Appeal No. UKEAT/0179/09/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 and 24 September 2009
Judgment handed down on 23 December 2009

Before
THE HONOURABLE LADY SMITH
MRS C BAELZ
MS B SWITZER

MR T BAMPOURAS & OTHERS	APPELLANT

EDGE HILL UNIVERSITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR I SCOTT
(of Counsel)
Instructed by:
University & College Union Legal Services
Carlow Street
London
NW1 7LH	
For the Respondent	MR P GILROY 
(One of Her Majesty’s Counsel)
Instucted by:
Messrs Eversheds LLP Solicitors
Eversheds House
70 Great Bridgewater Street
Manchester
M1 5ES	

SUMMARY
UNFAIR DISMISSAL
3 “test” cases of some 68 claims at the instance of university lecturers who had had changes to their contracts of employment arising from a national agreement, the Pay Framework Agreement, imposed on them by their employers.  Claimants’ claim that their contracts had thereby been terminated and that in the circumstances they had been unfairly dismissed, which failing, unfairly constructively dismissed, rejected by the Employment Tribunal.  On appeal, Tribunal’s judgment upheld.  

THE HONOURABLE LADY SMITH
INTRODUCTION 
1.	This is an appeal from an Employment Tribunal sitting at Liverpool, Employment Judge D Reed sitting with members.  The judgment was registered on 26 November 2008 and was in the following terms:

“The unanimous judgment of the Tribunal is that the respondents did not dismiss the claimants Mr Suggitt, Mrs Lauke or Mr Haigh.” 

2.	We will continue to refer to the parties as claimants and respondent.  

3.	In the circumstances, it was not necessary for the Tribunal to determine whether or not the claimants were unfairly dismissed but they indicated their opinion on that issue which was that a majority of them considered that had the claimants been dismissed, the dismissals would have been fair. 

4.	The claimants were represented by Mr I Scott, of Counsel, before the Tribunal and before us.  The respondent was represented by Mr P Gilroy QC before the Tribunal and before us.

BACKGROUND 
5.	These appeals arise from three “test” cases out of a group of some 68 claims.  The claimants are Mr Stephen Suggitt, Mrs Karen Lauke, and Mr Ian Haigh.  At the relevant time (25 August 2006), they were employed by the respondent as lecturers.  Mr Suggitt was a senior lecturer, Mrs Lauke was a lecturer/technician and Mr Haigh was a senior lecturer. 

The following narrative is drawn from the Tribunal’s findings and also from the content of agreed documents. 

6.	Prior to 25 August 2006, the provisions of Mr Haigh’s and Mrs Lauke’s contracts of employment relating to remuneration were:

“Remuneration (Please also see section 4 of the Nationally agreed text)
Salary:  spinal column point … on the Lecturer/Senior Lecturer scale, currently, £ … p.a.  It is payable monthly in arrears by direct credit transfer.  In determining your salary review the Board of Governors will refer to national recommendations arising from negotiations between Universities and Colleges Employers’ Association (U.C.E.A) and the recognised unions.

Full details of salary scales and their operation are set out on Human Resources notice board situated in Lady Margaret entrance hall and on the Edge Hill intranet.” 

7.	Similar terms appeared in Mr Suggitt’s contract which referred, for salary matters, to the staff handbook.  The provisions of the respondent’s staff handbook applied to all the claimants.  Its terms included a section headed “Agreed National Text” a section of which was headed:  

“Salary Scale and Bar Progression”

and included:

“4.6.1.	A lecturer on the Lecturer Grade who is responsible for a significant amount of work classified as Higher Education as defined in Schedule 7 of The Education Reform Act (1988) in the year in which he or she is on point 12 of the Lecturer Grade shall transfer to point (b) on the Senior Lecturer Grade when he or she becomes entitled to receive one further increment, subject to having satisfied the efficiency requirements.  If the efficiency or work requirements are not satisfied he or she shall continue to progress on the Lecturer Grade and shall only transfer to the appropriate point on the Senior lecturer scale when the requirements are subsequently satisfied …

4.6.2.	A Senior Lecturer who has reached point 4 of that scale shall only proceed beyond that point where he or she is responsible for a significant amount of work classified as Higher Education during the year that he or she is paid on point 4 of the Senior Lecturer scale, or, if he or she fails to qualify in that year , in a subsequent year.
…
‘a significant amount’ shall normally be interpreted as at least 50 per cent of the lecturer’s work time …

