Barke the position, but we do not believe that this is what happened and consider it more likely that the employee at that point did not know the actual figure. Indeed Ms Conway stated in evidence that there was a degree of uncertainty about the amount because the Respondents realised that if they made the full deduction Mrs Barke would receive nothing that month whatsoever. It does not seem to this Tribunal that there was any breach of contract with regard to the pay. It was open to the Respondents to claw back the overpayment made in the previous month and Mrs Barke knew - thus her concern -that there would be such a claw back. It is further of note that Mrs Barke was encouraged to resign by her husband because just prior thereto she came home and burst into tears and admitted she could not carry on. Mr Barke felt that enough was enough and that his wife should indeed resign. The question for us though is whether Mrs Barke was justified in resigning. The Respondents' Counsel has suggested Mrs Barke resigned because it was all getting too much for her and that this was understandable for somebody who suffered as she did. We have to decide whether Mrs Barke resigned because of a fundamental breach of contract by the Respondents. Mrs Barke says that she had lost trust and confidence in the Respondents because of the way they had treated her. We conclude that Mrs Barke was frustrated because she expected everything to be as she wished. One should not forget that persons without a disability run into problems at work with regard to their job description, relationship with managers, car parking and so on. Mrs Barke was entitled to special treatment as she was disabled but it does not mean that nothing will ever go wrong. The Respondents can be criticised in a number of respects. It is surprising that Mrs Conway did not follow up the fact that she never received Dr Wong's report. It is also surprising that an assessment was not carried out in house after Mrs Barke had filled out the standard form. There was some uncertainty as to what happened next because Mrs Barke was supposed to get in touch with Mr Hecker. We do not know whether she did or not. It is also surprising that nobody spoke to Mrs Barke about the intention to claw back the overpaid wages. However, in this last respect the Tribunal has noted that the decision to resign was made prior to Mrs Barke knowing what wages she would actually receive. Although Mrs Barke anticipated there would be a reduction, she only knew what the true position was after she had in fact resigned. Mrs Barke made a particular point of saying that she was very concerned about doing external assessments which would require her to drive to and park at a different 1ocation. However after her fibromyalgia was diagnosed Mrs Barke never did a single external assessment. Mrs Barke was encouraged to start external assessments, but no real pressure was applied and when Mrs Barke refused a particular assignment no sanction was imposed. Accordingly we do not believe that any acts of the Respondents in this respect amounted to breaches of contract nor that Mrs Barke's concern was any part of the reason for her resignation. It may well be that Mrs Barke did lose trust and confidence in the Respondents, but we do not consider that they acted in such a manner that was calculated or likely to destroy or seriously damage the relationship of confidence and trust. The Respondents were trying to meet Mrs Barke's concerns and we conclude that they did not in fact wish to lose her as an employee. The failures of the Respondents which we have noted were mostly at an earlier date in the series of events and we do not conclude that, even if they had been breaches of contract, they were part of the reasons for Mrs Barke's final resignation. The Respondents' Counsel may well be right when he submitted that Mrs Barke could not cope with the pain she suffered, driving to and from work and working. In any event, we are not satisfied that Mrs Barke was constructively dismissed."

On the basis set out in paragraph 79 the Tribunal rejected Mrs Barke's constructive dismissal claim; and they rejected her claim to have been discriminated against by dismissal because, it having been decided that there was no constructive dismissal, there was no dismissal. Mrs Barke had resigned. See paragraph 80.

The Amended Grounds of Appeal: Constructive Dismissal

The Amended Grounds of Appeal and the arguments before us concentrated predominantly upon the Tribunal's conclusions as to constructive dismissal. If Mrs Barke's attack upon those conclusions succeeds and the constructive dismissal issue has to be re-considered, it will be necessary also to reconsider whether the dismissal, if there is found to have been a dismissal, was an act of discrimination contrary to the Disability Discrimination Act. However Mr Hyams, on behalf of Mrs Barke, also sought to attack some of the Tribunal's conclusions upon Mrs Barke's allegations of discrimination other than by way of dismissal. As did the parties, we will address the dismissal issues first.

By the first Ground of Appeal Mrs Barke contends that the Tribunal erred in law in deciding that Mrs Barke had not been constructively dismissed in three respects, namely:

1) they failed to ask themselves whether the accumulation of acts or omissions, which, on Mrs Barke's case, constituted at the time of her resignation, a breach of the implied term of trust and confidence, did constitute such a breach – as opposed to whether each act or omission of itself amounted to such a breach (the "accumulation issue");

2) they asked themselves whether the last event or events relied upon constituted a breach of contract and not whether there was a series of acts which together, albeit not individually, amounted to such a breach (the "final event issue") ;

3) they wrongly concluded that, if Mrs Barke resigned in part for reasons which did not constitute a breach of contract, she could not have been constructively dismissed (the "reasons issue").

We shall address each of these issues separately; but before doing so it is necessary to set out the applicable law.

In cases where the employee bases his or her constructive dismissal claim on a course of conduct the starting point is the decision of the Court of Appeal in Lewis v Motorworld Garages Ltd [1986] ICR 157. In that case the employee resigned after what he claimed was a sequence of events over a period of many months, culminating in a written memorandum sent to him by his employers which, it was asserted, contained unjustified criticisms of his performance. That memorandum was said to be the last straw which made it clear to the employee that the relationship of trust and confidence between himself and his employers no longer existed. The employee's claim that he been constructively dismissed failed; the Tribunal's decision was upheld by the EAT but reversed by the Court of Appeal. The claim was remitted to a fresh tribunal because the tribunal had not clearly asked themselves or provided a clear answer to the question whether the cumulative series of acts taken together amounted to a breach of the implied term of trust and confidence; see per Glidewell LJ at page 171 F to H and per Ackner LJ at pages 165B to 166C.

