Appeal No.	 EAT/691/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 November 1999

Before
HIS HONOUR JUDGE D PUGSLEY
MR A C BLYGHTON
MR J C SHRIGLEY

MRS S WOODGATE	APPELLANT

COURAGE LTD 	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MACKRELL	
For the Respondent	MR MCKAY	

RESERVED JUDGMENT

Mrs S Woodgate
-v-
Courage Ltd
_____________________________________________________________________________

JUDGE D PUGSLEY:  This is a case which has a substantial history.  The proceedings began as long ago as 29th May 1996 when the Appellant, Mrs Woodgate, presented a Originating Application to the Employment Tribunal, complaining of constructive unfair dismissal, breach of contract and sexual harassment against her former employer, the Respondent’s, Courage Ltd.

1.	The matter came on before the Employment Tribunal sitting in Southampton in the Autumn of 1996.  By a decision promulgated on 23rd December 1996, all the complaints were dismissed.

2.	On the 18th March 1997 this Tribunal, the Employment Appeal Tribunal at a Preliminary Hearing allowed the case to proceed on certain limited grounds of appeal.  On the 7th October, at the full hearing, the appeal was allowed and remitted for a hearing by a fresh tribunal.  

3.	That hearing took place in February of 1998 and the sex discrimination case was upheld, but the unfair dismissal and the breach of contract claim were dismissed.  The Appellant lodged a Notice of Appeal and on the 20th October 1998, at a preliminary hearing of this tribunal, his Honour Judge Peter Clark sitting with members, allowed the case to proceed on limited grounds of appeal.  In view of the weight that the Appellant places on the judgment of his Honour Judge Peter Clark, it is perhaps pertinent to quote from that judgment as setting the context in which we have heard this appeal.   

4.	After dealing briefly with the history, the picture is taken up from the rehearing:-

“That rehearing took place before an Employment Tribunal chaired by Mr S J W Scott on 9th-11th February 1998.  By a decision with extended reasons dated 1st May 1998 her complaint of sex discrimination was upheld and an award of compensation in relation to that discrimination made.  That aspect of the claim no longer concerns us.   Secondly, the Scott tribunal again found she was not constructively dismissed by the respondent.  Against that finding this second appeal is brought.

We return to the judgment which I gave on behalf of the EAT on 7th October 1997.  The point on which the claim of constructive dismissal/breach of contract was remitted for rehearing was the first tribunal had failed to determine the effective date of termination of the contract of employment.  There was issue between the parties as to the correct date.  The appellant contended for 9th May 1996 and the respondent for the 12th June 1996.   The materiality of the effective date of termination lay in the fact that between those dates certain events had occurred which might have a bearing on the question as to whether or not the respondent was in fundamental breach of the implied term of mutual trust and confidence.

In their extended reasons the Scott tribunal found that the effective date of termination was 10th May 1996, the date on which the appellant’s letter of resignation was received by the respondent in the post.   It follows that events after that date are immaterial to the question of repudiatory breach by the respondent.

At paragraph 27 of their reasons the Scott tribunal accepted the appellant’s oral evidence that she resigned because the respondent’s delay in dealing with her complaints contained in her letters dated 27th February and 23rd May 1996.  At paragraph 30 the Tribunal found that there could be no complaint about the respondent’s conduct prior to the 28th March 1996.   Prior to that date Mr Jackson, director of the respondent whom the tribunal found to be an impressive witness, had held two meetings with the appellant and her father, who has represented her throughout.  At the meeting on 13th March Mr Jackson said he would carry out a full investigation into allegations made in the appellant’s letter of 27th February.   At a further meeting held on 25th March Mr Jackson went through all the points raised in that letter.

However, on 28th March Mr Jackson fell ill and was away from work for a month.  Thereafter, the tribunal found, the handling of the matter by the respondent was unsatisfactory.  They considered that when Mr Jackson’s illness became protracted another person ought to have been appointed in his place.  The respondent through its consultant, Mr Jennings, wrote a mistaken and misleading letter to the appellant on the 11th April.  On 29th April Mr Jackson returned to work and completed his enquiries within five working days, but was at fault, so the tribunal found, in not contacting the appellant immediately on his return.  In the event, the appellant heard nothing from the respondent between the 12th April and 9th May for which the Tribunal found was unreasonable.

On 9th May she tendered her resignation as a result of the respondent’s delay in completing their investigation into her complaints.