4.6.5.	The following rules applies (sic) to Lecturer/Senior Lecturer bar progression: 

Once lecturers are passed through the bar they will continue to progress up the Senior Lecturer scale;  in view of this the balance of their timetables (as between advanced and non-advanced work) ought as a matter of policy to be broadly maintained in future years, unless there are compelling educational reasons to the contrary.  Similarly, the timetables of those approaching the bar should be planned so that there is not a sudden increase in advanced work, without good reason, during the year spent on the twelfth incremental point” 

8.	Prior to 25 August 2006, the salary scale referred to was a scale applicable only to lecturers.  It was in four sections, three of which were labelled:  Lecturer, Senior Lecturer, and Principal Lecturer.  The lecturer section ran from scale point 7 in incremental steps of single points to scale point 15.  The Senior Lecturer section began at the scale point (b) referred to in paragraph 4.6.1 above, then moved to scale point “0” and then progressed from points 1 through to 8.  There was then an unlabelled section comprising three further scale points, 9, 10 and 11 (referred to in Mr Suggitt’s witness statement as “Senior Lecturer ++”).  The twelfth incremental point referred to above would, accordingly, appear to be at scale point 10 on the Senior Lecturer ++ part of the scale.  There was a “bar” between points 8 and 9.  Scale point 9 required the Senior Lecturer to have assumed additional responsibilities.  Senior Lecturers who succeeded in passing through the bar between points 8 and 9 were entitled to automatic incremental progression each year and would, accordingly, progress to points 10 and 11 on the scale without any further bar applying to them, although they would be subject to the requirements of paragraph 4.6.5 above. 

9.	Mr Suggitt was, prior to 25 August 2006, at scale point 8 on the salary scale for Senior Lecturers but since he had assumed some additional responsibilities, he was being paid a scale point 9 salary.  Not having passed through the 8/9 bar though, he did not have any entitlement to incremental progression.  

10.	Mrs Lauke was, prior to 25 August 2006, at scale point 7 on the Lecturer scale, a new scale point created to accommodate her when she sought to move from the role of technician to the role of lecturer.  Her contract of employment, dated August 2005, indicated that her salary was at points “7-8” but that her commencing salary would be at point 7.  Her contract was subject to a probationary period of 12 months.  The contract also made reference to her being expected to engage in self managed research and scholarly activity.  Her letter of appointment stated:

“I am pleased to advise that following recent discussions … it has now been agreed that your position can be re-graded to an academic post, to be entitled Lecturer/Technician.  The salary range for this post is Lecturer grade 7-8, currently £21,532 - £22,498 (pay award pending) and the re-grade will take effect from 1 September 2005. 
The appointment is subject to the satisfactory completion of a 12 month probationary period………..
… the references to research and scholarly activities in the contract are not applicable to you currently, however, would come into effect if the bar point on your salary range were lifted.  The institution would not, however consider the lifting of this bar until you have completed a Masters degree and the Graduate Diploma in Teaching in HE.”

11.	Scale point 8 on the Lecturer scale was, accordingly, a bar to any further incremental progression for Mrs Lauke and she would not have been able to progress beyond scale point 8 until she had satisfied the respondent that she had acquired the qualifications referred to;  they were plainly stated as pre-requisites to it being lifted. She would then have been required to add research and scholarly activities to her work.

12.	Mr Haigh was at salary scale point 8 on the Senior Lecturer scale.  He would, accordingly, have required to achieve passage through the 8/9 bar on that scale before being entitled to any further incremental progression.  

13.	Different salary scales applied to staff other than lecturers employed by the respondent prior to 25 August 2006.

14.	Over a period prior to March 2004 a Pay Framework Agreement (“PFA”) was negotiated between the unions representing employees working in institutions of higher education and employers’ representatives.  In March 2004 agreement was reached between them to the effect that a single pay scale would apply to all employees, across the board, and that it would be implemented by 1 August 2006. 

15.	The University and College Union (“UCU”), who represented members of the respondent’s academic staff including the claimants (and the remainder of the group of 68), were signatories to the PFA.  Extensive discussions took place over the period March 2004 to July 2006 between the UCU and the respondent.  The respondent had hoped to finalise agreement with the UCU by August 2006.  They did not, however, do so at a meeting on 20 July 2006 and believed that they would not, due to UCU representatives’ holiday commitments, be able to do so prior to the end of August.  By that time, however, the respondent had reached agreement with the union representing support staff, it was anxious that the August pay run be in accordance with the PFA, it believed that there were benefits to staff in the PFA agreement, the PFA would bring about immediate increases in salaries including those of the claimants, the university had genuine concerns that it would be in breach of equal pay legislation and age discrimination legislation if it persisted in operating the old system, and, as explained by the Tribunal at paragraphs 21.13 and 21.14:

“21.13 We remind ourselves of the complexity of the issue being addressed.  The parties were attempting to condense five pay structures into one. … There was very substantial agreement with the UCU.  To a certain extent all that was required was to ‘cross the T’s and dot the I’s’ – a process that the University anticipated would be completed by 25 August with the consent of the UCU.  It was only the fact that the UCU had put themselves the (sic) a position were (sic) they could not be consulted during that period that the collective agreement was not achieved.

