United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0177/15/BA

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 15 January 2016

                                                                            Judgment handed down on 3 June 2016

 

 

 

Before

HIS HONOUR JUDGE HAND QC

(SITTING ALONE)

 

 

 

 

 

 

MR S VAIREA                                                                                                         APPELLANT

 

 

 

 

 

REED BUSINESS INFORMATION LIMITED                                                 RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR ALEX MONACO (Solicitor Advocate) Compromise Agreements Ltd 83 Hopton Road London SW16 2EL
For the Respondent	MR MATTHEW SHERIDAN (of Counsel) Instructed by: Clyde & Co LLP The St Botolph Building 138 Houndsditch London EC3A 7AR

 

 

SUMMARY

PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke

UNFAIR DISMISSAL - Constructive dismissal

 

Reasons

The simplification of the wording of the Rule relating to the content of the Reasons (i.e. the change from Rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to Rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013) had not changed the requirement for Reasons to conform to the Rule.  Greenwood v NWF Retail Ltd [2011] UKEAT/0409/09/JOJ, [2011] ICR 896 still applied and a failure to comply with the requirements of the Rule would amount to an error of law (see paragraphs 51 to 58 of that judgment).  In order to comply with the Rule it was necessary for the requirements of the component parts of the Rule to be discoverable in the Reasons.  The approach of the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250 should continue to be the prism through which compliance with the Rule was to be viewed (see paragraphs 59 to 63 of the judgment in Greenwood).  In the instant case the Reasons took a largely narrative form and “bare” conclusions had to be connected to findings elsewhere in the Reasons but when that exercise was undertaken it could be seen that the Reasons were adequate.

 

Constructive Dismissal

There is no difference in principle between a unitary repudiatory breach of contract and a repudiatory breach of contract comprising a series of acts, which taken together, amount to a breach of the implied term as to mutual trust and confidence and the last of which amounts to a “last straw”.  This is made clear by paragraphs 20 and 21 of the judgment of Dyson LJ in London Borough of Waltham Forest v Omilaju [2005] IRLR 35 and nothing said in Addenbrooke v The Princess Alexandra Hospital NHS Trust UKEAT/0265/14/DM should be understood as contradicting that.  Affirmation by the employee after a repudiatory breach cannot be “revived” except by a further repudiatory breach and there cannot be a series of “last straws”; Safehaven Investments Inc v Springbok Ltd [1996] 71 P & CR 59, White Rosebay Shipping SA v Hong Kong Chain Glory Shipping Ltd [2013] EWHC 1355 (Comm), and Primera Maritime (Hellas) Ltd v Jiangsu Eastern Heavy Industry Co Ltd [2013] EWHC 3066 (Comm) considered and applied.

 

In the instant case the Employment Tribunal and made fundamental findings of fact as to causation, which could not be challenged on appeal and had implicitly directed itself correctly as to issues of affirmation.  Accordingly the appeal was dismissed.

 

HIS HONOUR JUDGE HAND QC

 

Introduction

1.                  This is an appeal from the Judgment and Reasons of an Employment Tribunal, comprising Employment Judge Wade, Mr Simon and Mr Skelton, sitting at London (Central) over a period of 12 days in September and October 2014, the Judgment and Written Reasons having been sent to the parties on 1 December 2014.  The Appellant’s case was heard together with that of a colleague, a Mr Amini, who has not appealed.  The two cases were interrelated, however, and I will need to refer to a limited part of the Reasons relating to him.  The Appellant’s case was that he had been subjected to a detriment on account of making protected disclosures within the meaning of section 43B and contrary to section 47B of the Employment Rights Act 1996 (“the Act”).  He also alleged he had been constructively and unfairly dismissed and the reason or principal reason for that dismissal had been his making of protected disclosures (section 103A of the Act), an essential finding in that context because otherwise he had insufficient continuity of employment to qualify him to make a complaint of unfair dismissal to the Employment Tribunal.  All these claims were rejected by the Employment Tribunal.  The Appellant was represented by Mr Monaco, his solicitor, who appeared below.  The Respondent was represented by Mr Sheridan, of counsel, who also appeared below.  Their submissions were not completed until nearly 6.00 pm, by which time it was too late to deliver an oral judgment.  I apologise for the delay in completing this Judgment.  It partly reflects the complications of the case and partly a period of ill health suffered by me around Easter.

 

The Grounds of Appeal

2.                  As was observed by HHJ Richardson when he directed this matter to go to a Full Hearing the three grounds of appeal do not deal with events in chronological order; ground 3 is the first in time.  I will summarise them, however, in the numerical order in which they appear in the grounds of appeal at pages 30 to 32 of the appeal bundle.

 

3.                  Ground 1 relates to a formal grievance raised by the Appellant on 8 November 2013 alleging that the Respondent had been unlawfully evading international sanctions in respect of its commercial transactions and that he was now suffering as a result of disclosure of that wrongdoing.  The Employment Tribunal’s decision on the substance of the grievance is at paragraph 125 of the Judgment and Written Reasons (see page 26 of the appeal bundle) in these terms:

“125. Mr Vairea also says that the company failed to properly investigate his grievance and his concerns about sanctions breaches but we do not agree.”

 

This was clearly derived from the List of Issues, which is at pages 28 to 31 of the supplementary bundle and specifically is a quotation of paragraph 1.3(o), the fifteenth allegation set out in that subparagraph of the List; it might also be implicitly related to paragraph 1.3(v) (see pages 29 and 30 of the supplementary bundle).  I will return to that List shortly.  HHJ Richardson regarded ground 1 as a complaint of inadequacy of reasoning on the part of the Employment Tribunal.  Ground 1 is not confined to that, however, because, like the other grounds, it ends “and if so, whether these detriments entitled him to resign”.  This raises the question as to whether an inadequately investigated or inadequately processed grievance can amount to a detriment, which, given that it is related to a protected disclosure, amounts, therefore, to a repudiatory breach of contract supporting constructive dismissal.  This could only arise if the Appellant succeeded in relation to his arguments that the alleged detriments relating to protected disclosure amounted to repudiatory breaches of contract. 

 

4.                  Ground 2 also relates to the Appellant’s grievance but is directed rather more to procedure than to substance.  What had happened is that the Respondent regarded the grievance as comprising two discrete parts, one relating to whether or not there had been a breach of the international sanctions procedures, which the Respondent regarded as a question of compliance, and the other relating to whether the Appellant was suffering a detriment or detriments as a result of his disclosure.  The latter was treated as a grievance and when it was rejected an appeal was entertained.  In respect of the compliance matter, however, no appeal was permitted against the conclusions, which the Appellant regarded as a rejection of his complaints.  It is not immediately clear to me whether this matter was raised as a detriment in the List of Issues, to which I have already referred; paragraphs 1.3(o) and 1.3(v) of the List come closest to doing so but neither really articulates this way of putting the detrimental conduct.

 

5.                  The Employment Tribunal concluded that the denial of the grievance procedure to the Appellant in respect of the breach of sanctions, i.e. what was regarded as a compliance issue, did not constitute a detriment to the Appellant (see paragraph 97 to 99 of the Written Reasons at page 20 of the appeal bundle).  Whilst all three paragraphs are relevant it is only necessary for me to quote paragraph 99 which reads:

“99. Her [Ms Thomas - see below] process did not fit into the framework of an HR grievance complaint so what Mr Roy had said was correct.  Indeed what the company would do following discovery of sanctions breaches was not really the Claimant’s concern nor did he have the right to know whether and why certain members of staff were disciplined because such actions would not affect him personally.  Mr Vairea did not suffer a detriment and in fact his allegations got a great deal of attention from senior staff.”

 

6.                  HHJ Richardson thought it arguable that the allocation of his complaints about breach of sanctions in general to a procedure, which did not provide for an appeal, might amount to a detriment.  He also thought it was arguable that, contrary to what the Employment Tribunal had said at paragraph 99, somebody making a complaint about matters, which they believed to be in the public interest, could have a legitimate concern in whether their complaints had been properly addressed and might suffer a detriment if they discovered that they had not been.  Nor did HHJ Richardson think it beyond argument that possibly this was not merely a procedural issue.  Like ground 1, ground 2 also raises the question as to whether this exclusion from an appeal should have been found to be a detriment having the character of a repudiatory breach and justifying a resignation.

 

7.                  Ground 3 raises as alleged detriments loss of commission arising from the alleged need to renegotiate contracts with clients and the taking over of those contracts by a manager.  The numbering of the “detriments” by the Employment Tribunal also seems to derive from the List of Issues at pages 28 to 31 of the supplementary bundle.  Only paragraphs 1.3 can be relevant and the numbering of issues adopted by the Employment Tribunal seems to correspond to the lettering in that subparagraph; so, for example, what the Employment Tribunal describes as the eighth detriment corresponds to paragraph 1.3(h) of the List of Issues.

 

8.                  Paragraph 93 of the Written Reasons deals with the alleged eighth detriment, which relates to Fransabank, in these terms:

“93. On 6 November Mr Black emailed Mr Bailey saying that a client had complained about Mr Vairea.  As a result Mr Black took over the client and renegotiated the contract at a lower price than that proposed by the Claimant.  Mr Vairea says that this was the eighth detriment.  We cannot agree.  There was a complaint and it must have been within the scope of Mr Black’s role as manager to keep the client happy by offering better terms.  Such activity does not give rise to a suspicion of detriment caused by the whistle blowing.”

 

9.                  Paragraph 96 of the Written Reasons deals with the tenth alleged detriment (corresponding to issue 1.3(j)), which related to the National Bank of Kuwait, in the following way:

“96. The tenth complaint of detriment is of Mr Black negotiating a lower price with the second client who had complained.  Our comments in paragraph 93 above apply.”

 

10.              The Appellant submitted that the alleged eleventh detriment (corresponding to issue 1.3(k)), which related to Byblos Bank, was also within the scope of ground 3, even though it was about a customer complaint rather than loss of income.  The Employment Tribunal said at paragraph 95:

“95. The ninth, eleventh and twelfth allegations of detriment are of managers informing the Claimant that clients had complained.  We have verified that clients did indeed complain and so this information cannot have amounted to detriment.  Very understandably Mr Black asked Mr Vairea to refrain from dealing with the clients who had complained.  Nonetheless discussions about his new role continued.”

 

As with grounds 1 and 2 the argument is that whether considered individually or cumulatively these amounted to detriments, resulting from the protected disclosures, and had the character of repudiatory breaches of contract justifying resignation and supporting constructive dismissal.

 

11.              When lodging the Appellant’s skeleton argument on or about 25 November 2015 an application was also made to amend the grounds of appeal by adding as ground 4 an allegation, it had been discovered after the hearing, that in 2008 Employment Judge Wade had spoken at a conference organised by Butterworths, which is an associated company of the Respondent.  It was said this gave rise to the appearance of bias.  The application also sought a further amendment as ground 5; this was, in effect, an application to adduce fresh evidence at this appeal.  The evidence dated from August 2015 and came from the Respondent’s website.  It was, so the Appellant alleged, an admission of breach of sanctions. 