The tribunal asked themselves whether the facts amounted to a breach of the implied term of mutual trust and confidence.  They directed themselves that the fact that the respondent acted unreasonably towards the appellant did not determine the matter since there is no implied contractual term that the employer will treat an employee in a reasonable manner.

Pausing there, it is correct to say there is no such general implied term.  Nor is the reasonableness of the employers’ behaviour the correct test for determining whether an employee has been constructively dismissed.  However, we specifically drew attention in our judgment of 7th October 1997 (Transcript page 13D) to the decision of the EAT in W A Gould (Pearmak) Ltd v McConnell [1995] IRLR 516, in which Morrison pointed out that there is to be implied into a contract of employment a term that the employer will reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have.

In the present case, the Scott tribunal at paragraph 29 of their reasons rejected the appellant’s submission that the issue was a failure by the respondents to properly carry out an investigation of her “grievances” on the basis, first that she did not submit a formal grievance and secondly, that the primary purpose of the respondent’s enquiries was not the investigation of the appellant’s complaints or grievances but rather to consider whether the appellant had a case to support her application for a transfer to a new job.

It is here we think the Employment Tribunal arguably fell into error.  The tribunal found that the reason for the appellant’s resignation was the respondent’s delay in dealing with her complaints set out in her letters of 27th February and 23rd March.  Mr Jackson had, on the 13th March, promised to hold a full investigation into allegations made in letter of 27th February.  In that letter she made it clear that the reason why she wanted a transfer was to get away from the bullying and harassment which she alleged she was receiving from her then supervisor, Mandy Evans.   Whether it was a formal grievance under the respondent’s procedure is arguably nothing to the point.  She raised complaints about her working conditions;  the respondent promised to investigate them; they did not do so in a timely fashion on the tribunal’s findings of fact.

It is in these circumstances that we shall allow the matter to proceed to a full appeal hearing, limited to the sole question whether the Employment Tribunal erred in law in failing properly to consider whether, on their own findings of fact, the respondent was in fundamental breach of the implied term of contract more particularly identified in McConnell.

For the purposes of that appeal, we formally record that the appellant withdraws her complaints regarding the conduct of the proceedings by the Scott Tribunal which have culminated in an exchange of correspondence between Mr Mackrell and the President of the Employment Tribunals, Judge John Prophet.  Further and for the avoidance of doubt we strike out all other matters raised in the grounds of appeal set out in the Notice of Appeal limiting the point in the appeal to that which we have earlier identified.

We have before us an application for extracts from the Chairman’s Notes of Evidence.  Having considered that application the context of the sole point on which we have allowed the matter to proceed, we shall direct the Chairman, Mr Scott, be asked to provide notes of the evidence given by Mr Jackson in cross-examination relating to delays in his investigations between  4th March and 8th May 1996.  Secondly, the evidence given by Mr Jackson in cross-examination regarding the extent of his investigations of the facts complained of by the appellant in her letter of 27th February and 23rd March 1996”.

It is a tribute to the patience of the learned Judge that he has distilled the essential issue from a Notice of Appeal which runs for some 18 typed pages.  

5.	The notes of the Chairman were produced and that produced a further application from the Appellant that the notes did not accurately set out all the answers that Mr Jackson had given in evidence.  This matter was considered by the then President of the Employment Tribunal, Mr Justice Morrison and, in a decision, dated 30th March 1999, the learned Judge refused that application.  

6.	In his final paragraph of the judgment he said this:-

“It is plain from the judgment from the EAT on the 20th October 1998 that there is an arguable point of law which should be considered at the hearing.   Whether the notes of evidence will be helpful at resolving that issue is another matter, but if the notes of evidence do need to be referred to it will be the Chairman’s notes of evidence and nobody else’s.  Accordingly, this application must be refused, but I should say to Mr Mackrell that I am grateful to him for the pleasant and modest way in which he has put his submissions to me this morning”.

7.	It should be said that throughout these hearings and the correspondence with the President of Industrial Tribunal’s making allegations against Mr J W Scott, the Appellant’s case has really effectively been championed by her father Mr Mackrell.