21.14 The claimants are entitled to point out that there were loose ends that were required to be tidied up … However, it was always going to be the case that issues would need to be addressed after the collective agreement was concluded ...” 

16.	By letter dated 28 July 2006, the respondent’s Vice Chancellor summarised the key elements of the respondent’s proposals for implementation of the PFA and invited all members of staff to complete and return a ballot paper indicating whether or not they supported the proposals, by 21 August 2006.  The UCU advised its members to boycott the ballot.  Otherwise an overwhelming majority of the respondent’s staff voted in favour of the proposals.  To include the salary increases that would occur on implementation of the PFA in the August pay run, a decision to implement the changes had to be made by 25 August 2006.  The respondent decided to proceed to implement the PFA in accordance with what had been proposed to staff in the ballot letter and wrote to the claimants by letters dated 25 August 2006, intimating that that would occur. 

17.	By that date, job evaluation studies had been carried out in respect of each claimant in the course of which their HERA (Higher Education Role Analysis) scores had been arrived at.  Those scores were applied so as to show where, on the new PFA single salary scale, each claimant was positioned in terms of a scale referred to as “salary point”.  There were 12 grades and 51 incremental steps on the salary point scale under the new PFA arrangements.  Lecturer grade began at grade 7.  Grade 7 comprised pay points 27-30 (4 incremental steps).  Grades 9 and 10 covered Senior Lecturer.  Grade 9 comprised scale points 36-40 (5 incremental steps) and grade 10 comprised scale points 41-45 (5 incremental steps).  Employees would be entitled to automatic incremental progression within a grade but  moving to a higher grade would be subject to their being successful in an application to have their role reviewed, there being three dates each year when staff would be able to make such an application (see:  Vice Chancellor’s letter of 28 July 2006).  Staff would continue to receive any annual pay increase awards. 

18.	The effect for each claimant, as intimated in writing to them, was as follows:

19.	Mr Haigh had, in his role as Senior Lecturer at scale point 8 under the old system, been paid a salary of £37,521 for the year to August 2006.  An annual pay award was due to take effect so as to increase that salary to £38,647.  He was advised that, going forward, he was at salary point 43 on the new scale and that he would receive a salary of £38,772 for the forthcoming year, a higher salary than he would have received under the old system.  At point 43, there were two incremental steps before he reached the point at which he would be unable to move forward to the next increment without a successful application for review. Under the old system, he was up against a bar; he could not move forward incrementally at all without overcoming the bar.  To achieve that, he would have had to take on additional responsibilities to move forward.  

20.	There was, however, another matter that affected Mr Haigh under the new system.  It was that he was classed as being “in development” which meant, essentially, that he was being overpaid for the duties that he was performing.  He was, accordingly, advised, in the documents sent with the letter of 25 August 2006 that he was “in development” and that that meant:

“Staff will be provided with a range of support to enable the grade to be increased during the next 12 months.  A meeting will be arranged with the role holder, their manager and a Role Analyst to discuss the role profile, the scoring and to ensure that all possible evidence has been considered.  The Staff Development Unit will also provide assistance in drafting Personal Development Plans.” 

21.	Explanation of the “in development” classification was also provided by the Vice Chancellor in his letter of 28 July under the heading “Red Circles”.  It states:

“The policy on red circles will not be implemented in 2006/7 and roles that may have been red-circled will instead be classed as ‘in development’.  Staff in ‘in development’ roles will receive the full pay award for 2006/7.  Salaries will not be frozen.  During the 2006/7 academic year a range of support measures will be provided to help develop these rules to resolve any potential issue of red circling.  At the end of 12 months in the event that a red circle continues to exist we will hold individual discussions at that time.” 

22.	Thus, Mr Haigh required, in the year 2006/7 to take on additional duties or otherwise demonstrate that he warranted remaining at the pay point he was at.  The Tribunal refer, at paragraph 16.2, to the position being that if Mr Haigh failed to do so then his salary would be “red circled” at the end of that year i.e. his pay would be frozen without incremental or annual increases until the pay for the point at which he was in fact working “caught up” with that figure.  That appears, however, to be an overstatement of the negative aspects of the changes that affected Mr Haigh.  As the documents show, it had not been determined that he would be red circled at the year end in the event of him failing to take on additional duties etc;  neither the letter of 25 August nor the documents attached to it said that, nor did the Vice Chancellor’s letter.  Whilst it can be seen that there was a risk of red circling, it was by no means certain that that would happen.  The risk could, though, be avoided if Mr Haigh took on extra duties or otherwise showed himself worthy of the pay point he was at.  That was not something he would have had to do to remain where he was under the old system.   

