United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NICHOLAS SPROULL (of Counsel) Instructed by: Legal Services Cornwall County Council Fourth Floor, New County Hall Truro Cornwall TR1 3AY
For the Respondent	MR ANGUS R GLOAG (of Counsel) Instructed by: Messrs Lyons Davidson Solicitors Victoria House 51 Victoria Street Bristol BS1 6AD


 


SUMMARY

UNFAIR DISMISSAL

Constructive dismissal

Employment Tribunal erred in (a) applying wrong test for constructive dismissal; (b) applying the wrong test for breach of the implied term of trust and confidence; (c) failed to adequately explain how the last straw doctrine applied to the facts of the case and (d) failed to explain adequately why the Claimant had not affirmed the contract.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal by the Devon & Somerset Fire & Rescue Service (the Respondent below) from the judgment of an Employment Tribunal sitting in Exeter in February and March 2009. The reserved judgment and reasons were sent to the parties on 11 May 2009.
2. The unanimous judgment of the Tribunal was that the Claimant was unfairly dismissed but that her claims of (a) disability discrimination (b) sex discrimination (c) breach of contract and (d) unpaid wages were dismissed.
3. At the hearing of the appeal on 20 November 2009 the Appellant was represented by Mr Nicholas Sproull and the Respondent by Mr Angus R Gloag of Counsel. We are grateful to both of them for their written and oral submissions.

The Material Facts

4. The facts are complicated and in order to understand the Tribunal's reasoning it is necessary to set them out in some detail. At paragraphs 3-8 of its judgment the Tribunal found the following facts:

"3. The Claimant was born on 18 June 1965. Her employment began on 3 June 1996 at a time when the Devon & Somerset Fire & Rescue Services were separate organisations. They became amalgamated during the course of the history that I shall outline. Initially the Claimant was employed as a Fire Control Operative. In 2001 she re-trained to become an Operational Firefighter and was stationed at Barnstaple. For a time she was transferred to Exeter but in 2003 she resumed her posting in Barnstaple. From the Respondent's point of view the Claimant's substantive posting remained at Barnstaple throughout all the matters which we have to consider.

4. In 2002 a National Strike was organised by the Fire Brigades Union. At that time the Claimant was stationed at Exeter. The Claimant was not a member of the Fire Brigades Union. However, her evidence, which was not challenged on this point, was that she did not cross any picket line mounted by that union. It seemed, nevertheless, that there was a perception amongst some of the workforce that she had done so or that she had done things contrary to the union's cause. We had no direct evidence about these matters and it is not necessary for us to make any findings of fact.

5. Following the end of the Strike the Claimant alleged that she was subjected to discriminatory treatment by some of her colleagues. It is not necessary for us to set out the details of her allegations save to say that they were the subject of a claim to the Employment Tribunals in 2005. She alleged various heads of sex discrimination. The matter proceeded to trial and evidence from the Claimant was heard by the Tribunal. However, the matter was settled during the course of the hearing on 30 October 2006 before the Respondent's evidence was heard. We have not seen the terms of settlement but it was agreed that it was a term of the settlement that the Claimant would return to work with the Respondent, she having been off sick for some time prior to the hearing. It was also agreed that the terms of settlement included a confidentiality clause.

6. The Claimant was off sick with work-related stress from 1 December 2004 until her return to work in the latter part of 2006. Immediately after the settlement of the Tribunal proceedings two emails were circulated to all staff of the Respondent. The first of these was circulated by the Branch Secretary of the Fire Brigades Union at Exeter, Mr David Chapple. This was dated 1 November 2006. Attached to it was a copy of Mr Chapple's witness statement in the Tribunal proceedings. It was circulated via the Respondent's staff email system so that it was available for all staff to see whether or not they were members of the union. The email makes the point that the proceedings had been terminated before the Respondent's evidence had been heard. Mr Chapple says:

"I am therefore concerned that the only side of this story to have been heard is the allegations made. When enough mud is thrown some may be seen to stick and this is even more likely to be the case if no response is made from those who are the subject of the allegations. I therefore believe that the DFRS (i.e. the Respondent) should now make an immediate public pronouncement on this issue rejecting the allegations made for, while both Sandy Tilke's feelings and the DFRS corporate reputation may be spared by the agreement reached, no one seems to have given a thought to the feelings of Exeter (and also to some extent Barnstaple) Firefighters who feel deeply aggrieved that they have been made the subject of hurtful and unfounded allegations without any apparent response or support from the DFRS. I believe if the DFRS does not make this response it is failing in its duty of care and those affected will have been treated simply as scapegoats or pawns in the process."