Glidewell LJ, in a passage which has since been regularly followed, said at page 169 D to G:

"The principles to be found in the relevant authorities can, I believe, be summarised as follows.

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

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

(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (See Woods v. W. M. Car Services (Peterborough) Ltd. [1981] I.C.R. 666.). This is the "last straw" situation."

In Omilaju v Waltham Forest London Borough Council [2005] ICR 481 the employee's claim to have been constructively dismissed was based upon a sequence of allegedly less favourable treatment of him; the last straw was said to have been the employer's refusal to pay his salary and to give him leave while he was attending a hearing before the Employment Tribunal of a number of claims which he had brought against the employer. The Court of Appeal restored the Tribunal's decision in favour of the employer. A central question raised by the appeal was whether the last straw, which it had been decided in Lewis did not of itself have to amount to a breach of contract, had to be conduct which was blameworthy or unreasonable. Dyson LJ, with whom May and Wall LJJ agreed, said at paragraphs 14.5 to 17 of his judgment:

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

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

15 The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v Motorworld Garages Ltd [1986] ICR 157.

Neill LJ said, at p 167C, that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Glidewell LJ said, at p 169:

"(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (See Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666.) This is the 'last straw' situation. "

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

I7 It is the alleged failure by the employment tribunal in the present case to apply the judgment of Glidewell LJ which led the Employment Appeal Tribunal to allow the appeal. It is submitted by Mr Weiniger on behalf of the employer that, although, as Glidewell LJ makes clear, the final straw does not need to be a breach of contract, it must at least be conduct which is "blameworthy or unreasonable". Anything less than a breach of contract or conduct which is blameworthy or unreasonable is not capable of being a final straw in the sense discussed by Glidewell LJ."

In Meikle v Nottinghamshire County Council [2005] ICR 1 the employee claimed disability discrimination and constructive unfair and wrongful dismissal; one of the issues was whether, in circumstances in which although there had been a series of acts which amounted to a fundamental breach of the implied term of trust and confidence the employee had arguably resigned at least in part in response to matters which had not been or been part of such breach of contract, her claim that she had been constructively dismissed could have succeeded. Keene LJ at paragraph 33 said on that issue:

"33 It has been held by the Employment Appeal Tribunal in Jones v F Sirl & Son (Furnishers) Ltd [1997] IRLR 493 that in constructive dismissal cases the repudiatory breach by the employer need not be the sole cause of the employee's resignation. The appeal tribunal there pointed out that there may well be concurrent causes operating on the mind of an employee whose employer has committed fundamental breaches of contract and that the employee may leave because of both those breaches and another factor, such as the availability of another job. It suggested that the test to be applied was whether the breach or breaches were the "effective cause" of the resignation. I see the attractions of that approach, but there are dangers in getting drawn too far into questions about the employee's motives. It must be remembered that we are dealing here with a contractual relationship, and constructive dismissal is a form of termination of contract by a repudiation by one party which is accepted by the other: see the Western Excavating case. The proper approach, therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract of employment as at an end. It must be in response to the repudiation, but the fact that the employee also objected to the other actions or inactions of the employer, not amounting to a breach of contract, would not vitiate the acceptance of the repudiation. It follows that, in the present case, it was enough that the employee resigned in response, at least in part, to fundamental breaches of contract by the employer."

He continued by setting out again the principles in last straw cases derived from Lewis at paragraphs 36 and 37 as follows:

"36 But even if the tribunal had been right that the matters which led to her resignation were not in themselves a breach of contract, that would not have been the end of the story. Such a finding would not have necessarily produced the conclusion that there was no constructive dismissal. In cases where a course of conduct or a series of events leads to a breach of the implied term, the final event which brings about the employee's resignation need not itself amount to a breach of contract. That was so held in Woods v W M Car Services (Peterborough) Ltd ICR 666, a decision which was approved by this court in Lewis v Motorworld Garages Ltd [1986] ICR 157, where Glidewell LJ said, at p 169:

"(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (See Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666.) This is the 'last straw' situation."

This is the very reason why the tribunal here went on to consider whether the course of events from 1993 onwards amounted to such a breach. In the light of its earlier view that the trigger for the resignation was not a breach of contract, it had to consider that issue.

37 However; it patently erred when it did so. It rejected the "last straw" argument because it applied the subjective test of asking whether the employee's trust and confidence had in fact been undermined. Even if that had been the appropriate approach, the conclusion that Mrs Meikle's trust and confidence remained despite her relationship with the head teacher having broken down is an unsustainable one. But the test itself is wrong in law. As Lord Nicholls of Birkenhead said in the Mahmud case [1997] ICR 606, 611B: "Proof of a subjective loss of confidence in the employer is not an essential element of the breach." As I have already noted, the employer does not now seek to argue to the contrary. It follows that the tribunal fell into error when it considered, as it had to, the "last straw" argument, and the appeal tribunal was right in so concluding."

Thorpe LJ and Bennett J agreed with Keene LJ's judgment.