23.	So far as moving forward incrementally was concerned, under the old system, he could not have done so at all without taking on additional duties.  Under the new system, as above noted, he was in a better position.  Assuming he demonstrated that he warranted the pay point that he was at (43), he would not have been prevented from moving forward incrementally until he was at salary point 45 at which stage he would have had to have satisfied the review requirements before moving up again. 

24.	Mrs Lauke had, as a Lecturer (on probation), at scale point 7, been paid a salary of £22,178 for the year to August 2006.  As above noted, her probation was due to expire at the end of August 2006.  The Tribunal found that by 25 August 2006 she had reached an agreement with the respondent that she would become a Lecturer for the following year and “go to a lecturer grade (i.e. would move to a higher grade)” from which we take it that the respondent had indicated that it was satisfied that her probationary status could be lifted and her role would be properly that of lecturer rather than lecturer/technician.  However, the Tribunal also found that no agreement had been reached about what that meant in terms of where in scale point terms she would have been placed under the old scale.  

25.	The letter to her of 25 August 2006 and its enclosures advised her that, under the new system, she was being placed at pay point 28, which was one or more points above her then current salary.  She would, for the following year, be paid £24,886.  That was evidently significantly more than she would have received if the annual pay award had been applied to her previous salary.  In the absence of evidence and findings as to what the claimant would have been paid under the agreement that she would move to the role of lecturer, it could not be concluded that the salary awarded to her under the new PFA system was any less than she would have received hereunder nor can it be ruled out that she was actually in a better position as regards salary than she would have been under the old system. 

26.	As to the question of bars or review points, at salary point 28, Mrs Lauke was entitled to automatic incremental progress up to point 30 (August 2006 salary £26,402).  She would then have to apply for review of her role before being able to pass further up the scale to point 35 (August 2006 salary £30,606).  Under the old system, she would have been entitled to incremental progression throughout the “Lecturer” part of the scale, (to a salary in 2005/6 terms of £30,363) without the need to overcome any bars although, as above noted, she would not have been able to achieve the transfer over to point (b) on the Senior Lecturer scale without satisfying the “efficiency” requirements of clause 4.6.1 in the staff handbook.  Accordingly, there was, under the new PFA system, a hurdle that Mrs Lauke would have to overcome to achieve incremental progression that she would not have had to overcome under the old system.  As to what exactly that hurdle was, however, the Tribunal was unable to make any findings.  At paragraph 19.5, they explain:

“The precise requirement that would be imposed on her to overcome the bar was not entirely clear.  Reference was made to vague requirements in a collective agreement.  We remind ourselves, moreover, that the burden rests with a claimant to establish dismissal and no evidence was given of how difficult it was likely to be to progress.”

27.	Mr Suggitt had, in his role as Senior Lecturer, although at scale point 8 under the old system, been paid at scale point 9, a salary of £38,343.  That was because he had undertaken additional responsibilities but not on a permanent basis.  As a letter to him from the respondent’s HR Manager (Business Operations) confirms, his additional responsibilities had a fixed term and they were due to come to an end on 31 August 2006.  As at 25 August 2006, no decision had been reached as to whether he would be given such additional duties the following year; if he had not been given such duties, his salary would have been scale point 8 under the old system, at £37,521 plus the appropriate annual award taking it to £38,647.  He was, under the new system, placed at salary point 44, with a salary of £39,935.  Rather than being up against a bar, he had an entitlement to a further incremental step before reaching a review point at salary point 45. 

28.	In November 2006, collective negotiations resumed and agreement was reached.  As explained by the Tribunal at paragraphs 21.11-21.13:

“21.11 … in November 2006, collective negotiations had once again commenced, and a deal had been struck with the UCU.  That deal reflected the terms implemented in August 2006 although certain elements of it were clarified by that date.

21.12 … the terms accepted and collectively implemented were acceptable to the UCU … and … not significantly different from the terms imposed in August 2006, …

21.13 … There was very substantial agreement with the UCU. To a certain extent all that was required was to ‘cross the T’s and dot the I’s’ …” 

29.	The reference to there being very substantial agreement in paragraph 21.13 is a reference to the position that had been reached prior to 25 August 2006.  The Tribunal summarised matters at paragraph 21.15:

“In short the majority view was that the University’s actions had broadly reflected those which, had the UCU been available, would have resulted in a collective agreement altering the contracts of the relevant employees in very much the same way that in fact they were altered.” 