7. Mr Chapple's statement annexed to that email refutes many of the allegations made by the Claimant in the earlier Tribunal proceedings. In essence, Mr Chapple says that the Claimant ought not to have perceived many of the matters which she had alleged as having been directed at her or as having been discriminatory. She is described as over-reacting. Further to that, we quote the following passages from the statement:

"Out of all the whole time personnel at Exeter Sandy Tilke is the only one I am aware of who did not given an assurance that they would not cross the Exeter picket line… No other members of the station tried to cross the picket line during the dispute and I believe Sandy's refusal to give a commitment not to cross the picket line and/or to take unpaid leave during periods of strike action was the only reason her relationship with other members became more tense. In my view this had nothing to do with her gender or trade union activity/inactivity…"

8. The second email was circulated to all staff on 6 November 2006 by Mr Paul Young, the Chief Fire Officer, and so Head of the Respondent organisation. Under the heading "Exeter Employment Tribunal" he said as follows:

"I am sure that many of you will have seen the media coverage of an Employment Tribunal hearing in Exeter of a couple of weeks ago. The case involved a DFRS firefighter who alleged sexual harassment, sex discrimination and disability discrimination against the Service. The Service denied the allegations and that remains our position. By the end of the second day of the Tribunal it became apparent following extensive cross-examination that the case could not be proven. Both parties have, however, reached a mutually acceptable settlement and the case is at an end. The precise details of the settlement and agreement are confidential between both parties. In closing, it is important to say the Service has always regarded and continues to regard the welfare of our staff in DFRS to be of the highest importance and we all have a responsibility to ensure that everyone can feel that they are part of a fair and equitable working environment."

Although Mr Young said that the agreement between the parties was confidential, it seems to us that he expresses a clear opinion as to the merits or otherwise of the Claimant's case and he expressed those views as the Head of the Respondent's organisation."

5. There was then an exchange of letters between the Respondent and the Chief Fire Officer about those emails. The response to the Respondent's complaints did not satisfy her. The Tribunal found in paragraph 9 of its judgment that the Claimant was suffering from a disability within the meaning of the Disability Discrimination Act 1995 (as amended) and the Respondent conceded that she had such a disability. They found that it was a generalised anxiety disorder which includes a moderate severe post traumatic stress reaction with additional symptoms of reactive clinical depression and anxiety.
6. On 10 January 2007 the Claimant submitted an informal grievance to Mr Peter Newman, who was then Group Commander at Barnstaple. The grievance related to the two emails to which I have referred. There was an informal meeting with Mr Newman on 10 February 2007. The grievance is set out in writing: judgment paragraph 13. The grievance was not resolved to the Claimant's satisfaction: judgment paragraph 15, and on 7 March 2007 she issued a further grievance in respect of the emails under Stage 2 of the Respondent's grievance procedure: judgement paragraph 17.
7. On 29 March 2007 Mr Newman wrote to the Claimant setting out the result of her Stage 2 grievance: judgment paragraph 22. The Tribunal say this:

"On 29 March 2007 Mr Newman wrote to the Claimant setting out the results of her Stage 2 grievance. In relation to her complaints about Mr Chapple's email, Mr Newman says that Mr Chapple was to be made aware of the impact that his email has had and that was scheduled to be carried out by Mr Pope. In relation to Mr Young's email, Mr Newman repeats that Mr Young had the authority to inform his employees of matters which he considered important. His statement on the outcome of the Employment Tribunal reflected the Respondent's perspective. Accordingly, the grievance resolution panel did not propose to take any further action. However, Mr Newman adds that Mr Young had agreed to write to the Claimant and to meet her to re-assure her of his commitment to addressing her concerns about her welfare, particularly with regard to her return to work. Thus, with regard to Mr Chapple's email, he was to be made aware of the effect that it may have had but the email itself stood together with its effects upon the Claimant's attempts to return to work. There was to be no sanction with regard to what the Claimant saw as Mr Chapple's misuse of the Respondent's IT system. Mr Young's email was also to stand, unamended, together with its effect upon the environment in which the Claimant was attempting to return to work. It seems to us that the Chief Fire Officer's stated desire to re-assure the Claimant about her concerns was very difficult to reconcile with the effect that the email must have had upon the Claimant. It seems to us that the Chief Fire Officer either failed to appreciate or simply refused to acknowledge that impact."

