Appeal No. UKEAT/0404/05/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 October 2005
Judgment delivered on 31 January 2006

Before
HIS HONOUR JUDGE RICHARDSON
MR D CHADWICK

MR C D EDWARDS

IAN JAMIE	APPELLANT

MANAGEMENT SOLUTION PARTNERS LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR CLIFFORD DARTON
(of Counsel)
Instructed by:
Edward Harte & Co
Solicitors
6 Pavilion Parade
Brighton 
East Sussex BN2 1RA	
For the Respondent	MR TIM MORRIS
(Solicitor)
Mason Hayes 
Solicitors
The Cornshed
Offley House
55 Congleton Road
Sandbach
Cheshire
CW11 3DL	

SUMMARY

Unfair Dismissal: Constructive Dismissal

In considering the Appellant’s case of constructive dismissal the Tribunal ought to have addressed itself to the Respondent’s e-mail dated 11th December and considered whether the Respondent thereby committed a repudiatory breach of contract and whether the Appellant resigned in response to it.  

HIS HONOUR JUDGE RICHARDSON

1.	This is an appeal by Mr Ian Jamie against a judgment of the Employment Tribunal sitting in Croydon dated 7 February 2005.  Mr Jamie was employed by Management Solution Partners Limited (“MSP”) from 25 October 2002 until 17 December 2003, when he resigned.  Before the Tribunal he brought two claims.  Firstly, he claimed a bonus payment in respect of the quarter ending September 2003.  That claim was dismissed by the Tribunal and there is no appeal.  Secondly, he claimed constructive unfair dismissal; that claim was also dismissed by the Tribunal, and is the subject of this appeal.

2.	The grounds of Mr Jamie’s appeal turn on the effect of a single e-mail dated 11 December 2003 from MSP to himself.  He says the e-mail amounted to or evidenced a repudiatory breach of contract by MSP, and that he resigned in response to it.  MSP denies that the e-mail was repudiatory, or that Mr Jamie resigned in response to it.  MSP further submits that the argument which Mr Jamie seeks to make good on appeal was never raised before the Tribunal and is not open to him now.  MSP further submits that (though the e-mail was in the Tribunal’s bundle by agreement) it was inadmissible because it was marked “without prejudice and subject to contract”.  

3.	Those, then, in broad terms are the issues.  Was the e-mail repudiatory?  Did Mr Jamie resign in response to it?  Was the e-mail admissible?  Is the point open to Mr Jamie on appeal?  In considering those issues, it must always be borne in mind that the Appeal Tribunal is concerned only with questions of law.  Issues of fact, unless they admit of only one answer, are for the Tribunal to determine.  

The Facts
4.	MSP employed Mr Jamie in October 2002 as principal consultant, responsible for and head of a part of MSP’s business known as OLAP Solutions Processing – a type of database technology.  He signed a written contract of employment on 22 November 2002.  His salary was £55,000.  In addition, he was entitled to bonus in accordance with a scheme annexed to the contract.  The contract also provided (Clause 9(c)(i):-
“The bonus formula used will be reviewed on an annual basis and may be modified from time to time to ensure that it continues to reflect the priorities and direction of the business”.

5.	As the Tribunal found, the bonus scheme was altered by agreement in January 2003.  The altered scheme is found in an e-mail from MSP’s Mr Stringer to Mr Jamie dated 15 January 2003.  

6.	The bonus in the first two quarters of 2003 was to be based in part on gross fees brought in by Mr Jamie himself and in part on gross fees for projects brought over by him and undertaken by others.  Nothing turns on the provisions relating to bonus for those quarters.  

7.	However, the bonus in the third and fourth quarters of 2003 was to be based on 15% of the gross fees of OLAP as a whole.  No doubt by this time Mr Jamie was expected to be fully in charge of an responsible for OLAP.  But there was an important condition.  This reads:
“If profit of MSP on quarterly basis drops below 10%, bonus plans capped pro rata”.