8.	In the decision, the Tribunal set out from paragraph 4 onwards the material matters which they had to determine.  The note the Applicant is employed as a telesales operator and its premises in Chandler’s Ford, Hampshire from the 17th June 1994.  She was one of a team varying between 5 and 6 and the supervisor was a Mrs Mandy Evans.  The Applicant had received written particulars of employment dated 16th January 1994 which provided for one month’s notice to be given by both parties.   The Respondents’ Disciplinary and Grievance procedures were attached.  The Grievance Procedure provided for a three stage process initiated by the submission of a formal grievance.  It was however provided the grievance procedure:-

“should not be used when separate procedures of discussion already exist”

9.	In September 1994, the Applicant was appointed Customer Service Training co-ordinator, a role which did not affect her status or pay band but did give her the added responsibilities of training other telesales operators.  The Applicant’s work was entirely satisfactory and her performance was not an issue in the case.

10.	In 1995 the Applicant seems to have been dogged by ill health.  Between mid May 1995 and mid June 1995 she was absent from work for some 15½ days because of back pain.  She was on holiday from 19th to 20th June.  In that month the Applicant split up with her boyfriend.  She was again on six leave throughout July except for the first day and last day of that month and produced sick notes from her doctor stating the reason for absence as depression.  The Applicant had no further sickness absence until the end of the October 1995.  

11.	During October 1995 the Applicant complained to Mr Bracher, the Respondent’s Area Sales Manager about a bad working atmosphere in the telesales department in general and between herself and Mrs Evans in particular.  There was a further period of absence from the 1st to 6th November when the Applicant was off work with bleeding and other difficulties  diagnosed as being due to pregnancy.  The Applicant informed her employers of her pregnancy within a few days after returning to work on 7th November.  On 29th November the Applicant commenced a further period of sick leave from which she never returned to work.   She submitted to the Respondent a Self-Certification Form giving the nature of her illness as stomach upset and on 4th December her doctor signed a sickness certificate for one week diagnosing bleeding in early pregnancy.   From the 12th December 1995, the Applicant submitted a series of sickness certificates signed by her doctor describing her condition as depression.  

12.	Mr Bracher, the Area Sales Manager, wrote to the Applicant on 4th January 1996 informing her that her entitlement to sick pay under the Respondents’ scheme would expire on 30th January 1996 and telling her who to contact with information of documents concerning her confinement for maternity rights purposes.   A letter signed by the Applicant but effectively composed and typed by her father was sent on 20th January 1996 requesting information concerning the expiry of her sick pay and the letter concluded:-

“With the request that the Company consider her circumstances and transfers her to a new job in a different department.  She suggested that returning to her current job may well result in further illness and depression due to attitude and actions of existing of staff within the telesales department.   To that letter Mr Bracher replied by letter on 8th February 1996 explaining before they could consider a request for a job transfer they needed to understand more fully the reasons for her request.   A meeting was suggested by Mr Bracher to be attended by the Applicant, Mr Bracher and Mr Jennings, the Respondent company’s Human Resource Consultant”.

13.	The Applicant replied to that letter on 27th February 1996 with a letter running to some five pages.  It was, according to the Tribunal’s finding, composed and typed by Mr Mackrell but signed by the Applicant.  In that letter, details were set out of what was said to be the attitude displayed to her by Mrs Evans and it sets out in some 22 numbered paragraphs some of the examples of the problems encountered.  They concluded by stating the Applicant did not feel strong enough to visit company premises but invited Mr Jennings and Mr Bracher to attend the meeting at her home when one of her parents would be present.  

14.	On the 13th March 1996 there was a meeting with Mr Jennings and Mr Jackson, a director who assumed responsibility.  The Applicant was accompanied by her father.  Mr Jackson assured the Applicant he would investigate the matters she had raised, although they were not discussed in great detail at that meeting.  There was a conflict of evidence as to the exact words used and the Tribunal preferred Mr Jackson’s account that he did not say, nor did the Applicant or Mr Mackrell understand, that the investigation would be completed within a week, but rather he said that such investigation would get underway during the following week.  A further meeting took place on the 25th March at which Mr Jackson was handed a letter signed by the Applicant in which further points were made including a reference to the Applicant being criticised by Mrs Evans for arriving late at work and the Applicant’s explanation that this was due to morning sickness.   Mr Jackson discussed every point raised in both the letters of 27th February and 3rd March and the meeting lasted approximately 3.5 hours.   On that afternoon Mr Jackson had a long interview with Mrs Evans lasting over four hours.