 

12.              I considered these applications on paper in December 2015 and rejected them both.  The learned Judge had been a speaker at, and regular contributor to, various conferences and publications and the fact that in 2008 she had spoken at a conference organised by a company associated with the Respondent was far too tenuous a connection to give rise on the part of any objective observer to an appearance of bias.  Nor did it seem to me that there was anything new or fresh about the evidence resulting from the website posting.  It had been agreed at the Employment Tribunal hearing that it was not necessary for it to reach any conclusion as to breach of sanctions and, in any event, the material was of historic interest only and predated the Appellant’s period of employment.

 

The Employment Tribunal Reasons

13.              Broadly speaking the Reasons take a narrative form.  The factual findings, which run from paragraphs 14 to 113 of the Reasons are interspersed with conclusions, largely as to whether detriment has been made out or not.  These are preceded by a statement of the respective cases of the two Claimant employees at paragraph 1 which reads:

“1. … their case is that:

a. Mr Amini resigned in September 2013 because of [a] breach of the implied term of trust and confidence arising from the Respondent’s irresponsible and unlawful approach to international sanctions issues and

b. Mr Vairea blew the whistle in relation to those issues, was subjected to detriment and then, as a result of the detriment, was constructively and unfairly dismissed in February 2014.”

 

As I have already said, I am not concerned directly with Mr Amini, who is not the subject of this appeal.  The Employment Tribunal recognised that each Claimant had different “legal claims” but I have set out paragraph 1a because the description of Mr Amini’s constructive dismissal claim had some relevance to that of the Appellant.  The Respondent accepted that there had been two protected disclosures; the Appellant contended there had been more (see paragraph 7 of the Reasons).  In the end, the Employment Tribunal found that the only protected disclosures were the two conceded by the Respondent.  Much of the dispute between the parties focused on whether, as a result, the Appellant had been subjected to detriment.

 

14.              Paragraphs 3 to 9 comprise a self-direction as to the applicable law.  Although it appears from paragraph 4 that an agreement about what was in issue in relation to breach of sanctions came only after the evidence had been completed and during submissions, ultimately the position was the Employment Tribunal did not have to decide whether sanctions law had been breached.  Much of the short discussion about the applicable law relates to the issue of constructive dismissal, with which the Employment Tribunal was only concerned if the Appellant succeeded in relation to his arguments that the detriments relating to protected disclosure amounted to repudiatory breaches.  Only paragraphs 7, 8 and 9 relate to protected disclosures and the only real self-direction is in paragraph 8 where the Employment Tribunal deal with detriment in the following terms:

“8. A detriment is defined in cases such as Shamoon [2003] IRLR 285 HL.  It is a disadvantage which need not have physical or economic consequences.  However, an unjustified sense of grievance will not do and Tribunal must decide if the Claimant’s perception was reasonable.”

 

(a) The Facts

15.              As I have already mentioned, the section of the Reasons entitled “The facts” covers paragraphs 14 to 113.  It is a broad narrative comprising both the factual history and findings as to protected disclosures and detriments.  I am afraid that I have found it impossible to summarise it briefly.

 

16.              The Respondent, which is a UK company providing various sorts of financial information and operating on an international scale, has a product called Bankers Almanac, which it sells on subscription.  It is an old and well-respected product no longer in book form but nowadays provided electronically in a digital format.  Until November 2011 the Respondent operated under the EU sanctions regime, but it then acquired ownership of a US corporation, Accuity Inc, which provided similar services.  Accuity was subject to the wider US sanctions regime and questions arose as to whether it would be better, even though both companies would continue to operate separately, for the Respondent to comply with the US sanctions regime, particularly if the Bankers Almanac software was to be populated with data from Accuity.

 

17.              In any event, historically, even under the EU sanctions regime there had been some grey areas, particularly when the Respondent had dealings with Iranian banks; arguably there might have been past breaches of EU sanctions some years before the Appellant’s employment commenced.  The issues in the present case arose in the Middle East but not in relation to Iran.  In 2010 Byblos Bank SAL, which was essentially a Lebanese Bank (“Byblos”), bought the Bankers Almanac product.  Byblos had interests in Syria and Sudan, however, and under the then prevailing arrangement employees or agents in Syria and Sudan were entitled to use the Bankers Almanac product under the terms of the licence.  At the time the contract was entered into there was no breach of EU sanctions.  There were other problematic areas apart from the Middle East, e.g. North Korea.

 

18.              Mr Amini, the co-Claimant, started work for the Respondent on 13 June 2011.  Relatively shortly afterwards he became a key account manager in the Middle Eastern team and shortly after that he was informed that the Respondent would henceforth not be doing any business with Iran, Syria, Sudan or North Korea, although existing obligations would be honoured but “run down over the subsequent year”.  Whether or not there was sufficient clarity in the information about business with entities like Byblos Bank, which, although it was mainly located in Lebanon, a country not then subject to US sanctions, had so-called “seats” in Syria and Sudan, which were countries subject to US sanctions, was a matter of controversy for some time at the Employment Tribunal.  Although, as I have already mentioned, ultimately it was agreed the Employment Tribunal did not have to decide such issues, it was clear that the Claimants both believed that there had been a breach of sanctions.  It was the Appellant’s case that the Respondent knew exactly what it was doing and it was deliberately attempting to get around the US sanctions policy.  In view of the agreement between the parties that it need not decide whether there had been breaches of sanctions it is arguable the Employment Tribunal did not need to make any finding about this.  Nevertheless, it rejected the contention the Respondent was deliberately attempting to circumvent the US sanctions regime (see paragraph 26 of the Reasons at page 6 of the appeal bundle).

 

19.              After the acquisition in 2011 there was one new transaction, just a few days later, that might have been in breach of US sanctions; this was a contract with the Central Bank of Syria, which expired the following November.  Also there was one example of what might be called “indirect selling” to sanctioned countries when, in June 2012, there was a sale to Arab Bank, which had offices in Syria and Sudan, with employees located there being entitled to use the licence.  The Employment Tribunal accepted that the manager responsible for the sale had been given advice at the time that such “indirect selling” was not in breach of US sanctions (see paragraph 30 of the Reasons at page 7 of the appeal bundle).  The Arab Bank contract ended in June 2013.

 

20.              On 20 June 2012, so at more or less the time of this transaction, although I do not understand him to have had involvement in it, the Appellant started working for the Respondent as a key account manager.  He was on the same team as Mr Amini.  Both men were located in the UK but were managed from Dubai.  In June 2013 the Respondent, which hitherto had dealt with compliance by a Compliance Committee, comprising various senior staff and utilising the resources of the legal department on an ad hoc basis, appointed a dedicated Compliance Officer, Ms Deborah Thomas.  She did not take up her post until September 2013.

 

21.              By that time the Appellant and Mr Amini had started looking into the “indirect selling” issues, to which, for example, the Byblos transaction gave rise.  On 23 July 2013 the Appellant asked a member of the Respondent’s legal team about a proposed transaction with the Housing Bank of Trade and Finance, which is located in Jordan but had a subsidiary in Syria, and which specifically wanted to have access to the products of Accuity, the US corporation.  Advice from both the United States and the UK legal teams was to the effect that services should not be provided to Syrian subsidiaries.  On the same day advice came from the United States about the cancellation of a contract with Al Hilal Exchange and the following day the Appellant gave instructions for the contract to be cancelled.

 

22.              More generally, there seems to have been a discussion as to whether, in similar situations licenses in respect of Syrian subsidiaries or “seats” should be cancelled.  Further legal advice, contradictory to the earlier advice, was provided and matters moved somewhat slowly.  On the sales side there was an internal debate.  Both the Appellant and Mr Amini suggested to the Employment Tribunal that their manager had proposed that “indirect selling” should continue in US sanctioned countries but this was rejected by the Employment Tribunal (see paragraph 51 of the Reasons at page 11 of the appeal bundle).

 

23.              On 12 August, 2013 the Appellant had a meeting with a Ms Cook of HR.  It was accepted by the Respondent that during the meeting he made a protected disclosure to the effect that the Respondent had “been providing licenses to embargoed countries and violating international sanctions which may be a criminal offence” (see paragraph 53 of the Reasons at pages 11 and 12 of the appeal bundle).  Ms Cook said that the Compliance Committee would investigate; the Employment Tribunal rejected the Appellant’s contention made at the hearing that this amounted to sweeping the issue under the carpet (see also paragraph 53).  The position was clarified on 18 August 2013 by an email from the manager of the Middle East team, Mr Black, saying that he hoped to get definitive advice in September and in the meantime giving an instruction to the sales team that they were not to sell new licences, or renew existing licences, to “seats” in US sanctioned countries.

 

24.              Mr Amini resigned on 6 September, 2013 on the basis that the “indirect selling” in Syria amounted to the direct provision of services into a US sanctioned country and (see paragraph 61 of the Reasons at page 13 of the appeal bundle) that his position had:

“… become untenable due to an ethical, moral and professional obligation to disassociate [himself] from such activities.  I do not wish to be associated with a business unit that has supported sanctioned entities directly or indirectly.”

 

The Employment Tribunal found that his resignation triggered action on the part of senior managers who hitherto had not been involved (see paragraph 61 of the Reasons at page 13 of the appeal bundle).  At least one, Mr Jones, had reacted in a way that indicated he did not completely understand the issues (see paragraph 62 of the Reasons at page 14).  When, however, an investigation revealed that the extent of the problem (i.e. Byblos) was three licenced “seats” in Syria and two in Sudan he gave instruction that this situation was to cease.  As the Employment Tribunal put it, the seats were “shutdown” on 8 September 2013.  On 12 September 2013 at a meeting between the Appellant and Mr Roy, the Global HR Director, there was a discussion during the course of which the Appellant made what the Respondent accepted was another protected disclosure (see paragraph 70 of the Reasons at page 15 of the appeal bundle).

 

25.              Mr Muttram a Senior Executive then investigated and after discussion with the legal advisers he told the Appellant on 16 September 2013 that because what had been licensed to Byblos Bank was “a British product and was not susceptible to the US jurisdiction” the situation did not breach US sanctions.  As part of attempts made to persuade Mr Amini to withdraw his resignation, he was told the same thing.  He did not agree with this reasoning because the Bankers Almanac was being populated with US data, although he accepted that it was “informational data and that might not break the sanction”.  The Appellant, who was present at this meeting, did not agree that the character of the data would make any difference and maintained his position that there had been breaches of the sanctions policy.  In the event, Mr Amini could not be persuaded to withdraw his resignation and he left on 6 October 2013. 

 

26.              Whilst this legal debate was continuing the managers of the sales teams had taken the pragmatic and more decisive stance of closing down any licensed “seats” in the US sanctioned countries.  This policy applied with effect from 26 September 2013 and was reinforced on 29 October 2013 by an email sent to all staff.  At the beginning of October 2013 Ms Thomas, the new Compliance Officer, started work.  One of her first tasks was to look into this problem of “indirect selling” into US sanctioned countries.  She did so on an independent basis (see paragraph 98 of the Reasons).

 

27.              The Appellant had a day’s sick leave on 26 September 2013.  This provoked an informal inquiry into his level of absence and his recording of absence.  The Appellant regarded this as the start of a series of incidents, in effect, forming an orchestrated campaign against him.  There were twelve in all and he regarded each as being a detriment to which he was subjected by the Respondent because of his protected disclosures.  Given the scope of the grounds of appeal, which only complain about the Employment Tribunal’s findings in relation to alleged detriments 8, 10, 11 and 12, there is no point in me setting out the factual detail of each alleged detriment.