8.	This provision became a source of contention later in the year.  MSP said that in the third quarter it made no profit at all, and therefore no bonus was payable.  It also said that if in any quarter, the profit was less than 10%, the bonus would be reduced so as to adjust the net profit to 10%.  

9.	It is clear that from October 2003 onwards at latest the relationship between the parties was deteriorating.

10.	On the one hand, Mr Jamie was dissatisfied with the position as regards third quarter bonus.  He was told on 13 October that he would not be receiving any bonus, because the company had made a loss.  In the same e-mail, he was told that MSP wished to discuss a different way of calculating bonus for the last quarter.  Mr Jamie replied that he would not have agreed to the new formula in January if he had known its effect.  

11.	On the other hand, MSP were dissatisfied with Mr Jamie’s performance as principal consultant and head of OLAP.  In an e-mail dated 11 November, Mr Stringer said it was clear that Mr Jamie’s role needed to change as he was not able to meet the performance levels MSP required of a head of OLAP.  

12.	In that very e-mail, Mr Stringer offered Mr Jamie an alternative role as a senior consultant at a reduced base salary and with a different bonus scheme.  The bonus was expressed to start at a point in future and not to form part of his employment contract.  On 18 November, Mr Jamie declined that offer. 

13.	The Tribunal found on 24 November, Mr Stringer expressed regret that Mr Jamie had decided not to accept the new post and asked him formally to submit his resignation in letter form for the record.  There are no further findings in the Tribunal’s reasons as to what occurred at this time.  Mr Jamie did not resign; rather he sent an e-mail suggesting that MSP’s solicitor should prepare a Compromise Agreement.  His words were:
“…may I suggest that in order to expedite the separation process your solicitor prepare a Compromise Agreement?  This would, of course, be without prejudice and subject to contract”.

14.	There then followed three e-mails between the parties from which it is necessary to quote extensively.  First, on 11 December, Mr Jamie e-mailed Mr Stringer.  He said he was still awaiting a formal response “regarding my separation from MSP”.  He set out the history, referring to the ultimatum on 6 November, which he described as an ultimatum that he must either accept demotion or be dismissed.  He said he was disappointed and surprised by this, because he had not previously received any indication of dissatisfaction.  He said he had been waiting to her a substantive response from MSP since his e-mail of 25 November.  He pointed out that he had continued to work diligently for MSP.  He asked for a substantive response within 24 hours.  He said:
“I am now at the end of my tether with this matter.  It is clear to me that the trust and confidence between us has irrevocably broken down; I sincerely doubt that it can be restored.  This matter is causing me significant stress and upset: the delay on your part in failing to resolve things are adding to this”.

15.	Secondly, on that very day, Mr Stringer replied to him.  This is the e-mail on which the appeal turns, and we must quote it extensively.

16.	The text of the e-mail itself read as follows:
“Please find attached a document detailing a number of options I should like you to consider.  I regret that this has taken some time to produce, but as I explained a few days ago, I have been waiting for input from our legal advisors.
From MSP’s perspective, trust and confidence has not irrevocably broken down between us, and I believe our relationship can still be put firmly back on track.  
Additionally, I have noticed your pro-active work at Camelot of the past couple of weeks and your close co-operation with Antony to secure substantial new business there.
I look forward to your considered response.”