8. On 30 March 2007 Mr Young wrote to the Claimant following the outcome of her Stage 2 grievance. In relation to Mr Chapple's email he says:

"I give you my written assurance here that "action will be taken against individuals who continue to abuse the Fire Service email system…."

He also says this:

"…I take the view that if the impact on an individual of a particular email is the perception is that it causes "ill-feeling and resentment" then it is irrelevant as to the actual intent of the person writing the communication."

He concludes by saying:

"I appreciate the DFRS has yet to regain your trust and confidence. I hope that with this letter, the responses that I have made and your structured phased return to work that we can go some way to re-building your trust and confidence in us to ensure that you can operate in a workplace that is safe for you."

The Employment Tribunal comment on this letter as follows:

"In that letter Mr Young does not mention his own email which we think, from the Claimant's point of view, was the more damaging of the two communications about which she had complained. Accordingly, her grievance, insofar as it related to Mr Young's email, remained unaddressed."

Judgment paragraph 25.

9. Throughout this period there were issues as to the Claimant's ability to remain at work which we have not set out in detail. They are accurately recorded in the judgment. There were reports on her by a Dr Yates and Dr Dean. There were return to work meetings on 16 March 2007, 2 May 2007, 31 July 2007 and 5 September 2007.
10. On 30 October 2007 the Claimant lodged a second grievance with the Respondent. The Tribunal found that her letter of grievance was a lengthy document but, in summary, she complains that the Respondent's handling of her return to work has had a severe impact upon her health. The Claimant was signed off work with anxiety and depression on 2 November 2007. She pursued her second grievance to a hearing and the grievance was dismissed. A subsequent appeal was also dismissed.
11. The Claimant raised a further grievance on 12 December 2007 as a result of the Respondent's failure to appoint her to a post at Exmouth upon the retirement of a colleague in September 2007. That grievance was not accepted by the Respondent's Head of Human Resources and Management Development. The final grievance appeal hearing took place on 17 March 2008. On 1 April the Claimant wrote the Chief Fire Officer requesting a Second Stage Appeal. That request was declined on 16 April 2008. The Claimant asked for that decision to be reviewed on 25 April 2008. The Respondent rejected that request on 6 May 2008. The Claimant resigned from her position with the Respondent on 13 May 2008.

The Tribunal's findings on constructive unfair dismissal

12. The Tribunal's findings appear at paragraphs 52-54 of its judgment. The Tribunal said this:

"52. That leaves the claim of constructive unfair dismissal. In this respect, in order to succeed, the Claimant must show that the employer was in breach of some fundamental term of the contract of employment, that the Claimant resigned in response to that breach and did not delay too long in so doing. In this case, as in many claims of constructive dismissal, the breach of contract relied upon is the implied term that neither party will act so as to destroy or seriously damage the relationship of trust and confidence between employer and employee. The Claimant relies first and foremost upon the two emails circulated in November 2006. Those two communications must be treated separately. That circulated by the Branch Secretary of the Union was not an act carried out by or on behalf of the Respondent. It was arguably a misuse of the Respondent's IT facilities and the issue is really what the Respondent should have done in response to that misuse. The other email emanated directly from the Chief Fire Officer, the head of the Respondent's organisation. By that email the Respondent was effectively saying to all its employees that the claim that the Claimant had brought in her first set of Employment Tribunal proceedings was without foundation and would not have succeeded if the matter had proceeded to judgment. Thus, it was said, she had brought an ill-founded and very serious claim of sex discrimination by way of victimisation and harassment against her employer and had made ill-founded allegations against many of the persons with whom she used to work. We have no hesitation at all in saying that that was an act not merely likely to destroy or seriously damage the relationship of trust and confidence but calculated to do so. The effect of Mr Chapple's email was, in effect, to tell the Claimant's work colleagues that she had raised unfounded allegations against them. That would have made it very difficult for the Claimant to work with those against whom she had made the allegations and, given the manner in which the Fire Service has to operate with different Units combining to respond to serious incidents, there was at least a considerable risk that the Claimant would have to work with those against whom she had made allegations.