 

28.              Within the scope of the grounds of appeal, however, is the email of 6 November 2013 from Mr Black to Mr Bailey asserting that a client, Fransabank, had complained about the Appellant.  Mr Black’s reaction was to negotiate a lower price with that client.  This is the alleged eighth detriment.  The Employment Tribunal dealt with this at paragraph 93 of the Reasons (see page 19 of the bundle) by finding that it was not a detriment for Mr Black to have taken over and negotiated a lower price.  This was because, given there had been a complaint, it was something “within the scope of Mr Black’s role as manager to keep the client happy by offering better terms” and that “such activity does not give rise to a suspicion of detriment caused by the whistle blowing”.

 

29.              The Employment Tribunal looked at the tenth alleged detriment, renegotiation of a lower price with the National Bank of Kuwait, in exactly the same way.  This was dealt with at paragraph 96 of the Reasons and at the hearing of this appeal Mr Sheridan agreed it was within the scope of ground 3.  Similar, but not the same, are the allegations of detriment characterised as being the ninth, eleventh and twelfth detriments.  They all relate to alleged complaints by clients and the Employment Tribunal dismissed all of them on the basis that there had indeed been complaints, with the result that the Employment Tribunal concluded “so this information cannot have amounted to detriment”.  This was dealt with at paragraph 95.  There was some controversy at the hearing of this appeal as to whether or not this twelfth complaint about Byblos was within the scope of ground 3.

 

30.              Also characterised as a detriment by the grounds of appeal is the formal grievance raised by the Appellant to Mr Roy, the Global Head of HR, on 8 November 2013 alleging that he had suffered detriments because of whistle blowing.  The complaint is that the Respondent split off the allegations of breach of sanction from the grievance and directed them to Ms Thomas’ compliance investigation.  The Employment Tribunal’s view of it as not being detrimental is set out at paragraph 99 of the Reasons (set out above at paragraph 5 of this Judgment).

 

31.              On 12 December 2013 the Appellant’s grievance that he had been victimised intimidated and bullied as a result of the protected disclosures he had made in the Autumn was rejected.  As a result the Appellant filed an ET1 form alleging that he had suffered detriments from whistle blowing.  He also appealed against the rejection of his grievance.

 

32.              In the meantime the Appellant had himself become the subject of an investigation because by now there were three complaints from clients about him (Fransabank, National Bank of Kuwait, and Byblos).  The Appellant’s conduct was investigated by Mr Taylor.  In the Appellant’s view the latter exonerated him; the Employment Tribunal did not think that was “quite correct” (see page 104 of the Reasons) although it accepted that Mr Taylor had concluded the charges, which the Appellant had agreed with the clients, were reasonable charges.  In any event, nothing more happened than a review of his communication style.  This outcome was communicated to him on 15 January 2014 and on the same day Ms Thomas sent him the result of her investigation.

 

33.              She had concluded that there was no systematic breach of sanctions by the Respondent, something which the Employment Tribunal accepted, at least implicitly, as a reasonable conclusion.  Her statement was quoted by the Employment Tribunal at paragraph 100 of the Reasons as follows:

“From [my] initial searches, I was able to identify quickly that there was no issue with the vast majority of the 25 transactions on his schedule.  Some of the named entities had not actually entered into any contract to subscribe to our products.  For others, where there were contracts, the entity was either never sanctioned in the UK or EU or the sanction came into force after the business had ceased to trade with it.  It therefore seemed to me that Mr Vairea did not fully understand the sanctions that applied to the business or when certain sanctions had come into force.  I also found that, with the exception of Al Hilal Exchange which was terminated on 24 July 2013 (and which in any event was not sanctioned by the EU), the allegations related to historical Bankers Almanac transactions in the sense that the contracts in question had either expired or been terminated by the time Mr Vairea initially raised his concerns (July 2013).  A number of them also predated the acquisition of Accuity Inc in November 2011.  It was clear to me Mr Vairea had been carrying out searches of the systems to look for the transactions he had set out in his schedule, as they were not live contracts (in the sense that they had all expired).”

 

The Employment Tribunal summarise the rest of her statement as being that the Respondent “was not dealing with more than a handful of expired contracts which required further analysis and that there was certainly no form of systematic or deliberate breach of sanctions across the business”.  Her five conclusions, as communicated to the Appellant, were set out by the Employment Tribunal at paragraph 109 of the Reasons.  In her view there had been no breach of US sanctions and any breaches of EU sanctions were in the past and not current.  At the hearing the Respondent’s position was that there had been no breach of any sanctions, something which seemed reasonable to the Employment Tribunal.  It felt itself to be insufficiently qualified, however, to make any judgment on that (see paragraph 110 of the Reasons).

 

34.              The Appellant wrote to Ms Thomas “challenging her conclusions” (see paragraph 112 of the Reasons).  His appeal against the rejection of his grievance was itself rejected on 7 February 2014.  He said clearly at the Employment Tribunal hearing that he did not regard this as a detriment.  He resigned on 11 February 2014.

 

(b) The Section Entitled Conclusions

35.              The fact that detriment had been found not to have been made out is repeated at paragraph 122 in the section of the “Conclusions” that relate to the Appellant (see paragraphs 121 to 127).  Paragraphs 126 and 127 relate to constructive dismissal, which, as I have endeavoured to explain above when discussing the grounds of appeal, was dependent on whether the Employment Tribunal made any error in relation to detriment and/or its causation.  At paragraph 126 the Employment Tribunal looked at the resignation from the chronological standpoint saying:

“126. Finally, in relation to the alleged constructive dismissal we cannot identify any even potentially detrimental activity which occurred after the Claimant submitted his detriment claim on 26 December whilst still in employment.  This means that there was no further detriment to trigger the decision to resign on 11 February.  The Claimant changed his mind and resigned but not in response to a new detriment.  By that date the sanctions policy was in place, training was mandatory, Deborah Thomas had answered his concerns (although not to his satisfaction) and he had a new role.”

 

At paragraph 127 the Employment Tribunal referred back to what it had said about Mr Amini’s resignation at paragraph 120.  Once again, I have to confess to finding this somewhat difficult to follow.  The only part of it which, it seems to me, the Employment Tribunal could have also applied to the Appellant is the last part of the first sentence which reads “looking at the situation overall it is clear to us that Mr Amini had not suffered a breach of trust and confidence when he resigned”.

 

36.              This can be connected to the first sentence of paragraph 127, which reads in full:

“127. Looking at Mr Vairea’s position overall our comments relating to Mr Amini in paragraph 120 apply.  Moreover, Mr Vairea made the positive decision on 18 September after Mr Amini resigned that he wished to continue working for the company.  After that date his grievance was not upheld but strenuous efforts were made to involve him in the high level work being done as a result of his concerns to check out the sanctions situation and to provide comfort for the future.  In his evidence Mr Vairea was not able to make a link between whistleblowing detriment and sanctions.  Like Mr Amini he told us that the main factors leading to his resignation were the company’s sanctions breaches in the past and their failure to say sorry; that may well been so but unfortunately for him that means the detriments were not the reason and his claim must fail.”

 

37.              Returning then to paragraphs 121 to 125, paragraph 121 sets out what the Employment Tribunal envisaged was the Appellant’s task, namely “to show that he suffered detriments as a result of blowing the whistle and that he had resigned as a result of those detriments.”  Paragraph 122 is in these terms:

“122. We have gone through 12 of the detriments alleged in our findings of fact and identified that the claims are not made out.  In addition to those specific complaints Mr Vairea made a number of more general complaints about working in an environment where sanctions were breached and he repeated a number of Mr Amini’s issues.  These included being asked to contravene the Respondent’s policy on sanctions, having a cavalier attitude, not reporting to the relevant regulators etc.”

 

38.              At paragraph 123 the Employment Tribunal concludes:

“123. We have already found that these allegations are not substantiated.  We have also discussed the allegation which has more substance: that the company did not have any procedure in place to police sanctions issues.  In Mr Vairea’s case this allegation is not sustainable at all because there is no link between the long history that we have set out in relation to sanctions starting in November 2011 and Mr Vairea’s alleged protected disclosures beginning in July 2013.”

 

The second and third sentences of paragraph 123 must relate to paragraph 1.3(s) in the List of Issues (see page 29 of the supplementary bundle).  The unsubstantiated allegations referred to in the first sentence are more difficult to identify.  I take it that “12 of the detriments” in the first sentence of paragraph 122 relate to paragraphs 1.3(a) to 1.3(l) and the “more general complaints” relate to paragraphs 1.3(m) to 1.3(y) in the List of Issues.

 

39.              At paragraph 124 the Respondent’s reaction to his complaints is dealt with in these terms:

“124. Further, there is no evidence that the company reacted badly to his concerns.  Managers of great seniority dealt with them, he was thanked for making his allegations and he was accommodated in his career aspirations.  Hugh Jones made clear in his announcement on 29 October 2013 that he welcomed interventions from staff.  His direct managers were increasingly unhappy about his behaviour, for example Mr Bowen thought that the complaints had arisen because the Claimant did not care about his clients any more because he knew he was leaving, but they had good grounds for this.” 

 

Although this is very compressed it draws a clear distinction between the attitude of senior management and that of junior management.  The former was positive and although no comment is articulated, it seems a reasonable implication that the Employment Tribunal concluded the evidence as to the attitude of senior managers provided no support for allegations of detrimental treatment.  The attitude of junior managers was less positive but the Employment Tribunal concluded this was on “good grounds”, which is open to the interpretation it was due to the Appellant’s attitude towards clients rather than his having made protected disclosures.

40.              Whether paragraph 125 (quoted above at paragraph 3 of this Judgment) is meant to be an additional comment on the allegations of detriment already dealt with at paragraphs 122 and 123, or addresses different allegations, is difficult to fathom.  The wording is more or less identical to that in the issue identified at paragraph 1.3(o) (see page 29 of the supplementary bundle).  The wording might also be wide enough to encompass some of the other allegations to be found within the broad range of paragraphs 1.3(o) to 1.3(y) (see pages 29 and 30 of the supplementary bundle).

 

(c) The Employment Tribunal Reasons in Summary

41.              From the above I can summarise the Reasons by saying that the Employment Tribunal found there to have been two protected disclosures; the first made to Ms Cook of HR on 12 August 2013 (see paragraph 53 of the Reasons); the second made to Mr Roy, the Global HR Director, on 12 September 2013.  The Employment Tribunal did not find the Appellant to have suffered any detriment as a result; it did not accept that the Appellant had suffered detriment but, if he had, it did not accept this was because he had made either of the protected disclosures.  Finally, on both the analysis made above and the specific evidence relating to resignation, the Employment Tribunal rejected constructive dismissal.

 

The Appellant’s Submissions

42.              In sifting this case to go forward to a Full Hearing HHJ Richardson regarded ground 1 as essentially raising an issue of inadequacy of reasoning as the error of law, which was reasonably arguable at a Full Hearing.  Not surprisingly, therefore, in support of his argument in the context of ground 1 Mr Monaco referred me to Meek v City of Birmingham District Council [1987] IRLR 250, which is one of the Familiar Authorities of this Tribunal.  He argued, however, this failure to set out adequate reasoning also applied to grounds 2 and 3.  Consequently, inadequacy of reasoning was one of the overarching themes of his submissions.  But there was a second theme running through all his submissions, namely that as well as not setting out the reasoning which supported the conclusions reached, insofar as there was reasoning to be discerned in the Reasons read as a whole, the facts found by the Employment Tribunal could not support the conclusions reached.  There was, however, some controversy as to whether all the points being raised by Mr Monaco were within the scope of the appeal.