17.	Attached to the e-mail was a file entitled “Options for Consideration”.  This was headed “Without Prejudice and Subject to Contract”.  It provided as follows:
“First of all, the alternative position I offered was not a demotion, it was intended as an option for you to consider in view of the comments you made at our recent review meeting and on the phone since.  
Leaving aside my concerns regarding you performance as ‘Head of OLAP’ for a moment, during those conversations, you expressed concern about your busy working routine in London, travel time, needing more free personal time and generally wanting to take a wider look at your career plans.  I thought this new position might have better suited your needs just now.
Regarding your position "with MSP as 'Head of OLAP’, it is clear from our regular performance meetings that you have consistently under performed since joining MSP. I have previously set my comments out in an email to you and I would also refer you to a number of verbal comments and warnings over the past twelve months (including one on 9th April 2003 in the presence of another company director). It is clear therefore that the situation has to be rectified.
It was your level of performance and your personal circumstances that gave rise to my earlier offer to switch roles. As you have so far decided not to accept this alternative role, I have summarised the current options available to you.  I must stress that I am reluctant to dismiss you at this stage as you have suggested, as I believe you have the ability to do a good job for MSP if you were to put your heart into it.
I would like to offer you the following options.  
1. 	You remain in your role as ‘Head of OLAP’ but this would be subject to review after a further 6 months.  During this time, I would wish to put in place an intensive appraisal, performance monitoring and business counselling programme to advice about your existing level of performance.  
To document things more formally, I will send you a list of your responsibilities (as defined in your employment contract) and the specific objectives and targets in your Ql-Q3 2003 bonus plan.  Against these I will indicate how you have performed, and include notes where appropriate. If you have any comments, please include them on the form and email it back to me.
As explained before, your bonus plan for Q4 2003 and onwards will be based purely on your own personal chargeability until such a time as your performance as 'Head of OLAP' improves to meet the required standard.  Your base salary will remain the same. 
2.	You reconsider the new role I have previously offered to you.  Again, I would also with this to be subject to such appraisal and monitoring as set out above.  Equally, your bonus targets would be clearly documented.  A formal written warning about your existing level of performance would also be provided to you.  
3.	If after careful consideration you are unable to accept any of the above two offers, then there is the option for you to resign from your employment and you would be required to give 3 months notice.  
Please would you carefully consider all of the above?  I must now place a timetable on this position being resolved and therefore please would you provide me with your decision as to which option you wish to follow by close of business on 19th December 2003.  If you do not let me know then option one will be introduced”

18.	Two features of this e-mail should be noted.  . 

19.	Firstly, it will be recalled that according to the January agreement about bonus, in the fourth quarter Mr Jamie was to receive a bonus based on gross fees of OLAP as a whole.  The first option offered a bonus for that quarter based purely on Mr Jamie’s own chargeability.  Option 1 therefore entailed a significant change to Mr Jamie’s existing bonus entitlement.  Secondly, it will be seen that in default of a reply by 19 December, Mr Stringer stated that he would introduce option 1.  The e-mail accordingly did not allow for Mr Jamie’s existing contract to continue.  Either he had to take the new role offered (option 2) or he had to resign (option 3) or he had to accept that his existing role continued, but with a significant alteration to his existing bonus entitlement for the fourth quarter of 2003.  

20.	The final e-mail from which we must quote extensively is the e-mail of Mr Jamie dated 17 December 2003.  
“I acknowledge receipt of your e-mail of 11th December 2003.
I have carefully considered its contents and have discussed my position at some length with my solicitor.
I am very disappointed, to say the least, that it took you 2 weeks to produce this document and that it contains little that we have not already discussed.  You have already offered me a demotion and asked me to resign, both of which I rejected some weeks ago.  The third option that I should stay in my current role with a different bonus plan is not materially different from the demotion already offered.  I have previously suggested to you that your solicitor should prepare a Compromise Agreement, which you have declined.  
As I indicated to you in my e-mail of 11th December 2003, I am very upset about this matter; it has caused me a great deal of stress which has resulted in a number of physical symptoms including difficulty sleeping and sickness.  I reiterate the point that in my opinion trust and confidence between us has broken down.  As I informed you on 11 December 2003 I am at the end of my tether with this matter.
By your behaviour you have provided for several significant breaches of contract including:-
a.	A failure to pay any bonus without any proper explanation.
b.	The sacking ultimatum provided in the event that I did not agree to a demotion.
c.	Various and continuing attempts to vary ultimately the terms of my contract of employment, which have been accompanied by various threats, including dismissal and disciplinary action.  
d.	Breach(es) of the implied term of trust and confidence between us, which has irretrievably broken as a consequence of your conduct over these past several weeks.  
e.	Suggesting on previous occasions that I have been spoken to formally by way of warning and suggesting that there be a formal record of warning placed on my personal file in the event that I remain in employment; this is without any due process entered into.
All of this conduct has effectively made by position within the Company intolerable and I now conclude that by your actions you have brought by employment contract to an end.  
As of today, I consider my contract of employment to be at an end and that I have been constructively dismissed”.
21.	In a reply dated 19 December, Mr Stringer denied the allegation of constructive dismissal.  He denied any ultimatum had ever been given.  He said Mr Jamie had always been employed, and that he had terminated his own employment by his resignation.  