53. We turn to consider the events subsequent to the sending of the emails. The Claimant lodged a grievance. After a long and difficult grievance procedure Mr Chapple was simply told not to misuse the Respondent's email system. No apology was forthcoming from him and whilst the Respondent was not in a position to tell him to offer an apology it does not appear to have been suggested that an apology would have been appropriate nor, the evidence, does it appear to have been suggested to Mr Chapple that what he had done was highly damaging to one of the Respondent's employees. We refer to the passages that we have quoted from Mr Newman's response to the grievance and from Mr Young's letter to the Claimant dated 30 March 2007. It seems to us that the highest level of the Respondent's organisation is effectively saying to the Claimant that the Respondent ignores the effect upon her of Mr Young's email. It is therefore somewhat ironic that Mr Young concludes his letter saying that he appreciates that the Respondent has yet to regain the Claimant's trust and confidence. That letter was sent on 30 March 2007 shortly after the Claimant began her attempt to return to work. Laudably, in the view of this Tribunal, the Claimant elected to struggle on. The Claimant pursued her grievance to appeal until, in May 2007, she elected to go no further, saying that she put her health and welfare first. In the following month the Claimant was medically suspended pending receipt of further medical advice. We note that thus far she had in fact only failed to attend work due to sickness on two occasions. She had been certified fit for work on 25 May. She remained fit until her medical suspension. The Claimant was suspended on paid leave on 1 October 2007. She was told that Dr Dean's complaint against her (albeit unparticularised) was to be was to be investigated. She was never told the details of that complaint nor was she invited to respond to it nor was she told that the complaint had in effect been withdrawn. Then, whilst suspended, the Claimant was told that she was to be subjected to a disciplinary procedure in relation to capability. At the end of October 2007 she raises her second grievance. She learns the outcome of that grievance on 18 January 2008 having, in the meantime, submitted a third grievance in relation to her failure to gain a transfer to a permanent post at Exmouth. On 7 February 2008 she appealed against the dismissal of her second grievance. An appeal hearing was held on 17 March 2008 and the Claimant was told of the outcome on 20 March. She sought a second stage appeal and that was refused. Mr Young's letter rejecting the second stage appeal says that having considered details of the grievance the Respondent was of the opinion that it did not constitute a serious or exceptional case where there was a possibility of major problems of culture or management style. Nevertheless the Claimant asked the Respondent to reconsider that decision. The Respondent's refusal to do so appears to us to have been the last straw. We have no hesitation in saying that the initial emails, particularly that of Mr Young, taken together with the manner in which the Claimant's complaints about them were dealt with, amounted to a breach of the implied term of trust and confidence. It is also equally clear to us, having heard to Claimant give her evidence, that she desperately wanted to resume her career as a fully operational firefighter despite the very unpleasant experiences she had undergone in 2002/2003. We consider that that desire was maintained by the Claimant right up until the time of her resignation. When the Claimant began to attempt to return to work she was met with a return to work procedure which had no real regard for her particular needs as clearly set out in the medical reports. The Respondent, through its Occupational Health Adviser, Dr Dean, had access to the fullest information about the Claimant's state of mental health. However, for reasons which are not clear, Dr Dean did not highlight to the Respondent's management the Claimant's worries about what have been referred to as triggers. This was a reference to having to work with persons or in places which brought back memories of the events of 2002 to 2003. The medical reports show very clearly that these matters were not characteristics of the Claimant but were symptoms of her medical condition, i.e her disability. We have already commented that too many people appear to have been involved in trying to manage the return to work process and that no one person in this very large organisation was given overall responsibility for managing the process. We are in no doubt that through the latter part of 2007 and the early months of 2008 the Claimant was determinately trying to pursue her second and third grievances and was doing so with a view to getting those grievances resolved in such a way that she might continue her attempts to return to operational duties. On when those attempts failed did she resign. We find that when the Claimant resigned the effect of the original emails was still operative. The Claimant did her best to get over the difficulty (albeit a major difficulty) posed to her return to work by those emails. She was repeatedly set back by the events which followed and also by the way in which her disability was managed. We do not understand the Respondent to argue that the Claimant waived the fundamental breaches of contract by delay in resignation. The breaches were still operative up to the time of the resignation and were the cause of her resignation. Up until she resigned we are quite satisfied that it was her wish to regain her operational position if at all possible. Accordingly, we find that the Claimant was constructively dismissed. The Respondent advances no potentially fair reason for the dismissal and we find that the Claimant was unfairly dismissed."