15.	On the 28th March 1996 Mr Jackson fell ill with a recurrence of a condition which he had suffered from 18 months previously, which involved inflammation and degradation of nerves leading to limb paraylsis.  It is a serious condition which in some cases can be fatal.   Mr Jackson did not return to work until 29th April and he then resumed his investigation the same day.  He had a two hour meeting with Mr Portman on 29th April, the Respondents’ Marketing Development Manager, and on 30th April he had a two hour meeting with Mr Bracher and subsequently had a telephone call lasting between 15 and 20 minutes with a Mr Squires.

16.	Whilst Mr Jackson had been away, a Mr Jennings had written on his behalf the following terms on the 11th April:-

“Further to our recent meeting I am writing to keep you updated on the current situation.  Simon Jackson has unfortunately been absent due to illness and is currently now on holiday.  We have therefore been unable to progress the matter further.   Simon hopes to be back at work very shortly and at that time will be in contact with you”.

By letter to the Applicant dated 8th May, received by her on 9th May, Mr Jackson informed her that his investigations were complete and he was now considering the outcome.  He proposed three alternative appointments for a meeting, between the 20th and 22nd of May.  

17.	On 7th May 1996, the Applicant assisted by her father drafted a letter of resignation.  On 8th May they both went to see a solicitor and took advice on the situation.  Mr Mackrell returned to work after the meeting and typed a letter of resignation dated the following day 9th May in anticipation that it would not be posted until the next day.  The evidence of both the Applicant and her father was that in fact on 8th May the Applicant signed the letter and later that night on impulse , both she and her father went by car to post the letter.  It was received by the Respondent company on 10th May although not seen by Mr Jackson until 13th May 1996.

18.	The letter contained a passage which is fully set out at paragraph 21 of the decision and included in it was the following:-

“It is quite apparent to me that the company is no longer interested in honouring its obligations to me as a responsible employer and I consider the duty of trust and confidence has been fundamentally breached”.

19.	The Applicant subsequently responded to the Respondents’ letter of 8th May 1996 by refusing to attending a meeting but she later changed her mind and the meeting took place on 21st May 1996 attended by the Applicant, her father, Mr Jackson and Mr Jennings.  Mr Jackson informed the Applicant of the outcome of his investigations, namely that sick pay would be paid from the 30th January 1996 to the commencement of return from leave and the Respondent would see to the Applicant’s request for a job transfer by moving her to a job in Sales Operations with the Applicant retaining her current salary and conditions.   In the meantime the Respondent continued to pay her wages until 12th June 1996.

20.	The Applicant rejected the offers made by the Respondents together with a subsequent suggestion that as an alternative to resigning she would take her maternity leave in the normal way and decide thereafter whether she wished to return to the new position offered to her.   The Tribunal then go on to consider the effective date of termination of the Applicant’s employment was on the date her letter of resignation was received by the Respondent in the post, ie., 10th May 1996.

21.	The Tribunal then went on to deal with the law as to unfair dismissal and their factual findings.  There is no substitute for setting out the terms of their decision:-

“The Applicant’s claim of unfair constructive dismissal is resisted by the Respondent on the groundthat the Applicant resigned voluntarily and that there was no dismissal.  It is not submitted by the Respondent that, if there was a dismissal, it was a fair dismissal.

Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is dismissed by his employer if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

In order to establish that there has been a constructive dismissal, the Applicant must first establish that there was a breach of contract on the part of the Respondent which was a fundamental breach, ie., a significant breach going to the root of the contract.  It is necessary for her to show, therefore, that there has been a repudiatory breach of contract by the Respondent.  The Applicant then needs to show that such breach or breaches of contract constituted the reason for her resignation.

Paragraph 12 of the Originating Application contains a series of assertions and allegations by the Applicant, but does not specify which of them specifically relate to the complaint of unfair constructive dismissal.  Further, a number of these allegations have not substantiated by evidence presented by or on behalf of the Applicant at the hearing and the closing submissions made on her behalf by her father, who has represented her throughout and who the Tribunal appreciates is not a lawyer or professional representative, are somewhat muddled and contain undigested and misapplied statements of legal principal. 