The Tribunal’s Reasons
22.	On the question of bonus for the third quarter, the Tribunal found that the amendment made in January 2003 was clear and that MSP was not contractually bound to pay a bonus in the circumstances.  There is no actual finding that MSP made a loss in the third quarter of 2003, but this seems to be the basis of the Tribunal’s reasoning.  

23.	On the question of constructive dismissal, the Tribunal observed that Mr Jamie’s case was based on breach of the implied term of trust and confidence, which they quoted from Mahmud v Bank of Credit and Commerce International GA [1997] ILR 606.  

24.	The Tribunal’s reasoning centred on what occurred in November, in particular at a meeting on 6 November and in a subsequent e-mail dated 11 November.  In paragraph 12, the Tribunal set out the case of the parties as to what occurred in November.  In paragraph 12, the Tribunal set out the respective cases of the parties.  
“The Claimant's case is that at that meeting he was given an ultimatum that he could either accept an alternative job which was in effect a demotion or be dismissed because of his lack of performance. His evidence was that he had been very surprised as there had been no criticism of his work up to then. He also said he had been given no warning of the nature of the meeting which he referred to as "disciplinary". The Respondents deny giving any ultimatum. Their case was that he had not met the performance levels they expected from him as head of OLAP and were trying to find him another role”.

25.	In paragraph 13, the Tribunal set out its conclusions as to what occurred in November.  The Tribunal said:
“The email of 11 November following the meeting states that quarterly reviews had been held at which aspects of his work had been discussed. He had also been shown figures indicating that his costs exceeded the profits from his work. We do not accept that the Claimant did not realise that his performance was being questioned. Although he refers to the meeting as a disciplinary meeting the email of 11 November makes it clear that it was a review of his performance. We do not accept that an ultimatum was given requiring the Claimant to accept the alternative job or be dismissed. The fact was he did not accept the job but was not dismissed. Even the email requesting him to submit his resignation was more in sorrow than in anger”.

26.	Although, as we have seen, Mr Jamie continued to work until 17 December, and actually resigned following Mr Stringer’s e-mail dated 11 December, there is little in the Tribunal’s reasons about the e-mail dated 11 December, or about the matters which Mr Jamie set out in his e-mail dated 17 December in which he resigned.  The Tribunal had those e-mails in its papers.  It had referred to them succinctly in its summary of the facts (paragraph 7 of the reasons).  In its conclusions, the Tribunal said only:
14.	The Respondents in an email of 11 December (p 162) gave options for him to consider and Mr Stringer expresses his reluctance to dismiss him. The options did include the Claimant receiving formal warnings about the level of his performance but these were not stated to be final warnings.
15.	There is nothing to suggest that if he had not resigned the Respondents would not have gone through a proper dismissal process had they not been able to find alternative work”.
27.	The Tribunal’s overall conclusion was:
“16.	We find that the Respondents have not by their conduct shown an intention not to be bound by the contract of employment. They did not breach the implied term of trust and confidence and the claim of constructive dismissal fails”.
This formulation shows that the Tribunal had well in mind the question whether MSP had shown an intention not to be bound by the contract of employment.  Whether they regarded it as an independent ground of repudiation, or as an aspect of the implied term of trust and confidence, is less clear.