The Notice of Appeal

13. The Notice of Appeal appears at EAT bundle pages 25-32. The Respondent's answer appears at EAT bundle pages 33-41. There are seven grounds of appeal. We take each ground of appeal in turn.

Ground 1: The Employment Tribunal applied the wrong test for constructive dismissal

14. Mr Sproull submits that the test for unfair constructive dismissal cited by the Tribunal was incomplete. The Tribunal said this:

"In this respect, in order to succeed, the Claimant must show that the employer was in breach of some fundamental term of the contract of employment, that the Claimant resigned in response to that breach and did not delay in so doing. In this case, as in many claims of constructive dismissal, the breach of contract relied upon is the implied term that neither party will act so as to destroy or seriously damage the relationship of trust and confidence between employer and employee."

Judgment paragraph 52.

15. Mr Sproull submits that the Tribunal (a) omitted the "without reasonable and proper cause" test which should be inserted after "will act": see Malik v. Bank of Credit & Commerce International S.A (In Compulsory Liquidation) [1997] ICR 606 and (b) the Tribunal failed to recognise that the test is objective: see London Borough of Waltham Forest v. Folu Omilaju [2005] IRLR 35. Mr Sproull submits that it is impossible to infer that the Employment Tribunal was aware of these qualifications, much less applied them. The Respondent's case was that everything it did had a reasonable and proper cause and the Employment Tribunal failed to consider that argument.
16. Mr Gloag submits that just because the Malik case was not cited by the Tribunal does not mean it was not taken into account. In the alternative, he submits that on the facts of this case the Appellant failed to show that Chief Fire Officer Young's dissemination of his 6 November 2006 email was done with "reasonable and proper cause". He makes a similar submission in respect of the subsequent failure to address both emails. Finally, Mr Gloag says that it was not necessary for the Tribunal to set out the fact that the test for breach of an implied term of trust and confidence is objective because it is trite law.

Decision

17. We agree with Mr Sproull. Only in relation to the email from the Chief Fire Officer sent on 6 November 2006: EAT bundle page 128, did the Employment Tribunal consider whether the Appellant had a good reason for its actions. The Employment Tribunal found that the sending of the email was "calculated" to destroy trust and confidence, so presumably the Employment Tribunal felt there was no reasonable and proper cause for it: judgment paragraph 52. In fact, the finding that the email was calculated to destroy to trust and confidence is inconsistent with the finding at paragraph 22 that:

"…that Chief Fire Officer's stated desire to re-assure the Claimant about her concerns was very difficult to reconcile with the effect that the email must have had upon the Claimant. It seems to us that the Chief Fire Officer either failed to appreciate or simply refused to acknowledge that impact."

18. The Chief Fire Officer could hardly have failed to appreciate the impact if that was the effect he had deliberately hoped to achieve.
19. The email from the Chief Fire Officer was sent 18 months or so before the Claimant resigned and it was a combination of that email, the email from Mr Chapple and "the manner in which the Claimant's complaints about them were dealt with (which) amounted to a breach of the implied term of trust and confidence": Judgment paragraph 53.
20. In our judgment, the Employment Tribunal failed to ask itself the question whether the manner in which the Claimant's grievances were dealt with had a proper and reasonable cause. This is a crucial omission because if it did have a reasonable and proper cause then no matter that the Claimant and/or the Employment Tribunal did not agree with the Appellant the claim would fail. The Appellant was not bound to uphold the Claimant's grievances: its obligation was to apply its procedures and reach a reasonable decision.
21. By focusing entirely upon the effect of the Appellant's actions on the Claimant rather than whether the Appellant acted reasonably all the Claimant had to do to succeed was to prove that she had lost trust and confidence as a result of something the Appellant had done. That ignores Section 98 of the Employment Rights Act 1996.
22. Finally, by failing to recognise that the test is objective the Employment Tribunal failed to consider whether the Claimant acted reasonably in resigning 12 months after she withdrew her appeal against the dismissal of her grievance.