The Tribunal has therefore had regard to the reasons for resignation given by the Applicant herself during the course of her sworn oral evidence.  In her evidence in chief, the Applicant said that she resigned  because she heard nothing following the Respondent’s letter of 11 April 1996 and because the Respondent was not taking seriously her complaints ie the matters raised in her letters of 27th February and 23rd March 1996..  In cross-examination the Applicant was asked “what was the reason in your mind for resignation?”  The Applicant answered “Because no-one had come back to me”.  Later in her cross examination, the Applicant said that she did not accept the alternative job position offered by the Respondent after her resignation because she did not want to go back into the “rat race” of the job and she agreed that it was only the delay that caused her to resign.

The Tribunal finds that these were the true reasons for the Applicant’s resignation;  it accepts that her sworn evidence in preference to the other grounds advanced in the letter of 9 May 1996 (the drafting of which we find was undertaken largely by Mr Mackrell and the Applicant’s newly instructed Solicitor) and in the closing submissions made by Mr Mackrell.

The Applicant claims that her reason for resignation constituted conduct on the part of the Respondent likely to destroy or seriously damage the relationship of confidence between the employer and employee.  The Tribunal finds that there was an implied term of mutual trust and confidence in the Applicant’s contract of employment and that the breach of such term by the Respondent would be a fundamental breach amounting to a repudiation.  The issue, therefore, is whether the Respondent was in breach of such implied term.

The Tribunal has considered the nature of the Respondent’s investigation and the context in which it was conducted.

It was submitted on behalf of the Applicant at the hearing that the matter in issue was a failure by the Respondent to properly carry out an investigation of the Applicant’s “grievances”.  The Tribunal rejects that submission.  In the first place, the Applicant did not submit a formal grievance (as she conceded at the hearing) and the Respondent’s formal grievance procedure did not apply to the Respondent’s investigations.

Secondly, the primary purpose of the Respondent’s enquiries was not the investigation of the Applicant’s “complaints” or “grievances” but rather to consider whether the Applicant had made out a case to support her application for a transfer to a new job in a different department.  That was the specific request contained in the Applicant’s letter of 20 January 1996, written some three months after the Applicant had been to see Mr Bracher about the working atmosphere in the department and her poor relationship with Mrs Evans and seven weeks after the Applicant had commenced her sick leave.  The position is confirmed by the Applicant’s long letter dated 27 February 1996, which commences by making it clear that the “examples of problems encountered set out at length in the letter are by way of reasons for her request for a job transfer”.

The Tribunal has judged the conduct of the Respondent strictly in the context of the basis of its own investigation as it reasonably understood it to be at the time, namely a consideration as to whether  the Applicant had or had not justified her request for a job transfer.  Mr Mackrell’s submissions that the Respondent’s conduct should be judged retrospectively in a different context, namely that of investigating “grievances in a proper and timeous fashion” have been rejected.

The Tribunal finds that no criticism of the Respondent’s conduct prior to 28 March 1996 can be upheld.  It found Mr Jackson to be an impressive witness and was satisfied that between assuming responsibility for the Applicant’s case in early March and falling ill himself on 28 March he had conducted the matter in a thorough and conscientious manner.  Two long meetings had been held with the Applicant at her own home, and in her father’s presence.  Mr Jackson had kept his word by getting his investigation underway during the week following the meeting on 13 March.  Following the subsequent meeting on 25 March, when he had discussed with the Applicant  for three and a half hours her grounds for applying for a transfer, Mr Jackson had a long interview with Mrs Evans, but three working days later, he fell seriously ill and was away from work for a month.  The handling of the matter thereafter by the Respondent was unsatisfactory.  At least when it became apparent that Mr Jackson’s absence was to be protracted, the Respondent should either have appointed another suitable person to take over the Applicant’s case or at least informed her promptly of the situation and explained why there would be a delay.  The Respondent’s letter to the Applicant of 11 April 1996 was mistaken and misleading.  Mr Jackson was not, in fact, on holiday and the Respondent was not justified in expressing the hope that he would be “back at work very shortly”.  Following his return to work on 29th April, Mr Jackson completed his enquiries and came to his conclusions…. the Applicant immediately on his return to work, especially in the light of the false information which had been given to her in the letter of 11th April.  In the result, the Applicant heard nothing from the Respondent between 12 April and 9 May which in all the circumstances, the Tribunal finds to have been unreasonable, even allowing for the fact that it was always open to the Applicant or her father (who had by then assumed an active role in the matter) to have contacted the Respondent and ascertained from themselves the state of Mr Jackson’s health and the reason for the delay in receiving further news).