From these decisions of the Court of Appeal we distil the following principles:

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)

The Accumulation Issue

Mr Hyams' submission is that the Tribunal, in considering constructive dismissal, did not consider whether the accumulation of acts and omissions on which Mrs Barke relied together constituted a breach of the implied term of trust and confidence but asked themselves only whether each of those acts or omissions was individually a breach of contract. It is not in dispute that Mr Hyams advanced Mrs Barke's case before the Tribunal on the alternative bases firstly that the relevant acts and omissions were individually breaches of contract and secondly that those acts and omissions cumulatively amounted to such a breach; but Mr Hyams' argument is that the Tribunal only considered and decided on the issue of constructive dismissal on the basis of the first of those alternatives. He draws attention to paragraph 70 of the Tribunal's judgment in which, in purporting to record his submissions, they make no reference to the second alternative and to paragraph 79 in which the Tribunal appear to have criticized Seetec in respect of a number of matters (while rejecting other items of criticism) but, it is submitted, did not look at all at the effect of those matters taken together.

Mr Gardiner on behalf of Seetec drew our attention to the fact that, at paragraph 69, the Tribunal directed themselves immaculately as to the principles of constructive dismissal. That passage, he submits, can be seen to have provided the framework of the Tribunal's decision in paragraph 79 in which there are clear indicators that the Tribunal were considering whether there had been a breach of contract of the nature which had to be proved, if Mrs Barke were to succeed, in terms of the accumulation of acts and omissions. He pointed to expressions within paragraph 79 such as "Mr Barke felt that enough was enough", "We have to decide whether Mrs Barke resigned because of a fundamental breach of contract by the Respondents" in the 13^th and 16^th sentences of the very long paragraph 79 and to these words in the 29^th sentence:

"Accordingly we do not believe that any acts of the Respondents in this respect amounted to breaches of contract nor that Mrs Barke's concern was any part of the reason for her resignation."

He referred also to the words "the series of events" in the 35^th sentence. We have not found a better way to describe passages in para 79; to use line numbers might confuse because different printers may reproduce the paragraph in different formats. In order to assist we have annexed to this judgment a further copy of paragraph 79, indicating on it the sentence numbers which we have used.

We prefer Mr Hyams' submissions. Although we agree that the self-direction in paragraph 69 is entirely correct, paragraph 69 is of no direct relevance to the specific point which we are considering; the Tribunal did not in their self-directions refer at all to the principles which we have set out above. We accept that there is no reference in paragraph 70, in which the Tribunal summarise Mr Hyams' submissions, to his having put his case, as it is accepted that he did, on the alternative bases of individual breaches and cumulative breach. When paragraph 79 is examined, it can, in our judgment, be seen that the Tribunal did not ask themselves and, if they did, did not answer the essential question posed by the second alternative and focused on whether each individual act or omission amounted to a breach of contract. Thus in the 10^th sentence, they said:

"It does not seem to this Tribunal that there was any breach of contract with regard to the pay".

At sentences 21 to 26 they say that Seetec could be criticized in a number of respects; but in sentence 32, which we have set out above, the Tribunal appear (in the first part) to have asked themselves whether any of those matters amounted to a breach of contract; viz:-

"any acts of the Respondents in this respect amounted to breaches of contract".

The words "in this respect" appear to us to mean "in these respects"; otherwise the matters of which they were critical of Seetec could be said not to have been the subject of any decision. The 35^th sentence; viz:-

"the failures of the Respondents which we have noted were mostly at an earlier date in the series of events and we do not conclude that even if they had been breaches of contract, they were part of the reasons for Mrs Barke's final resignation"

appears to us to have the same effect. The Tribunal appears to have been looking at the history on an individual and not on a cumulative basis. There is nothing which suggests that the Tribunal, at any point, asked themselves not whether the matters of which complaint was made amounted to breaches of contract but whether those matters or such of them as the Tribunal found to be worthy of criticism cumulatively amounted to a breach of contract, irrespective of whether any one of them individually amounted to such a breach. Had the Tribunal considered the accumulation issue, they would in our judgment have been bound to use different language from that which they chose in paragraph 79.

The passages in paragraph 79 relied upon by Mr Gardiner do not, in our judgment, support his argument. The Tribunal's description of Mr Barke's thought process is not illustrative of their own; the "we have to decide" sentence does not, as we see it, inform the reader as to whether the Tribunal were considering both of Mr Hyams' alternative ways of putting Mrs Barke's case or only the first of those alternatives. The "we do not believe" sentence appears to confirm that the Tribunal were considering only whether individual acts were individually a breach of contract; the Tribunal did not say "we do not believe that the acts of the Respondent amounted to a breach of contract". The reference to a "a series of events" comes in a sentence which addresses the reasons for Mrs Barke's resignation and does not indicate that the Tribunal were considering whether the series of events amounted to a breach of contract independently of the question whether any of those events individually amounted to a breach of contract.

However there remains to be considered what the Tribunal said in their answers to the EAT's questions. The second of those questions, to be found at paragraph 1(ii) of the EAT's order of 21 December 2004, was:

"Whether the Tribunal formed an opinion, and if so what (and for what reason or reasons) as to the alleged accumulation of aspects as referred in Ground 5 of the Notice of Appeal".

The Tribunal's answers were couched not in terms of the EAT's questions but in terms of the grounds of appeal; the relevant answer is given under the heading of "Ground 5" and is as follows:

"Ground 5. The Tribunal in finding that there was no breach of the implied term of confidence and trust considered the incidents individually and cumulatively. In particular the Tribunal the Tribunal noted that certain "failures" were not the reason for Mrs Barke's final resignation."