 

43.              Ground 3 presented an example of this.  It included not only the renegotiation of contract prices with Fransabank and the National Bank of Kuwait, with the resultant loss of commission to the Appellant, but also the same situation in relation to Byblos Bank.  This did not appear in the List of Issues or in the Amended Particulars of Claim, and the Respondent contended it had only been raised by ground 3 of the grounds of appeal and had not been ventilated at the hearing.  Mr Monaco asserted that it had been raised in cross-examination and as a result Employment Judge Wade had re-produced part of her notes (see page 92 of the appeal bundle); even so it is by no means immediately obvious how the questions and answers recorded in that part of the note relate to Byblos.  Mr Monaco submitted that the point had been raised generically; the specific point relating to Byblos was not a very significant issue and so it was not in the spotlight.  Nevertheless, it was a very obvious point; it showed all the characteristics of the Fransabank and National Bank of Kuwait issues and ought to have been considered by the Employment Tribunal in the same way as the other two.  In other words, although it is only referred to in the context of a client complaint by the Employment Tribunal, the result was the Appellant had lost income in relation to Byblos in exactly the same way as he had lost income in relation to the other two and it should have been considered as a detriment.

 

44.              Mr Monaco submitted that paragraph 93 of the Reasons (see above at paragraph 28 of this Judgment) was inadequate as an explanation as to why negotiating the contract prices, with the consequential loss of commission income, was not a detriment.  Nor was it an adequate explanation as to why that conduct had not been “done on the ground” that the Appellant had “made a protected disclosure” (see section 47B(1) and (1A) of the Act).  The need for an explanation was overwhelming to the extent that even though this matter had not been put specifically to Mr Taylor in cross-examination, it was nevertheless the duty of the Employment Tribunal to consider it, which it had failed to do.

 

45.              In relation to ground 2 Mr Monaco placed considerable emphasis on the evidence of Mr Taylor, who it will be remembered had conducted an investigation into the complaints made by Fransabank, National Bank of Kuwait and Byblos (see above at paragraph 32 of this Judgment).  In that investigation Mr Taylor had concluded that the original prices negotiated by the Appellant had not been unreasonable.  Mr Monaco submitted any reduction in rates must be evidence of detriment because it amounted to unwarranted interference in the business carried out by the Appellant and resulted in him suffering a loss and it was not open to the Employment Tribunal to reach any other conclusion.

 

46.              He also made specific points about the evidential material relating to ground 2.  It had been argued at the Employment Tribunal that the Respondent’s failure “to properly investigate the Claimant’s grievance and his concerns regarding alleged sanctions breaches” amounted to a detriment (see both paragraph 1.3(o) of the issues at page 29 of the supplementary bundle and the Amended Particulars of Claim at paragraphs 76 to 87 at page 61 of the appeal bundle).  In relation to that, firstly, the Employment Tribunal had never dealt with the Respondent’s failure to comply with the timescale laid down for the grievance procedure; delay was manifestly a detriment.  A controversy arose as to whether this had been put at the hearing before the Employment Tribunal or whether Mr Monaco had been stopped by Employment Judge Wade from developing the point.  As to the former Mr Monaco submitted that it had been raised at paragraph 43 of the Appellant’s closing submissions to the Employment Tribunal (see page 90 of the supplementary bundle).  As to the latter, a question arose as to whether the proper procedure, as set out in paragraph 13 of the Practice Direction (EAT Procedure) 2013, for raising such a matter had been followed.  Secondly, the Employment Tribunal had not considered whether the managers who dealt with the grievance procedure had been properly appointed in accordance with the provisions of the grievance procedure.  Thirdly, there were two whistle blowing policies never produced to the Employment Tribunal, which had not dealt with the point.  In this context also, there was a similar controversy as to whether the matter had been raised during the course of the hearing.

 

47.              Mr Monaco’s main point in relation to both ground 1 and ground 2, however, was that the refusal by the Respondent to recognise and investigate these complaints about breaches of sanctions and about what the Appellant perceived were detriments resulting from his complaints in itself amounted to a detriment and that the Employment Tribunal had simply failed to acknowledge this.  There was considerable overlap between the two grounds.  The grounds attached to the Notice of Appeal appeared to draw a distinction between substance (ground 1) and procedure (ground 2) and, to an extent, this distinction was continued in Mr Monaco’s oral submissions but grounds 1 and 2 were seen by him as very much different sides of the same coin and the distinction was never clearly maintained.  Moreover, he argued that the Employment Tribunal had also not accepted that the terms and conditions of the Appellant’s contract of employment made the grievance procedure contractual or guaranteed that he was entitled to appeal or that it also provided for a second appeal.  So far as his grievance was concerned, he had never been allowed that second appeal and he never been allowed any appeal at all in relation to his sanctions complaint.  Again, there was controversy as to whether this had been argued before the Employment Tribunal.

 

48.              The Employment Tribunal had never explained why the way the Appellant had been treated in relation to the grievance procedure did not amount to a detriment and its approach was contrary to that of the Court of Appeal in Deer v University of Oxford [2015] EWCA Civ 52 (see the judgment of Elias LJ at paragraph 36).  Nor had it explained why the failure to conduct the grievance procedure properly and in accordance with its terms did not amount to a breach of contract.  In Bracebridge Engineering Ltd v Darby [1990] IRLR 3 this Tribunal regarded the failure to treat seriously an allegation of sexual harassment as amounting to a repudiatory breach of contract.  In Goold (Pearmak) Ltd v McConnell [1995] IRLR 516 this Tribunal also accepted a failure to deal with grievances under a grievance procedure could amount to a repudiatory breach of contract.  This was a breach of the implied term as to mutual trust and confidence, which was a thread running through the case and which should have been considered under the “last straw” doctrine as having survived any affirmation and still been a live breach in February at the time of the resignation.  The Employment Tribunal had never considered this approach despite Mr Monaco having set it out in his closing submissions, a contention, which proved controversial, so far as the Respondent was concerned.

 

49.              Mr Monaco also criticised the way in which Ms Thomas had investigated the breach of sanctions complaint.  By the time she did this, Mr Amini had resigned but the Appellant had made Mr Amini’s complaints of breach of sanction part of his own complaint about breach of sanction by appending Mr Amini’s witness statement to his grievance.  Mr Amini had been willing to be interviewed but Ms Thomas had neglected to do so.  Moreover, she had failed to provide any proper explanation as to why there had been no breach of US sanctions.  The Employment Tribunal had never explained why it concluded that the Appellant was not at any risk of being held personally liable in respect of breach of sanctions or why it was reasonable for Ms Thomas to reach that conclusion or why the publication of her conclusions did not amount to a last straw or a revival of previous breaches.

 

50.              In summary, therefore, the Appellant’s case was that the Respondent both procedurally and substantively had failed to deal with the grievances, raised by the Claimant in respect of both detriment and breach of sanction.  This was itself a detriment, as was the lack of response to his various grievances.  There had been a cover-up, which, despite the fact that it was blindingly obvious, the Employment Tribunal had failed to recognise as being because he had made protective disclosures to the effect that the Respondent was acting in breach of sanctions.  Ms Thomas was part of that cover-up.  Detriment arising from delay in the process had not been properly considered by the Employment Tribunal and the reduction in commission was also blindingly obvious as amounting to a detriment.  An error of law arose as a result of the inadequate reasoning and lack of explanation by the Employment Tribunal and due to it having ignored the blindingly obvious.

 

The Respondent’s Submissions

51.              Mr Sheridan also made an overarching submission.  His was based on the fact that the Employment Tribunal had reached the conclusion there was no causal connection between the complaint about breach of sanction and any of the alleged detriments.  He submitted this was an unassailable conclusion on the factual material and it represented what he called “a knock out blow” to the Appeal.  He commended, as being entirely correct, the Employment Tribunal’s analysis of the way the matter should be approached in paragraph 9 of the Reasons, which reads:

“9. We decided first to look at whether or not Mr Vairea had suffered any detriments, then to look at the reason why he had suffered them and finally to decide whether there was a connection between any detriments and the resignation.”

 

That analysis had been implemented using the factual findings made by the Employment Tribunal at paragraphs 42, 44, 45, 51, 56, 66, 68 and 71 of the Reasons and led to the logical conclusion set out in paragraphs 124 and 127 of the Reasons.  This amounted to a series of inferential conclusions open to the Employment Tribunal on the evidence it had heard and its findings.  These can be summarised as accepting the attitude and actions of the managers Mr Black, Mr Bowen and Mr Bailey as being reasonable and conscientious and accepting the enquiry conclusions of Mr Muttram as being entirely reasonable.  There was no evidence of any pressure being put upon the Appellant (see paragraphs 43 and 45).  Furthermore, there was no evidence of unhappiness, defensiveness or resentment on the part of management as a result of the concerns being raised by the Appellant (see paragraphs 53, 67, 76, 77 and 80, which captured the attitudes of Mr Bowen, Mr Muttram and Mr Bailey).

 

52.              There was no evidence of the Respondent being difficult in relation to the Appellant.  On the contrary, his wish not to be relocated to Dubai had been accommodated when it would have been extremely easy for the Respondent to insist on him relocating.  Moreover, there was a finding by the Employment Tribunal that the Respondent genuinely wished the Appellant to remain employed (see paragraph 90 of the Reasons).  Nor did the Respondent seek to exploit the fact that there had been complaints about the Appellant from customers when it would have been easy to do so (see paragraph 102 of the Reasons).  The conclusion drawn by the Employment Tribunal that it would have been possible for the Respondent to make a great deal more of the finding that he had been somewhat aggressive in his sales style was a conclusion open to it on the factual material.  It was also important evidence pointing away from any connection between the Appellant’s complaints and adverse treatment by the Respondent.

 

53.              Mr Sheridan also submitted that there was no basis for the Appellant’s characterisation of the Respondent as being cavalier in relation to sanctions.  Before any complaints were made the Respondent already had a Compliance Committee and it had decided to recruit Ms Thomas before any complaint was made.  Moreover, the Respondent had introduced new policies and new training procedures before the Appellant resigned in February 2014; these developments were global and widely publicised (see paragraphs 91 and 111 of the Reasons).  One of the critical findings, which the Appellant could not escape, was at paragraph 91 where the Employment Tribunal described the Respondent’s global workplace as a comfortable environment for whistle blowers.  Mr Sheridan submitted that was a fatal blow to the Appellant’s causation argument and there was no basis to support the argument that the Employment Tribunal was not entitled to reach that conclusion on the evidence.

 

54.              What all this demonstrated, submitted Mr Sheridan, was that the Appellant’s case, when properly understood, amounted to nothing more than an allegation that the decision of the Employment Tribunal was perverse.  In Mr Sheridan’s submission the Appellant’s argument could not cross the perversity threshold.