Ground 2: The Employment Tribunal erred in finding that there had been a breach of the implied term of trust and confidence

23. The Employment Tribunal found that "the initial emails, particularly that of Mr Young, taken together with the manner in which the Claimant's complaints about them were dealt with, amounted to a breach of the implied term of trust and confidence": Judgment paragraph 53. Mr Sproull submits that the Employment Tribunal correctly identified that the two emails had to be treated separately: Judgment paragraph 52, and that the first email, that of Mr Chapple sent on behalf of the Fire Brigades Union, was not one for which the Respondent was responsible. Having done so, it was an error of law for the Employment Tribunal then to refer to the emails in the plural as amounting to a breach of the implied term of trust and confidence.
24. Mr Sproull also challenges the finding that the email of Mr Young said that "she had brought an ill-founded and very serious claim by way of victimisation and harassment against her employer and had made ill-founded allegations against many of the persons with whom she worked": Judgment paragraph 52. Mr Sproull submits that when one looks at the email itself it simply says "the case could not be proven". The email itself appears at appeal bundle page 1-8. Mr Sproull makes further criticisms of the Tribunal in its analysis of the effects of the email which he submits were not justified on the evidence before the Tribunal.
25. Mr Gloag submits that the Tribunal were entitled to find that Mr Young's email of 6 November 2006 amounted to (or contributed to) a repudiatory breach of the Claimant's contract of employment. Mr Gloag's submits that the Tribunal's findings cannot be considered to be perverse. As far as Mr Chapple's email is concerned, Mr Gloag relies upon the conclusion of the Tribunal at paragraph 52 that:

"Those two communications must be treated separately. That circulated by the Branch Secretary of the Union was not an act carried out by or on behalf of the Respondent. It was arguably a misuse of the Respondent's IT facilities and the issue is really what the Respondent should have done in relation to that misuse."

Decision

26. We agree with Mr Sproull. In our judgment the Tribunal's finding that the two emails together constituted breach of the implied term of trust and confidence is an error of law. The Tribunal rightly decided that each email must be treated separately. It went on to say this:

"That circulated by the Branch Secretary of the Union was not an act carried out by or on behalf of the Respondent. It was arguably a misuse of the Respondent's IT facilities and the issue is really what the Respondent should have done in response to that misuse."

27. The Tribunal made no findings as to what the Respondent should have done in response to that misuse of its IT facilities. It did not consider how any alleged failure to do so amounted to a breach of trust and confidence by the Claimant either on its own or taken together with the email sent by Mr Young. The reality is that it was the content of the email sent by Mr Chapple that was so offensive to the Claimant. As the Tribunal specifically found in paragraph 52 of its judgment that "was not an act carried out by or on behalf of the Respondent." It is therefore impossible to see how the Tribunal could or should have taken Mr Chapple's email into account at all.
28. Furthermore, we have looked carefully at Mr Young's email of 6 November 2007: EAT bundle page 128, and we cannot understand how the Tribunal could characterise that as:

"Saying to all its employees that…. she had brought an ill-founded and very serious claim of sex discrimination by way of victimisation and harassment against her employer and had made ill-founded allegations against many of the persons with whom she used to work. We have no hesitation in saying at all that that was an act not merely likely to destroy or seriously damage the relationship of trust and confidence but calculated to do so."

29. In our judgment there was simply no material before the Tribunal which would entitle it to make this finding of fact or reach this conclusion.

Ground 3: The Employment Tribunal failed to give adequate reasons for its findings

30. Mr Sproull submits that in expressing its central finding that "the initial emails, particularly that of Mr Young, taken together with the manner in which the Claimant's complaints about them were dealt with, amounted to a breach of the implied term of trust and confidence" the Respondent is unable to understand why it has lost.
31. Mr Sproull expands this submission in his skeleton argument. Mr Gloag points to the fact that this judgment runs to some 24 pages, of which 18 pages are a summary of what the Tribunal consider to be the most relevant facts. Reasoning, in respect of constructive dismissal, is found at length at paragraph 52-53 which cover some two and quarter pages of the judgment. It is more than adequate.

Decision

32. We agree with Mr Gloag. The conclusions of the Tribunal on constructive unfair dismissal are set out at length. While they are open to criticism (as we have found) they set out clearly the reasoning of the Tribunal.