Naturally Mr Gardiner relied heavily upon the first sentence of that answer; the answer was, he submitted, to be treated as part of the original judgment of the Tribunal. He relied upon the judgment of the Court of Appeal in this very case, when deciding that the procedure by which questions were asked of the Tribunal by the EAT was within the EAT's jurisdiction, which upheld that procedure on the basis that it was designed to elicit historical facts from the Tribunal which were absent from but should have been in the original judgment in order to save the expense of an appeal hearing followed by a remission; see paragraphs 47 and 50 of the judgment of the Court of Appeal.

We accept Mr Gardiner's propositions; but in our judgment the Tribunal's answer under Ground 5 to the EAT's question is insufficient to cure the deficiencies in the Tribunal's judgment, for these reasons. First, that answer, if it had appeared in the original judgment, for example at the end of paragraph 79 or immediately after it, would not be sufficient to displace the content of paragraph 79 which, as we see it, demonstrates that the Tribunal had not appreciated or considered the accumulation issue; the Tribunal would and should be taken to have been making a statement in their answer which was not consistent with their own reasoning. This view is supported by the fact that the Chairman has not in his answer to the EAT put forward any reasons, save in the second sentence of the answer, for any conclusion that Mrs Barke's alternative way of putting her case failed, although the question clearly asked that the Tribunal should set out not only what opinion the Tribunal had formed on the accumulation issue but for what reasons they had formed any such opinion.

Further the second sentence reveals an apparent confusion in the minds of the Tribunal between two separate questions, namely did the course of conduct on which Mrs Barke relied cumulatively amount to a breach of the implied term of trust and confidence and did Mrs Barke resign as a result? Signs of that confusion are present in paragraph 79; e.g. sentences 15, 27 and 32; and the words "in particular" at the start of the second sentence of the answer to the EAT's question are an indication that the Tribunal was seeking to explain or give reasons for the conclusion set out in the first sentence on an erroneous basis. In a course of conduct case it may not be easy but it is important, in our judgment, to distinguish between the two different and separate issues which we have identified. The Tribunal did not make that distinction in their answer to the EAT's questions.

For these reasons we conclude that the Tribunal erred in law in failing to consider Mrs Barke's alternative case as to how a breach of the implied term of trust and confidence arose.

The Final Event Issue

Mrs Barke's case was that the final event or "last straw" in the course of conduct on Seetec's part on which she relied was the failure of Seetec to give her any information as to the extent of deductions which they were proposing to make from her pay in August 2003. The Tribunal found at paragraph 64 that Mrs Barke made enquiries as to what she was going to receive on the next pay day, 20 August, because she knew she had been overpaid in July; but she did not receive any answer. At paragraph 79, sentences 8 and 9, the Tribunal found that it was likely that Seetec did not know the actual figure to be deducted. Ms Conway had said in her evidence that, if the full deduction was made, Mrs Barke would receive nothing in August.

The Tribunal dealt with this at two passages in paragraph 79. After sentences 8 and 9 to which we have just referred, they said:

"It does not seem to the Tribunal that there was any breach of contract with regard to the pay…it was open to the Respondents to claw back the overpayment made in the previous month and Mrs Barke knew – thus her concern – that there would be such a claw back."

And subsequently, at sentences 26 to 28 they said:

"It is also surprising that nobody spoke to Mrs Barke about the intention to claw back the overpaid wages, however, in this last respect the Tribunal has noted that the decision to resign was made prior to Mrs Barke knowing what wages she would actually receive. Although Mrs Barke anticipated that there would be a reduction, she only knew what the true position was after she had in fact resigned."

Mr Hyams' criticism of these words (leaving aside that sentences 27 and 28 might be thought to contain a non sequitur – Mrs Barke's complaint was that she was not told what deduction would be made when she asked; the fact that she did not know the answer when she resigned would appear to support her case rather than to have the opposite effect) - is that the Tribunal considered the last straw on the basis that it had itself to amount to a breach of contract. Reading the relevant passages in paragraph 79 together, the Tribunal appear to have found that the failure to inform Mrs Barke of the intention to claw back the overpaid wages – and by implication how much was to be clawed back – was surprising but not a breach of contract; but it was not necessary for that surprising omission on Seetec's part to be a breach of contract, as was established in Lewis and, subsequent to the Tribunal's judgment, in Omilaju.

Mr Gardiner submitted that this point was not the subject of any detailed argument before the Tribunal and was only closely analysed for the first time in Omilaju; the Tribunal were therefore at a disadvantage; and we should be careful not to be persuaded by Mr Hyams' arguments unless the Tribunal had clearly failed to apply the correct test, as subsequently revealed by Omilaju. Paragraph 79, he submitted, could not be interpreted as clearly showing such failure; and in any event the position was, so far as this ground of appeal was concerned, again clarified by one of the answers given to the EAT by the Chairman in his letter of 24 January 2005.

The relevant question, set out in paragraph 2(iii) of the EAT Order of 21 December 2004 was:

"Whether the Tribunal formed an opinion and if so what (and for what reason or reasons) in relation to the matters in Ground 6 of the Notice of Appeal."

Paragraphs 6 of the Original Notice of Appeal was in these terms:

"The Employment Tribunal also failed to apply the proper test when asking itself (in paragraph 79 of its written reasons) whether the "last straw" was itself a breach of contract rather than whether the conduct of the Respondent which led the Appellant to resign was "an act in a series who cumulative effect is to amount to a breach of the implied term" of trust and confidence (applying the words of Dyson LJ in Omilaju… at paragraph 19."