Is Mr Jamie Raising a New Point?
28.	Mr Jamie’s grounds of appeal concentrate exclusively on MSP’s e-mail dated 11 December.  There is (quite rightly) no attempt to re-open the Tribunal’s findings about the meeting in November.  On behalf of Mr Jamie, it is submitted that the e-mail dated 11 December was a repudiation of the terms of Mr Jamie’s contract of employment.  It evinced an intention not to be bound by the terms of Mr Jamie’s contract or it breached the terms of trust and confidence implied into that contract.  In particular, the e-mail clearly showed that MSP did not intend to honour the contractual basis of the bonus payable for the fourth quarter of 2004, but rather to impose a different bonus without more ado on 19 December 2004.  It is submitted that an emphatic denial by an employer of his obligation to pay an agreed salary or wage, or a deliberate resolution not to comply with his or her contractual obligations in relation to pay and remuneration will normally be regarded as a repudiatory breach of contract: see Cantor-Fitzgerald International v Callaghan [1999] IRLR 235 at paragraphs 41-42.  

29.	We will return later to the substance of the argument about the e-mail dated 11 December.  But it is convenient to say, at this point, that we find it surprising at first sight that the exchange of e-mails in December plays so little part in the Tribunal’s reasoning.  The resignation e-mail, which we have quoted, expressly complains about the e-mail dated 11 December.  It expressly refers to the question of failure to pay bonus, and continuing attempts to vary unilaterally the terms of his contract of employment.  As the Tribunal itself observed, Mr Jamie was not dismissed in November.  The Tribunal might have added, as is plain from the exchange of e-mails which we have quoted, that Mr Jamie went on working until December, and resigned only following the e-mail dated 11 December.  We might therefore have expected the Tribunal to ask and answer the question whether the e-mail dated 11 December was repudiatory in nature. 

30.	On behalf of MSP, it is submitted that Mr Jamie, in concentrating on the e-mail dated 11 December, is raising a new point for the purposes of the appeal, which he should not be permitted to raise.  MSP submits that it is abundantly clear from the originating application, witness statements and proceedings before the Tribunal that this was so.  It is submitted that the ground of appeal is effectively barred because it was not taken during the hearing: see Kumchyk v Derby City Council [1978] ICR 116, consistently applied subsequently in many cases by the Appeal Tribunal and the Court of Appeal.  

31.	Pursuant to a direction given by HHJ Richardson shortly before the hearing of this appeal, the parties brought relevant notes of submissions and evidence, so that the Appeal Tribunal could understand what occurred in the Tribunal below.  We have considered those notes, which were agreed, and also the parties’ pleadings and witness statements.  For the reasons which appear below, we are satisfied that the Tribunal ought to have considered whether the e-mail dated 11 December was repudiatory, and whether Mr Jamie resigned in response to it.

32.	We begin with the Originating Application.  On behalf of MSP, it is submitted that the Originating Application did not expressly mention the e-mail dated 11 December.  This is true, but the Originating Application expressly referred to Mr Jamie’s communication to MSP on 17 December that he regarded himself as constructively dismissed, and to MSP’s attempt to unfairly and unilaterally alter the terms of his contract of employment.   

33.	We turn to the witness statements.  Mr Jamie’s witness statement expressly referred to December correspondence from MSP, including the e-mail dated 11 December and a further communication dated 14 December.  

34.	It is illuminating to see how this e-mail was dealt with in Mr Jamie’s statement.  At paragraph 45 he said that there was “little if anything new within the correspondence”.  This is because his case was that he was first given an ultimatum in November, a case which (as we have seen) the Tribunal rejected.  However, if the Tribunal rejected his case that he was effectively given an ultimatum in November, it did need to consider the e-mail dated 11 December which (as we have seen) contains a list of options, none of which matches Mr Jamie’s existing entitlement.  