The Tribunal has considered all that occurred between the Applicant’s letters of the 20th January 1996 applying for a job transfer and her letter of resignation dated 9th May 1996.  It has asked itself whether the Respondent’s actions, taken together, cumulatively amount to a breach of the implied contractual obligation of trust and confidence.

The fact that the Respondent acted unreasonably towards the Applicant during the hiatus caused by Mr Jackson’s illness does not determine the matter since there is no implied contractual term that an employer will treat an employee in a reasonable manner.  The Tribunal has taken into account the fact that the Applicant was away from work throughout the relevant period and that, according to her medical certificate, there was no immediate prospect of her being able to return to work.  What was in issue, therefore, was the job that… the period in question the Applicant had the benefit of the support and representation of her father, who was clearly at pains to take such actions as he considered to be in his daughter’s best interests and who could, therefore, have enquired from the Respondent as to the reason for the delay during Mr Jackson’s illness.

The Tribunal rejects that the Applicant’s claim that the Respondent’s conduct showed that it was “not taking seriously” the Applicant’s position.  The two long meetings with her, and the steps taken by Mr Jackson, clearly show that the Respondent was treating very seriously the Applicant’s application for a job change and the grounds which she had submitted.

The Tribunal has concluded that, looked at as a whole and viewed objectively, the Respondent’s conduct does not evince an intention no longer to be bound by the contract and was not, therefore, repudiatory.

Since there was no fundamental breach of contract on the part of the Respondent, the Tribunal finds that the Applicant’s resignation was voluntary and that she was not constructively dismissed”.

22.	We now turn to consider the ground of appeal on which leave has been given to pursue this full appeal.   Although Mr Mackrell is not as we understand it professionally qualified, his skeleton argument sets out a series of matters which are easy to read and in which the formulation of the law as to the background issues is both helpful and accurate.  Mr Mackrell accurately states that the employers conduct must amount to a breach of contract and that breach must be sufficiently important to justify the employee resigning.  He states quite accurately that four questions arise:

1)	what are the terms of the contract
2)	did the facts found amount to a breach
3)	was the breach repudiatory
4)	did the employer act in response to that breach and with reasonable speed.

23.	Mr Simon Mackay, appearing for the Respondents, accepts that those issues are common ground.  Further Mr Mackrell sets out the Employment Appeals Tribunal’s proper approach to appeals on perversity and refers us to the case of Piggott Brothers v Jackson (1991) IRLR 309, 312 where Sir John Donaldson M.R. states that a decision is only perverse if the decision was not a permissible option.   Again, Mr Mackay on behalf of the Respondents accepts that that is an accurate statement of the position.

24	The nub of Mr Mackrell’s case is set out in paragraph 3(2) of his grounds of appeal, namely that it is an implied term that employers will not act in a manner to destroy or seriously damage the relationship of confidence and trust between employer and employee.  It is an implied term that employers will reasonably and promptly afford a reasonable opportunity to their employees to obtain redress from any grievances they may have and the case of McConnell at (1995) IRLR 516 & 517 is cited.  Mr Mackrell also refers the Tribunal to the transcript of the proceedings at the preliminary stage and we have already dealt those parts of the decision which are relevant in His Honour Judge Peter Clark’s judgment in the preliminary stage.

25.	One of our members, Mr A Blyghton was also a member of the tribunal that decided the case of W A Goold (Pearmak) Ltd v McConnell.

26.	Although the McConnell case is of considerable assistance and gives guidance to tribunals, it would be somewhat inaccurate to suggest that it was a landmark decision completely changing the practitioner’s perception of the law.  Indeed, in his judgement Mr Justice Morrison notes that at the hearing of the matter before the Employment Tribunal, those acting on behalf of the employers accepted that the failure to provide and implement a grievance procedure could amount to a breach of contract.  The issue in that case, was not whether there was a contractual duty of the employer, but whether its breach was sufficiently serious to justify the employees walking out.   Further, it is pertinent to note that all the Employment Appeal Tribunal is saying in circumstances such as those that pertained in the McConnell case was that it was open to the Tribunal to reach that decision and Mr Justice Morrison’s judgment at paragraph 18 makes it clear when he says this:-   

“Accordingly, we consider that the industrial tribunal was entitled to reach the conclusions which it did on the evidence before it, and it has not misdirected itself in any way”.