The Chairman's answer was:

"Ground 6

Omilaju had not been decided, but if it had – and had been cited – the Tribunal would have decided that not telling Mrs Barke what reduction there would be from her wages was an entirely innocuous act and therefore could not be the final straw. The actual reduction (which was not in breach of any express term of the contract) was only known to Mrs Barke after she had resigned and could not therefore be a reason for the resignation."

Mr Gardiner submits that the Tribunal, in that answer, set out their conclusion that the failure to tell Mrs Barke what reduction there would be was innocuous and, pursuant to paragraph 22 of Dyson LJ's judgment in Omilaju, the final event on which Mrs Barke relied could not amount to a last straw. In response to Mr Hyams' point that that act or omission had been already found by the Tribunal to be surprising, Mr Gardiner submits that the two passages in paragraph 79 which were said to refer to that act or omission in truth referred to different issues, the "it does not seem" sentence referring to the specific failure of Seetec to respond to Mrs Barke's enquiries in August 2003 and the later sentences referring to a general omission on Seetec's part to inform Mrs Barke of their intention to claim back overpaid salary; thus there was no inconsistency between the Tribunal's criticism as surprising of the general omission and their regarding the specific failure as innocuous.

We are persuaded by Mr Hyams' arguments on this Ground of Appeal. We have found nothing – and Mr Gardiner was unable to point us to anything – which reveals any complaint by Mrs Barke of a general failure on Seetec's part to inform her of their intent to claim back overpaid salary. The findings of fact do not address such an issue. The sentence "it is also surprising" in paragraph 79 refers not to overpaid wages in general but to "the overpaid wages", an obvious reference to the issue as to Mrs Barke's inquiries about what would be in her pay packet on 20 August 2003.

In paragraph 79, in our judgment, the Tribunal did not, as they should have done, approach the issue of Seetec's failure to respond to those enquiries on the basis that that failure could constitute the last straw in a course of conduct which might cumulatively amount to a breach of the implied term of trust and confidence without itself being such a breach of contract. The purport of the two relevant passages in that paragraph is that that failure was surprising but not a breach of contract. It is of course right that the Tribunal did not have the advantage of reading Omilaju before compiling their judgment; the judgments in Omilaju were handed down about three weeks after the promulgation of the Tribunal's judgment in this case; but the relevant proposition was already to be found in Lewis (albeit perhaps less prominently), to which the Tribunal were expressly referred.

However, we have to ask ourselves again under this part of the appeal whether the Tribunal's error has been cured by the answer to the EAT's question. It appears to us that there is an inconsistency between sentence 26 in paragraph 79 "it is also surprising that nobody spoke to Mrs Barke about the intention to claw back the overpaid wages" and the Chairman's answer which sets out that the Tribunal would have decided that not telling Mrs Barke what reduction there would be was an entirely innocuous act. Whether the alleged last straw was innocuous was, of course, not the subject of argument before the Tribunal; it is apparent that the Tribunal (or the Chairman – there is no information that the Chairman consulted the other members of the Tribunal before writing the letter of 24 January 2005) looked at Omilaju (which was referred to in the relevant Ground of Appeal) and expressed a view without submissions which cannot, in our judgment, safely stand with the words of paragraph 79. Reading the paragraph and the answer together the Tribunal cannot be taken to have clearly concluded that what was alleged to be the last straw was not an act in a series whose cumulative effect was to amount to a breach of the implied term, which did not need to be unreasonable or blameworthy conduct; see Omilaju at paragraphs 19 and 20.

Furthermore there are no reasons set out in the answer letter for the conclusion that the letter says would have been reached that the final event was an entirely innocuous act. The second sentence of that paragraph of the answer does not supply any such reason. The answer to the EAT's question does not cure the defect, for the reasons we have set out.

We are satisfied that the Tribunal either erred in law in considering the alleged final event or have failed to make any clear finding as to the nature of the alleged last event and whether it was sufficient to constitute a last straw.

The Reasons Issue

Although in sentence 14 of paragraph 79 the Tribunal posed the question which they had to answer with regard to constructive dismissal as whether Mrs Barke was justified in resigning, it is clear that, at a number of places in that paragraph, the Tribunal were addressing a different question, namely whether the conduct complained of caused Mrs Barke to resign. Thus in the first sentence they said "with regard to constructive dismissal it is to be noted that Mrs Barke in her evidence stated that she had thought of leaving at a much earlier stage and had been looking around for an alternative job". They subsequently set out a number of matters which Mrs Barke, to put it neutrally, regarded as a problem and said that in respect of some of them Seetec could be criticized. They then said, at sentences 24 to 25, that she did not know what wages she would actually receive until she had resigned; we will repeat what they said at sentences 32 to 35:

"Accordingly we do not believe that any acts of the Respondents in this respect amounted to breaches of contract nor that Mrs Barke's concern was any part of the reason for her resignation. It may well be that Mrs Barke did lose trust and confidence in the Respondents, but we do not consider that they acted in such a manner that was calculated or likely to destroy or seriously damage the relationship of confidence and trust. The Respondents were trying to meet Mrs Barke's concerns and we conclude that they do not wish to lose her as an employee. The failures of the Respondents which we have noted were mostly at an earlier date in the series of events and we do not conclude, even if they had been breaches of the contract, they were part of the reasons for Mrs Barke's final resignation."

In the Chairman's letter to the EAT of 24 January 2005 under Ground 5 he wrote that certain failures were not the reason for Mrs Barke's final resignation.