Ground 4: The Employment Tribunal misapplied the last straw test

33. Mr Sproull submits that the Employment Tribunal identified as the last straw the Appellant's refusal to reconsider its decision not to grant the Claimant a second stage appeal to her third grievance. The Tribunal should have assessed that act objectively and decided whether it was capable of contributing to a series of earlier acts so as to amount cumulatively to a breach of the implied term of trust and confidence. Only if it did so should it then have considered the other acts in the series of acts and asked, whether looked at together, all the acts, including the "last straw" amounted to a breach of the implied term of trust and confidence. He submits that the Employment Tribunal failed to follow this process. He submits that if they had followed that process, they would have found that the final straw was wholly innocuous and not part of a series of acts, the previous one having occurred one year ago and therefore incapable of amounting to a final straw.
34. Mr Gloag refers us to the relevant authorities in Lewis v. Motorworld Garages Ltd [1985] IRLR 465 and London Borough of Waltham Forest v. Folu Omilaju [2005] IRLR 35. Mr Gloag submits that the Tribunal correctly found that the Appellant's refusal to grant a second stage appeal to have been the "last straw" as it merely had to be the final act in a series of actions. It did not have to amount to a breach of contract and did, however slightly, contribute to the implied term of mutual trust and confidence: Judgment paragraph 53.

Decision

35. In London Borough of Waltham Forest v. Folu Omilaju [2005] IRLR 35 at paragraphs 19-22 Dyson LJ said this:

"19. The question specifically raised by this appeal is: what is the necessary quality of a final straw if it is to be successfully relied on the employee as a repudiation of the contract? When Glidewell LJ said that it need not itself be a breach of contract, he must have had in mind, amongst others, the kind of case mentioned in Woods at p671F-G where Browne-Wilkinson J referred to the employer who, stopping short of a breach of contract, "squeezes out" an employee by making the employee's life so uncomfortable that he resigns. A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase "an act in a series" in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.

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

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

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

36. The Employment Tribunal said this:

"She sought a Second Stage Appeal and that was refused. Mr Young's letter rejecting the Second Stage Appeal says that having considered details of the grievance the Respondent was of the opinion that it did not constitute a serious or exceptional case where there has been a possibility of major problems of culture or management style. Nevertheless the Claimant asked the Respondent to reconsider that decision. The Respondent's refusal to do so appears to us to have been the last straw."

37. The letter from Mr Young rejecting the Claimant's Second Stage Appeal is dated 16 April 2008: EAT trial bundle pages 129-130. The critical paragraphs say this:

"The Service does not accept your claim of any victimisation or discrimination and all of the issues raised in your letter have previously been thoroughly considered and reviewed through the grievance procedure. You specifically refer in your letter to documents that you believe were not reviewed as part of the grievance. At the appeal stage you were given an opportunity to present any additional information and this was taken into account at the meeting. The situation concerning the number of Senior Points of Contact was also covered at the appeal meeting as were the other points that you have raised. With regard to the period of sickness, I note your comments on paid leave and medical suspension.

Therefore, having considered the details of the grievance, we are of the opinion that it does not constitute a serious or exceptional case where there is a possibility of major problems of culture or management style as set out in section 15.47 of the Grievance Resolution procedure. It is therefore not appropriate to invoke the Second Appeal Stage.

The Grievance procedure is therefore exhausted and I can confirm that there are no further stages within the procedure. Having completed this procedure, I hope you can now move forward with your return to work."

38. We note that the Claimant's claims of discrimination were dismissed by the Employment Tribunal.
39. The Claimant then wrote on 25 April 2008 requesting reconsideration of that decision. The letter from Mr Neil Gibbins, Deputy Chief Fire Officer is dated 6 May 2008: EAT bundle page 130(a). It says this:

"I am writing to acknowledge receipt of your letter dated 25 April 2008. The Chief Fire Officer is currently on annual leave. However, I am the Senior Point of Contact in relation to your case. In the Chief Fire Officer's letter of 16 April 2008, he responded to you in relation to the Second Appeal Stage. I will re-iterate that the Service does not consider that this case requires the Second Stage Appeal. The procedure has therefore been completed.

The matter of your return to work and annual leave will be referred back to Paul Walker, Area Commander."

40. It was this last letter from Mr Gibbins dated 6 May 2008 that the Employment Tribunal identified as the last straw. In our judgment there was an error of law by the Tribunal in that having identified the last straw it was then obliged to consider whether, assessed objectively, that act was wholly innocuous or was capable of contributing to a series of acts so as to amount cumulatively to a breach of the implied term of trust and confidence. If it was then the Employment Tribunal should have analysed whether the acts taken together amounted to a breach of the implied term: Omilaju, supra.
41. In our judgment the Employment Tribunal failed to make any findings as to why the Appellant did not allow a second stage appeal and failed to recognise that the Appellant's evidence on that matter was not challenged by the Claimant. If it carried out the correct evaluation exercise the Employment Tribunal would inevitably have found that the act was wholly innocuous. It was not the subject of any criticism by the Employment Tribunal. The Tribunal considered that the matters relied on as amounting to a breach of contract were exclusively the emails and the manner in which the Claimant's complaints about them were dealt with. The refusal to allow a second stage appeal is not mentioned by the Tribunal as contributing to the breach.