27.	Mr Justice Morrison at paragraph 7 of that decision summarises the decision of the Industrial Tribunal in these words:-

They noted that neither man was provided with a written statement of the terms and conditions of his employment, which would have specified the method of pursuing a grievance.  In his written statement… the employers’ chairman said he was well known to see any employee who has a grievance or other problem.  As the tribunal noted, the employees tried to speak to the chairman, but were rebuffed.  The tribunal was of the view that any grievance procedure should have incorporated within it some kind of time limit, so as to ensure that grievances were nipped in the bud.  In the absence of any grievance procedure in the contract of employment the employees’ grievances, instead of being considered and dealt with promptly, were allowed to fester in an atmosphere of prevarication and indecision.  The industrial tribunal concluded, and I quote:-
“we think that this failure by the employers amounted to a breach of contract”.   

28.	It should be noted that the factual background to the McConnells case was very different from that which pertains in this case.  Both the employees suffered a drop in their salary because of a change in the mode and method of the company’s operations.   Mr Maloney seemed to have been offended by the suggestion the employees should have seen the Chairman whom they requested to see and said that he would deal with it himself.   Indeed, before Mr Maloney’s appointment in July 1992, they had sought assistance from their manager but nothing was done about it.   Thereafter, in September they were told by Mr Maloney that whilst he would do utmost to solve the problem, nothing could be done immediately.  The employees pressed for action and pressed for an interview with the Chairman, but they were told by the Chairman’s secretary that such an appointment had to be made through Mr Maloney.   They both resigned the following day claiming constructive dismissal. 

29.	In this case whilst the Respondents’ action was criticised by the Tribunal it is correct to note that the Tribunal found no criticism in the Respondents’ conduct prior to the 28th March 1996 could be upheld.   It found Mr Jackson to be an impressive witness and that from assuming responsibility for dealing with the matter in early March and falling ill on the 28th March, he conducted the matter in a thorough and conscientious manner.  It was critical that the letter written to the Applicant on 11th April 1996 was both mistaken and misleading.  Mr Jackson was not on holiday and the Respondents were not justified in expressing the hope he could be back at work shortly.

30.	Mr Mackay, who appears for the Respondent, points out that the Tribunal in paragraph 31 of their decision, considered all that occurred between the Applicant’s letter of 20th January 1996 and her letter of resignation dated 9th May 1996.  Mr Mackay submits that the Tribunal asked itself the right question, namely whether the Respondents’ action taken together amounted to a breach of the implied contractual obligation of trust and confidence.  He notes that the Tribunal’s conclusion that looked at as a whole and viewed objectively, the Respondents’ conduct does not show an intention to no longer be bound by the contract was therefore not repudiatory.  There was no immediate prospect of the Appellant returning to work.

31.	We have had the opportunity, which the preliminary tribunal did not have, of having the notes of evidence as to what Mr Jackson said about his involvement in evidence and we have to say we consider it was open to the Tribunal to decide as they did that Mr Jackson was an impressive witness and that no criticism could be made of the way in which the company acted prior to Mr Jackson’s illness on 28th March.

32.	The Tribunal in paragraph 31 of their decision rejected the Applicant’s claim that the Respondents’ conduct showed that it was not taking seriously the Applicant’s position.  The Tribunal noted that two long meetings with her and the steps taken by Mr Jackson clearly showed the Respondent was treating very seriously the Applicant’s application for job change and the grounds which she had submitted.  In our view, that was a decision to which this Tribunal was entitled to reach.  They had seen Mr Jackson in evidence and certainly the notes of evidence we have do not suggest in any shape or form that there was a perverse decision.  

33.	We accept that it might have been preferable had the Tribunal mentioned the case of McConnell since that would have shown that they had it in mind.  It had been cited by Mr Mackrell to them.  Nevertheless, we consider that in the context of this case, the decision which they reached was certainly a permissible option on the evidence before them.  We note that in the House of Lords case Piglowska v Piglowski a decision of the House of Lords 1999 (3) All England 632 at 643 Lord Hoffman gives powerful reasons why appellate courts should look with great care and scrutiny before reversing decisions made by the Tribunal of fact which had the opportunity of seeing the witnesses.

34.	We have come to the view that the only option open to us is to dismiss this appeal.  Although the grounds were arguable, on fuller investigation and fuller argument, it is our view that it was open for Tribunal to reach the decision they did.  We therefore dismiss the appeal.