Mr Hyams submits that those words in the Chairman's letter reveal, as also appears from the relevant words of paragraph 79, that the Tribunal did not appreciate or apply the principle established in Meikle, summarized in the third of the propositions set out in paragraph 26 of this judgment and approached the issue of causation on the basis that, if Mrs Barke did not resign in response to Seetec's conduct alone but only resigned in response to part of that conduct, her constructive dismissal claim could not succeed.

Mr Gardiner submits that, in sentences 32 and 35 of paragraph 79, the Tribunal applied the correct test, namely whether Mrs Barke resigned at least in part to fundamental breach of contract by Seetec and found as fact that the matters as to which they expressed criticisms were not any part of the reasons for Mrs Barke's resignation. The true reason for her resignation was that Mrs Barke was frustrated because she expected everything to be as she wished (sentence 18) and, perhaps, she could not cope with the pain which she suffered at work and when driving to and from work (sentence 36).

We would have preferred Mr Gardiner's submissions on this issue were it not for the words used by the Chairman in his letter under Ground 5; those words appear to reveal the Tribunal's thinking that only "certain failures" i.e. some of the failures were not the reason for Mrs Barke's resignation and to imply that other failures were or may have been the reason for her resignation and, further, appear to suggest that the Tribunal may indeed have approached this issue by making the error of principle of which Mr Hyams complained.

We have come to the conclusion that, for the reasons set out in the following paragraphs, we need not seek to resolve what is, as we see it, a confused picture beyond saying that it is not clear that the Tribunal had the correct principle in mind when expressing their conclusions on Mrs Barke's reasons for resigning. They did not in their self direction at paragraph 69 expressly direct themselves as to that principle; they merely said that the employee's departure must be "as a result of the employer's conduct".

Ground One Generally

Mr Gardiner submitted that if we concluded that, in any of the three areas which we have so far been considering, the Tribunal had applied the wrong test, we should nevertheless dismiss this appeal on the basis that no reasonable tribunal could come to any conclusion other than that there had been no constructive dismissal on the basis of the Tribunal's findings of fact. He took as an example the Tribunal's findings on the issue of the exposure of Mrs Barke to excessive heat. The Tribunal found, at paragraph 73, the heat caused Mrs Barke to slur her speech and affected her eyes (but not by reason of fibromyalgia or any separate medical impairment) and, at paragraph 76, that in early August 2003 there was a particularly hot spell when a number of employees found the heat unbearable, at paragraphs 58 to 62 that Mrs Barke was away from work from 5 June to 5 August 2003 and that she worked only in heat on 6 August 2003 to 3.00 pm (paragraph 62) or 2.00 pm (first paragraph of Chairman's letter of 24 January 2005), after which she worked in an air-conditioned room. These findings are again summarized in the first part of paragraph 79.

If Mrs Barke's complaint about conditions of excessive heat stood alone, subject to any ground of appeal against the Tribunal's factual conclusions on the heat issue, we would have been persuaded by this argument; indeed having appeared to reject that complaint, the Tribunal did not make it one of their criticisms. However it does not stand alone; there is a variety of matters of complaint on Mrs Barke's part which the Tribunal did not clearly reject as of no merit and which would or could have formed part of what was alleged to be the accumulation of acts and omissions on Seetec's part; and we cannot say with certainty, on the basis of the findings of fact, that had the Tribunal applied the correct principles they could, as a reasonable Tribunal, only have come to one conclusion. We take the same view about the result of the application of the correct principle to the last straw test.

There will, therefore, have to be a remission of the issue of constructive dismissal and, because the discrimination claim based on dismissal failed as a result of the Tribunal's conclusion that there had been no dismissal, of that part of the discrimination claim. There is no need for any reconsideration of the Tribunal's conclusions as to the nature and extent of Mrs Barke's admitted disability. We shall deal later in this judgment with the complaints of detrimental treatment and failure to make reasonable adjustments other than by way of dismissal.

Mr Gardiner submitted that, if there were to be a remission, it should be to the same Tribunal. He reminded us that in Sinclair Roche & Temperley v Heard [2004] IRLR 763 the EAT remitted a case of direct and indirect sex discrimination to the same tribunal after that tribunal had failed properly to address the issue or to make appropriate findings. The EAT said, that in deciding the nature of a remission, an appellate tribunal had to consider proportionality, time, whether there was bias, whether the decision was totally flawed, whether it would be wrong to enable the Tribunal to have a second bite of the cherry and the professionalism of the Tribunal.

We have weighed all of those factors. We recognize the extra cost of the remission to a fresh Tribunal; we recognize that some of the Tribunal's conclusions, particularly as to the nature and extent of disability and as to discrimination other than dismissal (see below) have not been the subject of attack or successful attack; the time gap between the Tribunal's decision and our decision in this case is similar to that in Sinclair Roche & Temperley; but what persuades us that the remission in this case should be to a fresh Tribunal is that the Tribunal in this case have produced a decision which we regard as flawed, and have had an opportunity to improve the position when responding to the EAT's questions but have not satisfactorily taken that opportunity. While fully acknowledging the professionalism of any Tribunal, we do not believe, in the light of the history of this case and the difficulties thrown up by paragraph 79 of the Tribunal's decision and the letter of 24 January 2005, that it would be just or appropriate to permit what would appear to be a second or possibly a third bite of the cherry in this case.

Accordingly, the remission will be to a fresh Tribunal.