 

55.              That not only disposed of detriment and causation, it also disposed of any argument that unfair constructive dismissal could be connected to the complaints that had been made.  In the circumstances of this case the making of the protected disclosures must be the reason or, at least, the principal reason, for the dismissal; putting it another way, the Appellant must prove that he had resigned on account of a detriment resulting from his protected disclosures.  Before this Tribunal could interfere, I would have to conclude that the Employment Tribunal had not dealt with “the principle important controversial points” (see High Table Ltd v Horst and others [1998] ICR 409 at page 420F and Monji v Boots Management Services Ltd UKEAT/ 0292/13/SM at paragraph 50 of the judgment).  He accepted that the parties needed to know why they had won or lost, but they must be taken to know and understand the arguments and the points at issue.  Therefore, not absolutely everything needed to be articulated as if they were complete strangers to the dispute (see the judgment of a division of this Tribunal presided over by Keene J in Derby Specialist Fabrication Ltd v Burton [2001] IRLR 69 at paragraph 32 page 73).

 

56.              Consistent with the approach that is sketched out at paragraph 9 of the Reasons, the Employment Tribunal had asked the entirely correct question as to whether the resignation was in response to a detriment suffered as a result of the protected disclosures.  The conclusions at paragraph 126 and 127 of the Reasons were unimpeachable; there had been no new detriments since December 2013 and the Employment Tribunal was entitled at paragraph 126 to reach the conclusion that the Appellant had “changed his mind and resigned but not in response to a new detriment”.  This was emphasised in paragraph 127 by the last sentence which reads:

“127. … Like Mr Amini he told us that the main factors leading to his resignation were the company’s sanctions breaches in the past and their failure to say sorry; that may well have been so but unfortunately for him that means the detriments were not the reason and his claim must fail.”

 

This was a specific evidential conclusion.

 

57.              In any event the Appellant’s argument was that a “last straw” led to his resignation.  He had been thinking of resigning since September 2013 (see paragraphs 70 and 71 of the Reasons) and in December 2013, after his grievance had been rejected, he had presented a claim to the Employment Tribunal complaining of protected disclosures.  He accepted that the rejection of his appeal was not a detriment (see paragraph 112 of the Reasons).  Consequently, his case on constructive dismissal was undermined by the lack of any connection between his resignation in February 2014 and the last of the detriments, namely the rejection of his grievance.  Mr Sheridan referred to the judgment of the Court of Appeal in London Borough of Waltham Forest v Omilaju [2005] IRLR 35 where, in the judgment of the court given by Dyson LJ, paragraph 20 makes clear that

“20. … The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. …”

and paragraph 21 reads:

“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 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.”

 

This, submitted Mr Sheridan, encapsulates completely the situation in the instant appeal and, although briefly expressed in the Reasons, this is why the Employment Tribunal did not find constructive unfair dismissal here.

 

58.              Mr Sheridan accepted that some of the expressions used by the Employment Tribunal were inaccurate.  It was unnecessary hyperbole for the Employment Tribunal to go so far as to say that there was no “potentially detrimental activity” (see paragraph 126 of the Reasons quoted above at paragraph 35 of this Judgment.  But the Employment Tribunal had considered the two significant events in 2014; one, the dismissal of his appeal against the rejection of his grievance, he had conceded was not a detriment (see paragraph 112 of the Reasons); the other, the conclusions reached by Ms Thomas in her investigation, could not of themselves amount to repudiatory breach(es) of contract.  The Employment Tribunal had considered whether any of the conduct relied upon amounted to detriment.  At paragraph 8 of the Reasons the Employment Tribunal had correctly directed itself in terms of the judgment of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 (paragraph 8 is clearly drawn from paragraph 34 of Lord Hope’s speech).  There is no basis for thinking that the Employment Tribunal had failed to follow that self-direction; on the contrary the Court of Appeal in Crawford v Suffolk Mental Health Partnership NHS Trust [2012] IRLR 402 had warned against too readily making any such assumption (see paragraph 28 of the judgment of Elias LJ at page 405).  Unless the contrary appears clearly from the material, the Employment Tribunal should be presumed to have followed the approach it had identified in directing itself as to the law.

 

59.              So far as ground 1 of the grounds of appeal was concerned, Mr Sheridan submitted that the Employment Tribunal had dealt with the grievance procedure in some considerable detail (see paragraphs 101, 105, and 112 of the Reasons).  In this context he reiterated the Appellant’s concession at paragraph 112 that the decision by Mr Mitchell as to the adequacy of the grievance procedure did not amount to a detriment had been noted specifically by the Employment Tribunal.  Also it could not be emphasised too much that the evidence of Mr Mitchell and Ms Cook about the grievance procedure, amongst other things, had never been challenged.  So far as the investigation into breach of sanctions was concerned, Mr Sheridan took issue with the analysis of HHJ Richardson that it was arguable the Employment Tribunal had not sufficiently engaged with the issues at paragraph 125 of the Reasons.  Mr Sheridan argued that in paragraphs 98, 99 and 100 of the Reasons the Employment Tribunal considered the nature of the process and paragraphs 109 and 110 of the Reasons had considered the conclusions arrived at by Ms Thomas.  In the last sentence of paragraph 126 of the Reasons (see above at paragraph 35 of this Judgment) the Employment Tribunal makes clear its understanding that the Appellant did not agree with Ms Thomas.  These are the factual findings and conclusions that surround the rather bald statement at paragraph 125 of the Reasons, and when these disparate parts of the Judgment are brought together, they form a comprehensive whole and provided a reasoned account as to why the Employment Tribunal reached the conclusion in paragraph 125 of the Reasons.  In consequence, the Employment Tribunal was entitled to reach the conclusion that there had been no detriment to the Appellant arising out of the way in which his grievance had been dealt with

 

60.              Finally, on the question of substance, the Employment Tribunal were entitled to conclude that the Appellant had suffered no detriment.  In essence, the Employment Tribunal regarded the stance taken by the Appellant as being unreasonable.  He was not a lawyer and did not appear to have had the benefit of extensive legal advice.  The Employment Tribunal recognised at paragraph 57 of the Reasons that one lawyer had given her opinion to the Appellant that there had been a breach of sanctions, but there was at least one other contradictory legal opinion and the Appellant was not well equipped to choose between them.  Mr Sheridan submitted that the last sentence of paragraph 118 of the Reasons, namely that a “reasonable employee in Mr Amini’s position would have agreed with Deborah Thomas that these failings were not significant and did not have a serious impact” applied with equal force to the Appellant.  The Employment Tribunal’s approach to detriment was clearly on the basis that detriment was not an entirely subjective concept (see again the self-direction above at paragraph 8 of this Judgment) and such an approach could not be regarded as erroneous.

 

61.              Turning to the alleged procedural failures, Mr Sheridan submitted this was not a matter properly before this Tribunal because the specific complaints had never been raised before the Employment Tribunal.  Firstly, no allegations as to delay had been made in either the Amended Particulars of Claim or in the List of Issues or in the Claimant’s witness statement.  It was, however, raised in the cross-examination of Mr Roy, the Global HR Director, and he accepted that the grievance procedure took longer than the time scale set out in the procedure itself.  He was not questioned further about the matter and it was not pursued with either Mr Mitchell or Ms Cook.

 

62.              Nor was there any live issue before the Employment Tribunal about breach of contract other than that the alleged detrimental treatment amounted to a breach of the implied term of trust and confidence (see paragraph 1.6 in the List of Issues at page 30 of the supplementary bundle).  This does not suggest, submitted Mr Sheridan, that the grievance procedure itself is a contractual procedure; indeed, it suggests the opposite because otherwise why would it be necessary to rely on an implied term as opposed to an express one?  Moreover, it is reasonable to assume that the Employment Tribunal did not accept the delay was unreasonable.

 

63.              Nor was it raised as part of the case put to the Employment Tribunal that the managers conducting the grievance procedure had not been properly appointed in accordance with the grievance procedures.  This was not raised in either the Amended Particulars of Claim or the List of Issues or in the Claimant’s witness statement.  Nor was it put to any witnesses in cross-examination.  The only way in which that allegation had any resonance at all was in relation to Ms Thomas but the Respondent’s case was that she was not conducting a grievance in accordance with the grievance procedure.  This was obviously accepted by the Employment Tribunal and it had not made any error by doing so.

 

64.              Nor was the allegation that two whistle blowing procedures were missing something that should have been dealt with in the Reasons by the Employment Tribunal.  Once again the matter had not been alleged in any of pleadings.  It was, however, put to Ms Thomas that the terms of reference of the Compliance Committee suggested there was a separate whistle blowing procedure or procedures.  But she denied that was the case.  Mr Roy was asked about the same matter and could not recall what the reference to “missing documents” amounted to.  It was out of that, submitted Mr Sheridan, Mr Monaco had constructed the argument that there were whistle blowing policy documents missing and that the Employment Tribunal had failed to deal with the matter.  This was a minor matter, the resolution of which was of no consequence and it was not surprising that the Employment Tribunal had decided to focus on more important matters in the Reasons.  The transcription of the Employment Judge’s notes of evidence had produced no reference to this (see page 92 of the appeal bundle) and, if it existed at all, the matter was clearly of such a kind that no error could arise by the Employment Tribunal not having dealt with it specifically in the Reasons.

 

65.              Mr Sheridan dealt with the allegation that the procedure provided for two stages of appeal in the same way.  This had not been identified in pleadings and it was not part of the Appellant’s case at first instance.

 

66.              Nor could the Court of Appeal’s judgment in Deer v University of Oxford assist the Appellant.  The principal that pursuing a grievance procedure less vigorously than might otherwise be the case could amount to a detriment was plainly correct.  But that was not this case.  The Employment Tribunal did not conclude that the Respondent had approached this matter with anything less than an appropriate degree of gravity.  It was correct that the Employment Tribunal had accepted the Respondent’s position that the allegation of breach of sanctions did not fit into the grievance procedure but there was no finding that Ms Thomas had conducted anything other than a vigorous investigation.  Perhaps the reasoning at paragraph 99 of the Reasons was not as well expressed as it might have been.  Looked at in the context of the overall reasoning, however, paragraph 99 was only an expression of the fact that this was a complaint about a general practice rather than an individual grievance and as such it was reasonable to treat it differently to an individual grievance.

 

67.              It was never put to Ms Thomas that she had delayed her investigation and the fact that there had been several different views about sanctions until she provided a definitive one only illustrated the difficulty of the topic.  Ms Thomas could not be criticised for not giving more prominence to Mr Amini’s witness statement.  It was up to her decide whether to interview him or not and, in any event, she was not cross-examined about it at the hearing.

 

68.              So far as ground 3 was concerned, it was disputed by the Appellant that complaints had been made.  But in relation to Byblos neither in the Amended Particulars of Claim nor in the List of Issues was the loss of commission in relation to Byblos pleaded as a detriment.  In fact, Mr Taylor had accepted there been some complaints from clients and the Appellant had not been completely exonerated by Mr Taylor; he had found that the Appellant had been rather too aggressive in style.  The Employment Tribunal described him at paragraph 32, namely as having a “rude and at times abusive attitude, also demonstrated towards clients”.  This was a finding of fact, which the Employment Tribunal was entitled to make on the evidence before it.