35.	In our judgment, the true position was as follows.  Mr Jamie’s case was that MSP’s stance towards him amounted to a repudiatory breach of contract, and that this stance was consistent through November and December until the point where he resigned on 17 December.  So far as Mr Jamie was concerned, the e-mail dated 11 December effectively confirmed the stance of MSP in November – that his existing contract of employment was not being honoured.  If the Tribunal rejected Mr Jamie’s case about November, as it effectively did, it was incumbent upon the Tribunal to go on and consider whether the e-mail dated 11 December was repudiatory.  

36.	In opening his case, Mr Jamie’s Counsel said, according to a note which has been agreed:
“Clear Respondent invites Applicant to resign and Respondent makes offer [Applicant] takes lesser position or old job but bonus structure changed to dramatically reduced amount payable”.

37.	In examination-in-chief, Mr Jamie was taken to the e-mail dated 11 December.  He said that the proposal as to bonus for the fourth quarter in that e-mail was on revenue generated by him alone and would be “sig. lower”, which we take to mean significantly lower.  

38.	In these circumstances, it seems to us that the point was clearly made, as part of Mr Jamie’s case, that he was being offered a lesser position or his old job with a bonus structure changed to dramatically reduce the amount payable, and that the 11 December e-mail was deployed as part of this case.  

39.	The hearing before the Tribunal started on 1 July 2004 (we are told, only shortly before lunch).  It was adjourned to 27 October 2004.  We are told that there was very limited time for submissions on that day, and we have no useful note of the closing submissions.  There was no provision for written closing submissions to follow.  In retrospect, it would have been helpful if there had been an order for written closing submissions, especially since the Tribunal was not able to reconvene to consider its decision until 28 January 2005.  But, irrespective of whether there was any closing submission on this point, we are satisfied that it was a point which the Tribunal ought to have considered.  In our judgment, therefore, Mr Jamie is not raising a new point on appeal and his ground of appeal is open to him.  

40.	For completeness, we mention one interlocutory aspect of the appeal.  By order dated 6 July 2005, directions were given for a full hearing of the appeal.  MSP’s Respondent’s Notice which took the point that the ground of appeal was not open to Mr Jamie, was of course subsequent to this order.  It was therefore only when pre-reading for the full hearing of the appeal, that a judge of the Appeal Tribunal first appreciated that this point was being taken.  HHJ Richardson, on appreciating the point, offered the parties a stay of the appeal so that the Tribunal could be asked 
(a)	whether it understood Mr Jamie’s argument to include the assertion that the e-mail dated 11 December constituted a repudiatory breach and that he resigned by reason of it; 
(b)	to provide any note of how the parties dealt with the e-mail dated 11 December during the hearing; and
(c)	depending upon its answer to (a), to amplify any reasons the Tribunal had for not treating the e-mail of 11 December as repudiatory.  
This suggestion, however, was made to the parties only the day before the hearing, and it was provided that the hearing should go ahead unless both parties were agreeable to it.  If both parties had been agreeable, the appeal would have been stayed to enable the Tribunal to comment on these questions (see as to the Appeal Tribunal’s power the recent decision of the Court of Appeal in Barke v Seetec Business Technology [2005] IRLR 633).  MSP was not agreeable to this course, and the appeal hearing went ahead.  The Appeal Tribunal no doubt retained a power to stay the appeal in order to obtain further assistance from the Tribunal if that course was necessary in the interests of justice.  However, for the reasons we have given, we have reached the clear conclusion that Mr Jamie’s ground of appeal is open to him.  

Was the E-Mail Admissible?
41.	It is common ground that the e-mail dated 11 December 2003 was in the Tribunal’s papers.  Although the document attached to the e-mail was sent on a without prejudice and subject to contract basis, MSP’s Mr Stringer in his witness statement said that this was waived for the purpose of the hearing.  However, on MSP’s behalf, it is submitted that, because the e-mail dated 11 December had not been expressly pleaded as repudiatory, waiver of the attachment’s privileged status can be withdrawn, and the e-mail is therefore inadmissible.  It is submitted that MSP waived reliance on the e-mail only in order to demonstrate that, contrary to Mr Jamie’s contention, it had responded in a timely manner to his requests.  Now that the e-mail is being relied on for a different purpose, it is open to MSP to claim privilege.