Ground Two

Under ground two of the amended notice of Appeal Mr Hyams submitted that the Tribunal, in considering that there had been no repudiation of the contract of employment, failed to take into account a number of matters, each of which was relied upon by Mrs Barke individually as constituting such a breach and collectively as part of the accumulation of actions and inactions which together constituted such a breach.

Mr Hyams made it clear, when he came to this ground in the course of his argument, that ground two should be seen as an alternative to ground one – and indeed as a lesser alternative, in the sense that he acknowledged that he would be unlikely to succeed on ground two if he did not succeed on ground one. For the reasons we have set out ground one succeeds to the extent that there will have to be a remission of the constructive dismissal issue and of the concomitant discrimination issue. In the circumstances there is nothing to be gained by the parties or by a fresh Tribunal by our considering and deciding upon the parties' arguments as to whether the Tribunal failed to take into account or failed properly to take into account individual actions or inactions. It might, indeed, be positively unhelpful to do so. Grateful as we are for the arguments presented to us, we do not propose to address this ground of appeal further.

We take the same view about ground three of the amended notice of appeal which goes to the Tribunal's conclusion – if they did clearly so conclude – that exposure to excessive heat was not a part of Mrs Barke's reasons for resigning. A new Tribunal is going to have to consider this individual aspect of Mrs Barke's constructive dismissal case together with the others. The less we say about it now, in the context of constructive dismissal, the better.

Discrimination other than by dismissal

At paragraph 74 to 78 of their judgment the Tribunal set out their conclusions upon Mrs Barke's complaints against Seetec of disability discrimination by exposing her to detriment and by failing to make reasonable adjustments during the course of her employment. Their conclusions were that there had been no such discrimination in the way in which Seetec handled the parking arrangements (paragraph 75), in Seetec's reactions to the recommendations of a report by Medic International which constituted the assessment of Mrs Barke's work station promised at the grievance hearing in January 2003 (paragraph 76), in not permitting her to work from home to a greater extent (paragraph 77) and in relation to her lunch periods (paragraph 78).

Each of these complaints forms part of the accumulation of actions and inactions upon which Mrs Barke relied in alleging constructive dismissal. For the reasons we have set out, we have not addressed the criticisms made in the Notice of Appeal of those individual conclusions in so far as they relate to constructive dismissal.

However while it was entirely fair of Mr Gardiner to say, as he did, that this aspect of the appeal had received little attention in Mr Hyams' submissions, written or oral, Mr Hyams confirmed at the close of his submissions that the appeal was directed at each of the Tribunal's decisions upon these parts of the discrimination claim, with the exception of the exposure to excessive heat issue, dealt with in part of paragraph 76, which, he accepted, he could not challenge. Mr Gardiner agreed that it was open to Mr Hyams to challenge the other conclusions in this area.

Accordingly, while this was manifestly a very subsidiary aspect of the appeal before us, we must address the points raised, albeit with some brevity in this already lengthy judgment.

Car parking

The Tribunal concluded, in paragraph 75, that Seetec made a reasonable adjustment by giving Mrs Barke, the only mobility-disabled person at the premises, a designated parking bay which she herself chose and that, while Seetec could have done more to keep the bay clear for Mrs Barke e.g. by disciplining employees who parked in or blocked off her space, it would not have been reasonable for Seetec to be expected to go that far. They found that it was unreasonable of Mrs Barke to refuse Seetec's offer to park her car for her if problems arose on the basis that it would demean her or that there would be insurance difficulties. The Tribunal said, it believed that the insurance problems could have been sorted out. In the Chairman's letter of 24 January 2005 the Tribunal said that, in forming that belief, they had applied their own knowledge that it would "likely be possible to obtain insurance" to cover another person's parking one's car on private property and that no evidence was given nor any contention made that allowing someone to park one's car could affect the Motability Scheme.

Mr Hyams attacked this part of the Tribunal's conclusions on two fronts. The first was that there was no evidence on which the Tribunal could conclude that the insurance problems could have been resolved. The second is that the Tribunal did not give Mrs Barke notice that they were proposing to rely on their own knowledge of the likelihood that such a resolution was available. In support of the first front he relies on Halford v Sharples [1992] ICR 146 in which, at page 166G the EAT said that the ratio of Hammington v Berker Sportcraft Ltd [1980] ICR 248 was that the Employment Tribunal were entitled to use their specialized knowledge but not to substitute that knowledge for the evidence given in court and went on, at paragraph 167D, to say:

"The primary function of a lay member of the industrial tribunal is to find facts having listened to any direction in law given by the chairman and to reach a decision. It is at that stage that their industrial experience may be of assistance to them and to the chairman. They have often been referred to as "the industrial jury" and it is clear that their primary function is as jurors, finding the facts. This they must do upon the evidence and on many occasions this appeal tribunal has been asked to consider the evidence before an industrial tribunal and to consider whether there was evidence upon which the findings of fact could be made. If jurors or lay members make investigations of their own it is impossible for either party to know precisely what questions were asked or what information was given or the precise circumstances of the experience or "evidence" obtained by that juror or lay member. It is most important that only the evidence before the tribunal should be the basis of findings of fact."

Mr Hyams submitted that the Tribunal had fed into their decision their own knowledge which was not the specialized knowledge of an industrial jury and which the parties had not had the opportunity to consider.