 

69.              Nor did the authority referred to by HHJ Richardson in granting the application to ask questions of the Employment Tribunal, namely King v Royal Bank of Canada Europe Ltd [2012] IRLR 280, really take the matter any further.  The discussion in the passage referred to by HHJ Richardson, namely paragraphs 75, 76 and 77 of the judgment, establishes essentially two situations as to what may be inferred from a failure to cross-examine about an issue.  It may mean that it can be inferred the issue is no longer live or it may be that an adverse conclusion should not be drawn against a party unless that party has been given an opportunity to pursue the matter in cross-examination, although that need not necessarily be so.  The situation in the instant appeal was not, however, analogous to that in King, which is really about whether an adverse finding could be made from the failure of a litigant in person to raise in cross-examination a point, which was clearly part of her case.  Here the question was whether, matters not having been raised at first instance, they could be the subject of discussion on appeal and it was well established they could not be.

 

Discussion and Conclusion

70.              One of the overarching themes of this appeal has been the adequacy of the Reasons.  As I said at the outset, the Employment Tribunal’s Reasons in this case involve a great deal of narrative discussion set in a limited framework of direction as to the law.  Apart from Rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”), which lays down broad parameters (and to which I will return shortly), there is no absolute prescription as to the way in which the Judgment and Reasons of an Employment Tribunal should be structured.  In order to consider whether the structure and content of the Reasons in this case involves an error of law I think it helpful, as an analytical tool, for me to propose a limited framework for the combination of statutory tort and common law principle involved in this case.

 

71.              Two causes of action were relied upon by the Appellant.  Firstly, a complaint of being subjected to a detriment in contravention of section 47B of the Act (see section 48(1A) of the Act).  To my mind the analysis in relation to this cause of action comprises the following three stages:

i.       Has there been a protected disclosure or disclosures as defined by section 43A and 43B of the Act?

ii.      Has the Appellant been subjected to detriment as defined in Shamoon (and/or any other authorities or commentary) by any act or failure to act on the part of the Respondent as required by section 47B of the Act?

iii.     Was that detrimental act or failure to act “done on the ground that … [the Appellant had] … made a protected disclosure” (see also section 47B of the Act)?

 

72.              The second cause of action was unfair dismissal, the ingredients of which are usually straightforward although in this case the picture is more complicated.  Here it was necessary for the Employment Tribunal to consider whether the Appellant had been (constructively) dismissed, he having terminated his contract of employment (by his resignation in February 2014) in circumstances in which he was entitled to terminate it without notice by reason of the Respondent’s conduct (see section 95(1)(c) of the Act).  That consideration involved asking whether the resignation was because of a repudiatory breach of contract by the Respondent entitling the Appellant to accept it as having brought the contract to an end at the time he resigned.  Finally, unless he could bring his complaint within one of the exceptions set out in section 108(3) of the Act (see section 108(2) of the Act) the Appellant did not have sufficient continuity of employment to qualify him to make a complaint of unfair dismissal (see sections 94(1) and 108(1) of the Act).  Section 103A of the Act is one of the stipulated exceptions and, therefore, if his resignation was a dismissal by virtue of section 95(1)(c) of the Act, then the reason or principal reason for the employer’s conduct had to be that the Appellant had made the protected disclosures.  Then, and only then, would he be competent to bring his claim of unfair dismissal.

 

73.              I note that the Judgment of the Employment Tribunal set the matter out in this way (see page 1 of the appeal bundle):

“The judgement of the Tribunal is that the Respondents did not:

1.1. Subject Mr Vairea to detriment in breach of section 47(B) of the Employment Rights Act or

1.2. Unfairly constructively dismiss him in breach of section 103A a [sic][1]”

 

Whilst I prefer the sequential analysis set out above and although paragraph 1.2 appears to telescope what I believe to be two different issues, I do not ascribe much significance to it because what I must concentrate upon are the Reasons.  It is an error in the Reasons which gives rise to this Tribunal being entitled to interfere on appeal and if there is no error in the reasoning then an infelicitous expression in the Judgment is at best inconsequential and at worst open to correction under the “slip rule”.

 

74.              There is much learning of long standing on constructive dismissal; some of it, indeed, might attract the over-used, and sometime dangerous, epithet “trite law”.  In any event, the Employment Tribunal obviously felt comfortable enough with the concept of constructive dismissal not see the need to refer to any of the authorities.  Mr Sheridan, however, cited to me paragraphs 20 and 21 of the judgment of Dyson LJ in the Court of Appeal’s decision in London Borough of Waltham Forest v Omilaju (see above at paragraph 57 of this Judgment) as representing a definitive statement of the law on “constructive dismissal” and “the last straw”.

 

75.              I was not referred by either party to a further discussion of this area of law, which I have come across whilst preparing this Judgment, by a division of this Tribunal presided over by Lewis J in Addenbrooke v The Princess Alexandra Hospital NHS Trust UKEAT/ 0265/14/DM, paragraphs 12 to 14 of which seem to me to have relevance to the instant case:

“12. I turn, then, to the relevant law relating to the question of constructive unfair dismissal and repudiatory breach of contract entitling an employee to treat himself or herself as able to resign.  The first question is whether the conduct amounted to a breach of contract.  The second question is whether the breach was a fundamental breach, showing that the employer did not intend to be bound by the contract.  In relation to what constituted an alleged breach of the implied term of trust and confidence, which is the issue here, my attention has been drawn to the decision in Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347, and in particular paragraph 17, which says:

“In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee … To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the Tribunals’ function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it … The conduct of the parties has to be looked at as a whole and its cumulative impact assessed …”

13. In terms of grievance procedure, I was referred to the decision in the Laneres v Marks and Spencer plc [2005] ScotCS CSIH 19.  In my judgment the more helpful decision is that of the Employment Appeal Tribunal in Blackburn v Aldi Stores [2013] IRLR 846.  There at paragraph 25 it is made clear that failure to follow a grievance procedure is capable of amounting to a fundamental breach.  The question as to whether in any particular case it does so is a matter of fact for the Tribunal to assess in all the circumstances of the case.

14. If there has been a fundamental breach, the third question then arises, which is whether the breach played a part in the decision of the employee to resign.  The appropriate test is set out in Wright v North Ayrshire Council [2014] IRLR 4, in particular paragraph 18, where the President says, “The issue is whether the breach played a part in the resignation”.  Finally there may be cases, which have been described as the last straw cases, where the particular latest act of the employer would not amount to a fundamental breach but where that act, taken with other acts, will entitle the employee to treat the employer as repudiating the contract of employment.  That may arise in one of two cases: firstly, there may have been an earlier fundamental breach which has been affirmed by the employee.  If there is subsequently conduct which, taken together with the employer’s earlier fundamental breach, causes the employee to resign or plays a part in the decision of the employee to resign, the later act effectively reactivates the earlier fundamental breach.  The second situation is whether the latest act does not amount to a fundamental breach but it is a series of breaches of which the last is the last straw and, coupled with the earlier non-fundamental breaches of contract, also enables the employee to treat the contract as repudiated.”

 

So far as I can see London Borough of Waltham Forest v Omilaju was not cited to Lewis J in the Addenbrooke case and I am concerned whether the above passage is entirely consistent with paragraphs 20 and 21 of the judgment of Dyson LJ cited above at paragraph 57 of this Judgment.

76.              For the sake of completeness I think the following passage from the judgment of Glidewell LJ (169D to 170C in the ICR) in Lewis v Motorworld Garages Ltd [1986] ICR 157 is also worth considering:

“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 (ECC) 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] IRLR 347 and Woods v WM Car Services (Peterborough) Ltd [1981] ICR 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 WM Car Services (Peterborough) Ltd [1981] ICR 666)  This is the “last straw” situation.

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

This case raises another issue of principle which, so far as I can ascertain, has not yet been considered by this court.  If the employer is in breach of an express term of a contract of employment, of such seriousness that the employee would be justified in leaving and claiming constructive dismissal, but the employee does not leave and accepts the altered terms of employment; and if subsequently a series of actions by the employer might constitute together a breach of the implied obligation of trust and confidence; is the employee then entitled to treat the original action by the employer which was a breach of the express terms of the contract as a part - the start - of the series of actions which, taken together with the employer’s other actions, might cumulatively amount to a breach of the implied terms?  In my judgment the answer to this question is clearly “yes”.”

 

77.              Having considered these three authorities, it might be thought there is no need to say more but I think it worthwhile to attempt a summary of the principles, which I derive from them, for use as a tool in considering whether the Employment Tribunal has gone wrong on constructive dismissal.  I think the following propositions can be distilled from the three cases cited above:

i.       The Employment Tribunal must identify the employer’s conduct complained of by the employee;

ii.      The Employment Tribunal must ask itself whether that conduct amounted to a breach of an express or implied term or terms of the contract of employment;

iii.     the Employment Tribunal must then consider whether that breach is repudiatory in the sense that it demonstrates the employer no longer wishes to continue with the contractual relationship (the word “fundamental” is often used but a fundamental breach will almost always be repudiatory);

iv.     where the conduct of the employer is not a single act but, as will often be the case, a series of events, it is the cumulative effect of these which needs to be considered in deciding the nature of the breach;

v.      frequently what will be under consideration in terms of the cumulative effect of a series of acts or incidents will be whether, when taken as a whole, the cumulative effect amounts to a breach of the implied obligation of mutual trust and confidence;

vi.     in that kind of analysis it will not matter that some of the individual acts, even the last act in the sequence, are not of sufficient weight, taken in isolation, to amount to a breach of contract, so long as they amount to a breach when considered collectively; sometimes, where, when taken in isolation, the last event appears to be relatively trivial, it can still be “the last straw” which tips the balance in favour of a repudiatory breach;

vii.    for there to be a dismissal, as defined by section 95(1)(c) of the Act, the resignation has to be a reaction to the repudiatory breach of contract.

viii.   this is consistent with the common law doctrine of election, which gives the choice of either continuing with a contract, whilst preserving the right to claim damages in respect of the breach (affirmation), or treating the contract as having been terminated by the repudiatory breach, which discharges the innocent party from further performance or adherence to obligations under the contract.

 

78.              Implicit in the above are the difficult topics of affirmation and the subsequent revival of a repudiatory breach.  Clearly the division of the Tribunal presided over by Lewis J regarded it as possible for a breach to be “revived” after affirmation; paragraph 14 of the judgment in Addenbrooke says so in terms (see above at paragraph 75 of this Judgment).  As I indicated, I am not confident as to how to reconcile that with what Dyson LJ said in paragraph 21 of Omilaju.