Ground 5: The Claimant delayed too long/waiver

42. Mr Sproull submits that the Employment Tribunal found that the two emails sent in November 2006 and the way in which the Respondent dealt with the Claimant's complaints about those emails amounted to a breach of the implied term of trust and confidence: Judgment paragraphs 52-53. He submits that the Claimant's complaints about those emails were contained in a grievance which the Claimant withdrew on 24 May 2007: Judgment paragraph 34. A second grievance dated 30 October 2007 related to the Respondent's handling of her return to work as having a severe impact upon her health: Judgment paragraph 47. As the Claimant resigned on 13 May 2008, Mr Sproull submits that it is an error of law for the Tribunal to conclude that an employee can wait 12 months after the index events, then resign and then successfully claim constructive dismissal. He criticises the Employment Tribunal's reasoning that the effect of the "original emails" were still operative: Judgment paragraph 53.
43. Mr Gloag submits that the Tribunal were entitled to reach its conclusions on the last straw doctrine and hold that these collectively amounted to a repudiatory breach so that when the Claimant resigned on 13 May 2008 she did so in response to the letter from Mr Gibbins dated 6 May 2008: EAT bundle page 130(a).

Decision

44. We agreed with Mr Sproull. The correct test was laid down by the Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] QB 761 at 769 by Lord Denning MR in these words:

"The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. However, he must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract."

45. Although the Employment Tribunal makes reference to part of this test at paragraph 52 of its judgment it fails to apply it, failing even to ask itself whether the Claimant delayed too long. Had the Employment Tribunal applied this test there could only have been one conclusion, that the Claimant waited 18 months after the last act of the acts said to amount to a fundamental breach of contract (i.e. the two emails) and 12 months after she withdrew her appeal. On that basis, it would have been forced to the conclusion that the period of delay was simply too long and that she had affirmed the contract. It seems to us that the Employment Tribunal failed to appreciate that there was a clear distinction between the withdrawal of the Claimant's first grievance on 24 May 2007 which was about the content of the emails and the content of her second grievance which was about the Respondent's handling of her return to work having a severe impact on her health. That grievance was dismissed and her appeal against it was dismissed. Her request for a second stage appeal against that dismissal was refused on 16 April 2008 and her request for a re-consideration was refused on 6 May 2008. It was that refusal which the Tribunal said was the last straw. There is simply no consideration by the Tribunal as to why they found that the Claimant had not affirmed the contract.

Ground 6: The Employment Tribunal mistook the Claimant's case and failed to give the Respondent and opportunity to respond

46. Mr Sproull submits that it was not the Claimant's case that the initial emails amounted to a breach of the implied term of trust and confidence as they are not referred to in the Claimant's letter of resignation or the ET1 or by Counsel for the Claimant in his written submissions on constructive dismissal. It followed that the Respondent did not make representations on this case to the Tribunal.
47. By contrast Mr Gloag directs us to the letter of resignation dated 13 May 2008 paragraph 9: EAT bundle page 133; the ET1 at paragraph 48(h); EAT bundle page 62; and his closing submissions to the Employment Tribunal: EAT bundle page 123.

Decision

48. We agree with Mr Gloag. In our judgment it is quite clear from the references he has provided to us that this issue was part of the Claimant's case. The hearing lasted for some days and both parties were presented by competent and experienced Counsel. We can find nothing in the judgment or in Mr Sproull's skeleton argument which suggests that the Respondent was taken by surprise in the presentation of its case.

Ground 7: The Employment Tribunal took into account matters which were irrelevant

49. In the grounds of appeal and in his skeleton argument Mr Sproull suggests there were various matters which the Employment Tribunal took into account which were irrelevant in reaching its decision. Mr Gloag rejects that submission.

Decision

50. We are wholly unpersuaded by Mr Sproull's submission. We see nothing in it.

Conclusion

51. For the reasons given the appeal is allowed on grounds 1-2, 4-5 only. The remaining grounds of appeal are dismissed.

Disposal

52. It is with regret that we find we have no option but to remit this case to be tried before a fresh Employment Tribunal.