42.	We reject this contention, for the following reasons.  Firstly, and most fundamentally, we do not think MSP is entitled to claim privilege on the attachment to the e-mail dated 11 December.  If the attachment did no more than set out settlement proposals, privilege would attach to it.  But the e-mail plainly went further.  It set out in clear terms what MSP would do in the absence of any response to the settlement terms.  It was, in effect, an ultimatum; if you do not accept option 2 or option 3, option 1 will be imposed upon you.  Option 1 was not in accordance with Mr Jamie’s existing contractual rights.

43.	The purpose of the “without prejudice” rule is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement.  The rule is not absolute.  Resort may be had to “without prejudice” material for a variety of reasons when the justice of the case requires it.  The Court will not permit the phrase to be used to exclude an act of bankruptcy or to suppress a threat if an offer is not accepted (see Rush v Tompkins [1989] AC 1280 at 1300 per Lord Griffiths).  

44.	Secondly, for the reasons we have already given, we do not accept that the e-mail dated 11 December was out-with Mr Jamie’s case.  

45.	It was further submitted on Mr Jamie’s behalf that since MSP had waived privilege attaching to the e-mail, it could not constrain the use made of it by Mr Jamie: see Sumatra Limited v Sinclair Roche & Temperley [2000] 1 WLR 2453 at 2465.  In principle, this submission appears to us to be correct, but since we have in any event decided that the e-mail and its attachment were admissible, our decision does not rest on this point.

Was the E-Mail Repudiatory?
46.	In our judgment, Mr Jamie has a strong case for saying that the e-mail dated 11 December – in particulars its attachment – was repudiatory.  As we have explained, Mr Jamie was entitled to a bonus for the fourth quarter of 2003 based on 15% of the gross fees of OLAP as a whole.  Option 1 expressly withdrew this provision as regards the fourth quarter of 2003, providing that the bonus would be based purely on his own personal chargeability.  This was inconsistent with his existing contract.  Options 2 and 3 were likewise inconsistent with his existing contract.  The e-mail expressly said that Option 1 would be introduced on 19 December if there was no reply from Mr Jamie.  

47.	Against this background, we find it difficult to understand the Tribunal’s conclusion that MSP had not by its conduct shown an intention not to be bound by the contract of employment (paragraph 16 of the reasons).  In our judgment, the Tribunal has not properly addressed the e-mail dated 11 December 2005. 

48.	On behalf of MSP it was submitted that the closing words of this e-mail did not more than state a negotiating position, and were therefore not laying down a definite course of action.  We are unable to read the e-mail in that way.  If that had been the only point taken on MSP’s behalf, we would have substituted our own conclusion on the point.  

49.	However, it was also submitted on MSP’s behalf that withdrawal of the existing bonus arrangement for the fourth quarter of 2003 was not necessarily so serious a matter as to amount to a repudiatory breach.  Indeed, in MSP’s Skeleton Argument, it was even submitted that substitution of an arrangement by which Mr Jamie received bonus only on his own work might accrue to his advantage.  

50.	It is for the Tribunal below, not for the Appeal Tribunal, to find the requisite facts and evaluate whether a breach, or anticipatory breach, of contract is so serious as to be repudiatory.  It was Mr Jamie’s case that altering the terms of the fourth quarter bonus would have a significant effect on his remuneration; we have mentioned above the evidence which he gave on this issue.  Speaking for ourselves, we find it difficult it see why MSP would have insisted on altering the terms of the fourth quarter bonus if this was not likely to have a significant effect on Mr Jamie’s remuneration.  Ultimately, however, it is a matter for the Employment Tribunal to address and consider.  The Tribunal should have firmly in mind the principles set out in Cantor-Fitzgerald International v Callaghan [1999] IRLR 235.