 

79.              Chapter 24 of Volume 1 of the latest edition of Chitty on Contracts suggests at paragraph 24-0004 (see page 1736) that affirmation is irrevocable in the sense that once the innocent party has affirmed, there cannot be a subsequent change of mind and the breach cannot be relied on.  But the editors admit the possibility that:

“… in the case of a breach which is persisted in by the other party, the fact that the innocent party has continued to press for performance will not normally preclude him at a later stage from treating himself as discharged.  In such a case the innocent party is not terminating on account of the original repudiation and going back on his election to affirm but rather is “treating the contract as being at an end on account of the continuing repudiation reflected in the other party’s behaviour after the affirmation”. …”

 

In the last sentence the editors are quoting from the judgment of Mr Jonathan Sumption QC sitting as a Deputy High Court Judge in Safehaven Investments Inc v Springbok Ltd [1996] 71 P & CR 59.  His starting point was the speech of Lord Wilberforce in Johnson v Agnew [1980] AC 367.  The complete passage, of which the above quotation is a fragment, is at page 68; it reads:

“If the “innocent” party to a repudiated contract elects to bring it to an end, there is no difficulty in treating his decision as irrevocable.  The contract is destroyed and cannot be re-created.  If, however, the innocent party’s decision is to affirm the contract, the position is less clear cut.  In Johnson v Agnew, the House of Lords had to consider this question in a case in which the innocent party had obtained a decree of specific performance from the court.  The House approached the matter on the footing that the legal significance of the decree was that obtaining it was an affirmation, albeit a particularly emphatic one.  Yet they declined to treat the innocent party’s decision to affirm as irrevocable so as to prevent him from bringing the contract to an end when the repudiating party persisted in his failure to perform.  Lord Wilberforce said:

“Election, though the subject of much learning and refinement, is in the end a doctrine based on simple considerations of common sense and equity.  It is easy to see that a party who has chosen to put an end to a contract by accepting the other party’s repudiation cannot afterwards seek specific performance.  This is simply because the contract has gone - what is dead is dead.  But it is no more difficult to agree that a party who has chosen to seek specific performance may quite well thereafter, if specific performance fails to be realised, say, “Very well then, the contract should be regarded as terminated”.  It is quite consistent with the decision provisionally to keep alive to say “Well this is no use-let us now end the contract’s life”.  A vendor who seeks (and gets) specific performance is merely electing for a course which may or may not lead to implementation of the contract - what he elects for is not eternal and unconditional affirmation, but a continuance of the contract under control of the court which control involves the power, in certain events, to terminate it … The fact is that the election argument proves too much.  If it were correct it would deny the vendor not just the right to damage but the right to “rescind” the contract, but there is no doubt that this right exists …”

It does not follow from this analysis that the innocent party may in all cases change his mind after affirming the contract.  If, for example, after he had affirmed it, the repudiating party’s conduct suggested that he proposed to perform after all, then that party’s previous repudiation is spent.  It had no further legal significance.  If, on the other hand, the repudiating party persists in his refusal to perform, the innocent party may later treat the contract as being at an end.  The correct analysis in this case is not that the innocent party is terminating on account of the original repudiation and going back on his election to affirm.  It is that he is treating the contract as being at an end on account of the continuing repudiation reflected in the other party’s behaviour after the affirmation.”

 

This passage was approved by the Court of Appeal in its judgment in Stocznia Gdanska SA v Latvian Shipping Company & Others (No 2) [2002] EWCA 889 (see paragraph 96 of the judgment of the Court given by Rix LJ).

 

80.              What then amounts to continuing repudiation?  In White Rosebay Shipping SA v Hong Kong Chain Glory Shipping Ltd [2013] EWHC 1355 (Comm) Teare J, also discussing the above passage from Fairhaven, said this at paragraph 48 of his judgment:

“The reference to the “other party’s behaviour after the affirmation” shows that it is not enough to rely simply upon the renunciation before the affirmation but that attention must be directed to the party’s behaviour after the affirmation.  This is also shown by a further passage from the judgment[2] on p.69:

“A refusal to perform a contract can amount to a repudiation only if it is absolute and goes to the root of the contract.  The words or conduct said to demonstrate this must, moreover, do so clearly and unequivocally.  This is as much true of words and conduct said to demonstrate that a party is persisting in an earlier repudiation as it is of the earlier repudiation itself.”

and he reached this conclusion at paragraph 50:

“Accordingly, in a case of renunciation or anticipatory breach (as opposed to a repudiation based on an actual breach) the tribunal of fact must carefully consider whether there were words or conduct after affirmation which demonstrate that the renunciation of the contract is continuing, so that a later acceptance of the continuing renunciation will be a legitimate termination of the contract.”

 

The distinction being drawn between renunciation and anticipatory breach, on the one hand, and “actual breach”, on the other hand, in the above passage is a difficult concept.  But it is one with which I do not need to grapple because plainly the Employment Tribunal in the instant appeal was dealing with an actual as opposed to an anticipatory breach and total renunciation did not arise. 

 

81.              I accept that, as Flaux J put it in Primera Maritime (Hellas) Ltd v Jiangsu Eastern Heavy Industry Ltd [2013] EWHC 3066 (Comm), “any distinction between repetition and continuation of a renunciation is more apparent than real” (see paragraph 25 of the judgment).  Subsequent to an affirmation, however, my own view is that an “entirely innocuous” act cannot “revive” any previous fundament breach.  What is necessary is a new fundamental breach and, whilst in some circumstances that might give the appearance of “revival”, I think the correct analysis is that there has been a new breach.  I think the division of this Tribunal presided over by Lewis J in Addenbrooke should not be taken to have intended to convey anything to the contrary in paragraph 14 of that judgment. 

 

82.              Unless one construes the judgment in Addenbrooke in that way it means there exists a real distinction between affirmation of breach of an express contractual term and affirmation of breach of the implied term as to mutual trust and confidence.  There is no difficulty about the former; if there has been an affirmation then the breach is “spent” and in my view cannot be “revived”.  This seems to me to be what the authorities cited above establish.  In order for a resignation after an affirmation to amount to a constructive dismissal, it must have been as a reaction to a subsequent repudiatory breach and nothing less will do.

 

83.              But what is to happen in the case of a breach of the implied term as to mutual trust and confidence?  Suppose that in a “final straw” case the balance has tipped over, by the latest in a series of events, to a breach of the implied term of mutual trust and confidence but after that and before the breach has been accepted as giving rise to a termination there is then an affirmation.  If all that is necessary to justify a subsequent resignation as a constructive dismissal is the addition of a yet further “final straw” then that would be a revival by an act, not in itself repudiatory, of a previous breach which has been affirmed.  But, in my judgment, it is this very concept that was being addressed by Dyson LJ in Omilaju and his answer clearly means that an “entirely innocuous” further event subsequent to an affirmation does not reopen the matter.  Obviously, I am bound by this and, in any event, I have no difficulty in accepting it as entirely correct.

 

84.              I think when a contract has been affirmed a previous breach cannot be “revived”.  The appearance of a “revival” no doubt arises when the breach is anticipatory or can be regarded as “continuous” or where the factual matrix of the earlier breach is repeated after affirmation but then the real analysis is not one of “revival” but of a new breach entitling the innocent party to make a second election.  The same holds good in the context of the implied term as to mutual trust and confidence.  There the scale does not remain loaded and ready to be tipped by adding another “straw”; it has been emptied by the affirmation and the new straw lands in an empty scale.  In other words, there cannot be more than one “last straw”.  If a party affirms after the “last straw” then the breach as to mutual trust and confidence cannot be “revived” by a further “last straw”.

 

85.              In my view, this is not in any way unfair to an employee, who has elected to go on with the contract.  On the contrary, that is the whole point of an affirmation.  Affirming the contract obviously involves its continuance and that continuance is on the basis that the remedy for past breaches will be purely monetary.  The result is that a further “entirely innocuous” action on the part of the employer cannot entitle the innocent party to revert to the pre-affirmation breach.  That is just as much the position where the pre-existing breach comprised a “bundle of straws” amounting to a breach of the implied term as to mutual trust and confidence as it is with a “unitary” repudiatory breach.

 

86.              I turn then to consider the first overarching theme of Mr Monaco’s submissions, namely whether the Employment Tribunal committed the error of an inadequately reasoned decision.  Mr Monaco’s argument was that in respect of detriment and the causation of detriment the Employment Tribunal stated the conclusions reached on these matters without explaining the reasoning process to the extent required by the Court of Appeal’s decision in Meek.  Similarly the Employment Tribunal simply stated the conclusion that there had been no constructive dismissal without explaining the reason why that was so. 

 

87.              The grounds of appeal do not explicitly raise an inadequately reasoned decision as an error of law.  HHJ Richardson suggested that the decision might not be “Meek compliant”, at least in respect of ground 1.  I can entirely understand why HHJ Richardson took the view it was arguable that the stated conclusions were not properly explained.  They appear as conclusions without any surrounding or adjacent statement of the reasoning.  The focus of the criticism in ground 1 is paragraph 125, which is set out above at paragraph 3 of this Judgment.  Mr Monaco broadened this out by his skeleton argument and by his oral submissions so as to apply the argument of inadequacy of reasoning to all three grounds.

 

88.              This Tribunal concluded in Greenwood v NWF Retail Ltd [2011] UKEAT/ 0409/09/JOJ, [2011] ICR 896 that a failure to comply with the requirements of Rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI No. 2004/1861) would amount to an error of law (see paragraphs 51 to 58 of that judgment).  Whether there had been such a failure should not be determined solely by whether the Reasons specifically referred to the Rule or not and merely paying “lip service” to it would not comply with its substance (see paragraphs 56 of the Judgment in Greenwood).  In order to comply with the Rule it was necessary for the requirements of the component parts of the Rule to be discoverable in the Reasons.  The approach of the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250 should continue to be the prism through which compliance with the Rule was to be viewed (see paragraphs 59 to 63 of the judgment in Greenwood).

 

89.              Greenwood traced the history of the Rule relating to the content of the Reasons for decisions by Employment Tribunals.  In doing so it demonstrated how the rubric of the Rule had moved from the very general to the very specific, culminating in Rule 30(6) of the 2004 Rules (see paragraphs 31, 35, 39, 42 and 43 of the judgment in Greenwood).  Rule 30(6) provided that:

“(6) Written reasons for a judgment shall include the following information -

(a) the issues which the tribunal … has identified as being relevant to the claim;

(b) if some identified issues were not determined, what those issues were and why they were not determined;

(c) findings of fact relevant to the issues which have been determined;

(d) a concise statement of the applicable law;

(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues; and

(f) where the judgment includes an award of compensation or a determination that one party make a payment to the other, a table showing how the amount or sum has been calculated or a description of the manner in which it has been calculated.”

 

90.              Now there is new wording in a new statutory instrument; Rule 62(5) of the Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013 (SI No. 2013/1237) (“the Rules”) reads:

“(5) In the case of a judgment the reasons shall: identify the issues which the Tribunal has determined, state the findings of fact made in relation to those issues, concisely identify the relevant law, and state how that law has been applied to those findings in order to decide the issues.  Where the judgment includes a financial award the reasons shall identify, by means of a table or otherwise, how the amount to be paid has been calculated.”

 

In my view this wording, in rather more compact and precise language, expresses broadly the same requirements as those expressed in the previous Rule and I do not regard the change in the statutory rubric as undermining or altering the reasoning in Greenwood.

 

91.              In my judgment, the answer to Mr Monaco’s criticisms is Mr Sheridan’s submission, which I accept, that, when read as a whole, the Reasons of the Employment Tribunal give an adequate explanation for its conclusions.  If the conclusion at paragraph 125 is read together with paragraphs 98, 99, 100, 101, 105, 109, 110 and 112 of the Reasons, the Appellant knows that he has failed because the Employment Tribunal have concluded that the grievance procedure was carried out honestly, sincerely and adequately.  As I have explained earlier in this Judgment, there was a good deal of controversy as to whether particular points had been raised at the Employment Tribunal hearing.  Moreover, questions arose during the course of this hearing as to whether contentions about managers not being qualified to participate or the procedure taking longer than stipulated or there being other procedures that should have been, but had not been, adopted had ever been part of the case deployed at the Employment Tribunal.