In our judgment the Tribunal did not err in law in either of the respects put forward by Mr Hyams. Mr Gardiner informed us that the question of insurance difficulties only arose for the first time when Mrs Barke was being cross-examined by him about her refusal to allow Seetec to park her car for her when there were problems; her response was that allowing that would demean her and cause insurance complications and that she had not said that she had ever communicated any concern about insurance problems to Seetec. That is consistent with the relevant sentence in paragraph 75 in which the Tribunal were considering not whether Seetec had been unreasonable but whether Mrs Barke had been unreasonable – on which issue the Tribunal came to a conclusion which was plainly open to them. Mr Hyams told us that Mrs Barke's evidence was that she had told Seetec that the problem lay in the fact that her car was provided by Motability. We have seen no note of evidence and cannot resolve this difference; but it is right to say that it was not suggested that Mrs Barke had checked with Motability to see if there would be such a problem in the circumstances. In any event, if Mrs Barke was unreasonable in rejecting Seetec's offer to park her car for her because that would demean her, whether or not any insurance problems could have been sorted out was immaterial. Furthermore we take the view that it was not outside the legitimate exercise of the Tribunal's powers as an industrial jury for the members to bring to bear what was in no sense a specialist or recondite piece of knowledge but was one which (even on the basis that Mrs Barke's car was a Motability car) was no more than the bringing to bear, for the purpose of weighing what Mrs Barke had said, ordinary practical knowledge and experience. It would be more than a counsel of perfection for the Tribunal to have been expected to inform the parties of that everyday knowledge so that the parties could expressly deal with it. In the light of the Tribunal's findings of fact on the parking issue as a whole, we do not see that there was either of the errors of law for which Mr Hyams contends.

Working from Home

The Tribunal found, at paragraph 77, that Mrs Barke's claim that she was not allowed to work from home when her symptoms were particularly bad was based on a false premise because she was allowed to work from home by agreement with Seetec and could do so on an ad hoc basis with Seetec's permission. Only on one occasion was permission to work at home refused; and that was for a reason which did not relate to her disability; see paragraph 46 of the Tribunal's judgment. No further adjustment was required by reason of her disability; and the principle that, if Mrs Barke wanted to work at home other than as agreed, she had to obtain consent did not place her at a substantial disadvantage.

Mr Hyams willingly accepted that the findings of fact on this issue were against him and that his arguments had to be based on perversity – albeit that we have no notes of the evidence given on this issue. He drew attention to the reference in the Medic International report to Mrs Barke's needing days off at home, which it was said had not been allowed and submitted that Seetec should have appreciated the difference between her being too ill to drive to work and too ill to work and should have allowed her to work at home more without the permission procedure described by the Tribunal.

We do not accept these submissions, which amount to an attempt to re-litigate this point despite clear findings of fact wholly unfavourable to this part of Mrs Barke's case. There appears to us to have been ample material before the Tribunal to enable them to reach the findings of fact which they set out at paragraphs 44, 46 and 77 on this point. We have not been taken through the evidence to demonstrate that there was no evidence to support any of the relevant findings.

The Lunch Break

The Tribunal concluded at paragraph 78 that they accepted Ms Conway's evidence that there was no embargo on Mrs Barke's taking a half hour lunch break and working extra time, provided that they were satisfied that she was fit to do so. Mrs Barke had not wanted to work longer hours because she was fit to do so but because she wanted to make up for lost earnings and Seetec were justified in their stance that, if Mrs Barke took half an hour for lunch, she would have to leave half an hour early and there was no failure to make a reasonable adjustment.

It appears to have been common ground that Mrs Barke wanted, in effect, to work an extra half hour by taking a shorter lunch break but leaving at the same time as normal in order to make up for lost income when she was away or was working shorter hours. Mr Hyams accepted that she was asking for exceptional treatment; but she was doing so because of her disabilities; and the Tribunal ought not to have found against her on this issue when Seetec had no medical evidence to support their view that it was contrary to the interests of Mrs Barke's health that she should work for an extra half hour. He pointed out that the Tribunal had found that Mrs Barke had explained her position to Ms Conway who had rejected it because it would set a precedent; but no precedent could be set because Mrs Barke, unlike anybody else, was disabled.

Mr Gardiner drew attention to the finding in paragraph 78 that the reduced lunch break was permitted when Mrs Barke was not fully back at work and that what the Tribunal found was that, once she was fully back at work, her desire to shorten her lunch hour arose not from her disability at all but from her desire, in effect, to be permitted to work overtime.

In our judgment the Tribunal reached on this issue conclusions which were a permissible option. It was not necessary for Seetec to have medical evidence that Mrs Barke should not work an extra half hour. In the light of the whole history it was not perverse for the Tribunal, who accepted Ms Conway's evidence, to take the view that Seetec were justified in saying that if Mrs Barke halved her lunch hour she should leave half an earlier until they were satisfied that her working the extra half hour would have no adverse effect upon Mrs Barke's health. That was the crucial finding which Mr Hyams has been unable successfully to impugn. Accordingly we reject, too, this aspect of Mrs Barke's appeal.

Conclusions

(1) Insofar as the appeal is brought against the Tribunal's rejection of Mrs Barke's claims that she had been the victim of discrimination under the Disability Discrimination Act by detrimental treatment and failure to make reasonable adjustments on Seetec's part during the course of her employment, the appeal fails;

(2) There is no appeal against the Tribunal's findings as to the nature and extent of Mrs Barke's admitted disability;

(3) Mrs Barke's appeal against the Tribunal's rejection of her claim that she had been constructively dismissed and had not been the victim of disability discrimination by being dismissed, is allowed; and those claims alone are remitted for re-hearing by a fresh Tribunal.