Did Mr Jamie resign in response to the E-Mail?
51.	In paragraph 10 of its reasons, the Tribunal stated that in order to claim constructive dismissal, an employee must establish that the employer’s fundamental breach of contract caused him to resign.  However, since the Tribunal did not address the question of whether the e-mail dated 11 December was repudiatory, it neither asked nor answered the question whether Mr Jamie resigned by reason of this e-mail.  Given the terms of Mr Jamie’s e-mail dated 17 December, there appears to be a strong prima facie case that he did so.  However, the point is not conceded by MSP.  The matter is one for the Tribunal to consider.  

52.	In remitting the matter for reconsideration, we point out that the true question for the Tribunal is whether Mr Jamie resigned, at least in part, in response to the repudiatory breach.  That this is the test has been established by the recent decision of the Court of Appeal in Nottinghamshire County Council v Meikle [2004] IRLR 703 at paragraph 33.  As the judgment makes clear, the test is not whether the breach was the sole cause, or even the effective cause of the resignation.  An employee may have more than one reason for resigning; as long as is resignation is in part in response to the repudiatory breach, this is sufficient.  It will be important for the Tribunal to have this test firmly in mind in a case such as this where, on the one hand, there was substantial dissatisfaction between the parties in November, but on the other hand, the employee worked on and performed his contract until after the e-mail dated 11 December.  

Conclusions
53.	For these reasons, the appeal is allowed and the case is remitted for the Tribunal to approach the question of constructive dismissal in accordance with the principles set out in this judgment.

54.	The final question is whether the appeal should be remitted to the same Tribunal or to a freshly constituted Tribunal.  That is, in this case, a finely balanced question.  In favour of a fresh Tribunal are the following factors.  Firstly, Mr Jamie’s evidence was heard as long ago as June 2004.  Secondly, it follows from what we have said above that the Tribunal will need to take a fresh look at the most significant issue it had to determine during the proceedings below.  On the other hand, the Tribunal has already been engaged on the case for three days, and has made substantial findings of fact on important questions.  For the case to start again before another Tribunal would involve significant additional expense and time.  

55.	We bear in mind, as we always do on this question, the criteria set out in Sinclair Roche Temperley v Heard [2004] IRLR 763.  We do not doubt the professionalism of this Tribunal.  No doubt the Tribunal focused mainly on what occurred in November.  It was the Tribunal’s conclusions as to what occurred in November which threw into sharp relief the importance of the e-mail on 11 December.  If its conclusions as to what occurred in November had been different, the e-mail dated 11 December would have been of much less importance.  We can understand how, considering the issues at a Chamber’s day in January, when it had heard Mr Jamie’s evidence in June, and only limited submissions in October, the Tribunal overlooked the importance of this issue.  We have no difficulty in trusting the Tribunal, if it can be reconstituted, to have a fresh look at this point even though it may involve reversing the conclusion it reached on the question of constructive dismissal.  

56.	We make one closing comment.  We are told that by reason of other listing commitments, the Tribunal hearing began late on both the dates when it took place.  This is unfortunate – particularly on the second occasion, when the matter had already been part heard for three months.  When a case goes part heard and there is likely to be substantial delay, it is always open to a Tribunal Chairman to direct that it shall start promptly with no matters listed before it.  We shall, ourselves, give that direction in this case.  On remission, assuming that it can be listed before the same Tribunal, the listing shall be for a day and there shall be no other matters in the list.  The issues on remission are, of course, limited.  If either party wishes the Tribunal to hear further evidence relating to the question whether the e-mail dated 11 December was repudiatory and whether Mr Jamie resigned in response, they must cross-serve such evidence within 28 days of the sealed date of this order and it will be a matter for the Tribunal in the exercise of its case management powers to decide what evidence it will receive.  We think there will, with a prompt start, be plenty of time for the Tribunal to hear any further evidence and hear submissions comfortably within the day.