 

92.              Indeed, it was suggested by Mr Sheridan that critical witnesses had not been cross-examined because these points had not been raised either before the hearing or during the hearing before the Employment Tribunal.  It seems to me that there may be a good deal in some of these points but I do not propose to deal with them explicitly.  Obviously, it is impossible to criticise the Employment Tribunal for not dealing with points that were not raised before it.  But, in any event, my conclusion, looking at the broad sweep of the Reasons, is that the Appellant knows from the Reasons of the Employment Tribunal why he has lost and that would not be any different even if these further criticisms were to be considered.

 

93.              The same applies whether the concept of grievance in ground 1 and ground 2 is confined only to those matters dealt with under the “grievance procedure” or whether the matter is broadened out to include the investigation carried out by Ms Thomas.  Her conclusions had been examined specifically in paragraphs 109 and 110 of the Reasons.  The comment made by the Employment Tribunal at paragraph 118 of the Reasons that a “reasonable employee … would have agreed with Deborah Thomas that these failings were not significant and did not have a serious impact” is clearly intended to apply equally to the Appellant’s case.  I accept that the Employment Tribunal did not explicitly import the comment at paragraph 118 into the Appellant’s case.  But the Employment did link the cases of the Appellant and Mr Amini at various points (see paragraphs 121 and 127) and it seems to me implicit in paragraph 127 that the same view is being taken of the Appellant’s case as had been taken of that of Mr Amini.  In my judgment, the only way to read the Employment Tribunal’s Reasons as they relate to Ms Thomas and her investigation is that her procedure and conclusions could not be the subject of sustainable criticism.  To my mind, this is perfectly adequate reasoning.

 

94.              I also think that the same analysis applies to ground 3 of the grounds of appeal.  Whether this is to be confined to Fransabank and the National Bank of Kuwait or is to be widened out to include Byblos, it seems to me that the Reasons, when read as a whole, disclose a perfectly comprehensible explanation as to why the Employment Tribunal has reached the conclusion that this was not detrimental to the Appellant.  Furthermore, on the question of causation, in my judgment, it is clear from the Reasons that the Employment Tribunal has found that the intervention of the managers by taking over the conduct of business with the clients was not done because the Appellant had made complaints about breach of sanctions but because customers had complained about him.

 

95.              I should make it clear, out of deference to Mr Sheridan’s submissions, it does not seem to me that the point relating to Byblos was raised before the Employment Tribunal in the way it has been raised on this appeal.  I also accept that this Tribunal should not entertain points not raised before Employment Tribunals except in limited and special circumstances.  Nor do I regard the fact that this point is, to all intents and purposes, the same point as that relating to Fransabank and the National Bank of Kuwait, means that, necessarily, it should be entertained as part of the appeal.  Above all, in the context, which I am currently discussing, if the point was not raised before the Employment Tribunal, it can scarcely be criticised for inadequacy of reasoning in relation to it.  In the end, however, it makes very little difference.  The point is either made good by the two matters that clearly were before the Employment Tribunal, namely Fransabank and the National Bank of Kuwait, or it is not an additional consideration of Byblos cannot make any difference to the outcome.  It is clear from the Reasons that the Appellant lost on this because the Employment Tribunal concluded that taking over of the client by the manager had nothing to do with the protected disclosures.  To my mind, the decision was adequately reasoned and adding Byblos would make no difference to that analysis.

 

96.              Each ground of appeal also raises alleged failure on the part of the Employment Tribunal “to properly address the questions of … whether such conduct constituted detriments [and if so] whether these were detriments to which the Claimant was subjected due to making protected disclosures; and whether these detriments entitled him to resign”.  Thus, the grounds of appeal raise the possibility of a threefold error on the part of the Employment Tribunal.  Firstly, an error arose in deciding that the Respondent’s conduct in relation to the grievance procedure, the Thomas investigation and the renegotiation of contractual terms did not amount to a detriment.  Secondly, and assuming it did amount to detrimental conduct, an error arose in deciding that the detrimental treatment was not because the Appellant had made protected disclosures.  Thirdly, an error arose in deciding that the Appellant had not been entitled to resign because of that treatment.

 

97.              In this context also, I have reached the conclusion that, read as a whole, the Employment Tribunal’s Reasons are “Meek compliant” and satisfy the requirements of Rule 62(5) of the Rules.  The Appellant knew from the Reasons that the Employment Tribunal did not regard the Respondent’s conduct of the grievance procedure or its outcome, or the investigation carried out by Ms Thomas or its outcome, as amounting to detriment.  Nor did the Employment Tribunal think that the grievance had been rejected or the investigation had concluded there had been no breaches of sanctions because the Appellant had made complaints about breaches of sanctions.  Nor did the Employment Tribunal find there to be any detriment relating to his manager taking over two transactions.  Finally the Employment Tribunal also concluded that there was no connection between any of these matters and the Appellant’s resignation.

 

98.              I turn now from the question of the adequacy of reasons to the question as to whether any error arose out of the refusal of the Employment Tribunal to characterise any of the Respondent’s conduct as detrimental.  It seems to me that much of the criticism directed towards the Reasons of the Employment Tribunal by Mr Monaco, both in relation to the grievance procedure and in relation to the investigation carried out by Ms Thomas, depends on the premise that the grievance procedure was not properly conducted and the investigation of alleged breach of sanctions was incompetent.  In order for the judgment of the Court of Appeal in Deer to be relevant to this case, the Appellant would have to demonstrate that the Employment Tribunal was wrong to conclude that either the grievance procedure or the investigation or both had been inadequately conducted.  But the Employment Tribunal found the opposite to be the case.

 

99.              The complaint about delay appears to have been raised but not pursued (see above at paragraph 61 of this Judgment for a summary of Mr Sheridan’s submission on this matter).  Whether any of the other criticisms about the managers not being properly qualified to conduct a grievance procedure or about procedures being missing (see above at paragraphs 62 and 63 of this Judgment), were actually developed before the Employment Tribunal was highly contentious.  I accept Mr Sheridan’s argument that these matters were never canvassed properly before the Employment Tribunal.  But, in any event, in my view these are minor matters which have insufficient critical mass to undermine the general conclusions reached by the Employment Tribunal.

 

100.          In one respect, however, I am uncomfortable about the reasoning of the Employment Tribunal.  Whilst I find it entirely understandable and acceptable that the Employment Tribunal found it reasonable for a manager to intervene and conduct matters personally when a client complained, I accept Mr Monaco’s argument that if the intervention resulted in a loss of revenue to the Appellant, then that must amount to a detriment.  In my judgment, it was an error on the part of the Employment Tribunal not to look at the matter in that way but instead to concentrate on the reasonableness of the decision.  Conduct on the part of the employer can be reasonable but can still result in detriment to the employee.

 

101.          It does not seem to me, however, that this would have made any difference to the outcome.  The Employment Tribunal plainly did not regard this matter as causally connected to the protected disclosures made by the Appellant.  The intervention was because customers had complained and their complaints were not about any matters relating to sanctions.  Therefore, even if the Employment Tribunal had recognised that the loss of commission inevitably amounted to a detriment, this could not have altered the outcome because the intervention was not caused by the allegations of breach of sanctions.

 

102.          In his submissions Mr Sheridan argued that the inability of the Appellant to link the protected disclosures with any of the subsequent conduct of the Respondent was a fatal flaw in his case.  I accept Mr Sheridan’s submission that the Employment Tribunal was entitled to find causation was never made out in this case and that none of the complaints raised on behalf of the Appellant came anywhere near to a sustainable criticism of the Employment Tribunal for reaching that conclusion.

 

103.          That factual outcome meant that the Appellant’s case on constructive dismissal could never succeed.  Unless his resignation was the result of repudiatory conduct caused by protected disclosures, the Appellant could not bring himself within the ambit of section 103A of the Act.  Nevertheless, the Employment Tribunal did not stop at this stage of the analysis.  Although the Employment Tribunal did not analyse the issue of constructive dismissal as I have done above at paragraphs 74 to 84 of this Judgment, it seems to me that their consideration of the issue of constructive dismissal falls broadly within the parameters of that analysis.

 

104.          At paragraph 106 of the Reasons the Employment Tribunal identified the date on which the Appellant had commenced his proceedings in the Employment Tribunal complaining of a breach of section 47(B) of the Act.  The Employment Tribunal regarded “detrimental activity” as a potential justification for resignation (see paragraph 126 of the Reasons) but concluded that the commencement of proceedings was a watershed.  This is by no means a classical analysis of either repudiatory breach or of cumulative conduct resulting in a breach of the implied term as to trust and confidence.  But it seems to me clear enough that what the Employment Tribunal was considering at paragraph 127 of the Reasons was whether at that the date of resignation on 11 February 2014 there was any repudiatory conduct still operative and available to justify the resignation.  This, in turn, involved consideration of whether the Appellant had affirmed the contract.

 

105.          In my view the history should be considered in three stages.  First, the Appellant affirmed the contract in September when he said he intended to remain in the Respondent’s employment.  This affirmed the contract even though he was alleging that sanctions had been breached.  Thereafter he could not revive breaches of sanctions as a repudiatory breach and his argument about breach was confined to the alleged failures of grievance and investigation procedures.  Second, in December after he had commenced proceedings alleging detriment because of protected disclosures, he continued with the contract despite the rejection of his grievance and despite his complaints about breaches of sanction being hived off to a separate investigation by Ms Thomas not under the grievance procedure.

 

106.          Third, he when he resigned in February the only conduct of the Respondent that he complained about was the outcome of the Thomas investigation; he did not complain that the refusal of his appeal in relation to his grievance amounted to detrimental conduct caused by his protected disclosures.  Nor could the substance of the Thomas finding have amounted to a repudiatory breach of contract because he had affirmed the contract in September.  Even if the Appellant disagreed with the outcome of the Thomas investigation, all that amounted to was a disagreement about whether sanctions had been breached.  This cannot have “revived” anything nor can it have amounted to a further repudiatory breach.  He had already elected to remain in employment despite believing there had been a breach.

 

107.          I have considered Mr Monaco’s argument on the basis that it might contain the inarticulate premise the Appellant only remained in employment on condition that the outcome of the investigation vindicated his view that there had been a breach of sanctions.  This was something that Mr Monaco flirted with in his submissions but never went so far as to articulate.  I would reject that view of it as neither supported by the evidence nor by the findings of the Employment Tribunal and, in any event, as being unrealistic.  The concept of an affirmation is that of electing one course and forgoing the other; in my view the innocent party cannot have it both ways.

 

108.          Whether the indication given by the Appellant in the autumn that he did not wish to resign amounted to an affirmation or whether the commencement of proceedings based on section 47(B) of the Act amounted to an affirmation was not an analysis that the Employment Tribunal ever articulated.  But the conclusion that there had been “no further detriment” (see paragraph 126 of the Reasons) seems to me to imply the absence of any repudiatory breach of contract at the time of resignation and this is emphasised by the last sentence of paragraph 127 of the Reasons.  In my judgment, this was a good enough analysis of whether or not there had been a breach of contract.

 

109.          In any event, if there was no causal link between whistle blowing and the resignation, as the Employment Tribunal plainly found, the Appellant could never have succeeded in establishing a constructive dismissal.  He had to show he had been dismissed because of the protected acts and the Employment Tribunal’s conclusion that his resignation in February was not connected to what he had said in the previous Autumn seems to me unassailable.

 

110.          For all of the above reasons this appeal should be dismissed.