The Claimants’ Complaints 
30.	The claimants’ forms ET1 complained that their terms and conditions were fundamentally changed on 25 August 2006 without their agreement and without a collective agreement.  Each claims to have been dismissed as a result.  No complaints beyond that generality are particularised in the ET1’s.  

31.	The claimants also intimated written grievances to the respondent.  Those grievance letters were in similar terms and complained that their contracts were varied without their agreement and without notice, that they were thereby dismissed, that although they were continuing to work that was without prejudice to possible claims of unfair dismissal and wrongful dismissal and that they believed they had been unfairly constructively dismissed under section 95(1)(c) of the Employment Rights Act 1995 (“ERA”).  Again there was no particularisation of complaint beyond that generality. 

32.	A review of what was said by the claimants at their grievance meetings and in their witness statements does not advance matters in that respect either.

33.	The note of the grievance meeting with Mr Haigh shows that his grievance was that he was upset at the way the new system was introduced.  In response to the question:  “What aspect of the new pay and grading structure do you object to?” he stated “Not relevant”.  In answer to the question:  “In what way has this situation had an adverse impact on you?”  He stated:   

“I was initially very upset. It was a bank holiday. I didn’t know who to turn to. I was lost and couldn’t do anything at the time. I had to wait until I came back to work when I could speak to UCU. I felt very vulnerable.”  

34.	In his witness statement, Mr Haigh stated that he was upset that he was “in development” or “red circled” and that that meant his salary would be frozen for two years.  He refers to having to provide evidence that his role and responsibilities justified a new grading scale.  He was thus under a misapprehension as to his position which was in fact as we have explained it above.

35.	Mrs Lauke complained, in a job evaluation process pre appeal form, that under the new system it would take her more than three years to see any benefit in her remuneration.  That also was a misapprehension, as explained above.

36.	At her grievance meeting Mrs Lauke answered “not relevant” to the question of what aspects of the new pay and grading structure she objected to.  She complained of having lost trust in the respondent and wanted an apology.  In her witness statement she stated that she would, under the new system, only see a remuneration benefit over a long gradual two year process, an assessment which was plainly not right.  She stated that receiving the notification through the door shocked her, she didn’t know what to do to move up grades and that she was very upset and angry at the changes being implemented without her being fully aware of them. 

37.	Mr Suggitt, at his grievance meeting, in response to the request to outline the nature of his grievance, stated that he had “nowhere to go.” and added:

“I am at the top of my grade.  But for the up and coming academics it’s very worrying.” 

38.	In response to the question of what aspects of the new pay and grading structure he objected to he stated:

“Not relevant.  Don’t know enough anyway.  We are speaking about new contracts being imposed not pay and conditions.” 

39.	In his witness statement, Mr Suggitt stated that he had expected there to be full negotiations and agreement with the UCU and that he would then have received a new contract.  His grievance was that the respondent had ignored what he considered to be acceptable practice by forcing a new contract on him;  that made him feel unimportant.  He commented that there was no progression above his grade and that as the SL++ grades seemed to have disappeared he was “probably” technically worse off. 

The Tribunal’s Judgment 
40.	The Tribunal’s judgment was referred to by HHJ McMullen QC, at the rule 3(10) hearing as being jejune and it was heavily criticised by Mr Scott on behalf of the claimants as being deficient in that it failed, he said, to carry out the requisite contractual analysis and “before and after” comparison that was required.  He also criticised some of the language used as being insufficiently precise, such as at paragraph 19.6 where they refer to looking at matters “in the round” and to Mrs Lauke’s position being “somewhat altered” under the new system.  

41.	We do not consider that these criticisms are fair.  Whilst the judgment is shorter than might have been expected in the circumstances of these claims and some of the reasoning is economically stated, we have had no difficulty in concluding that the Tribunal does provide a summary of the basic facts found, the reasons for finding those facts (or not making findings sought, as in Mrs Lauke’s case for instance), the law applied and the reasons why, applying the relevant law to the facts of these claims, they decided as they did. 

42.	Contrary to Mr Scott’s suggestion, the Tribunal have carried out a before and after comparative exercise in the case of each claimant.  In the case of Mr Haigh, whilst they could identify that his new position could be seen as being inferior to his old one (on a basis that may have been somewhat more favourable to Mr Haigh’s case than the documentation warranted, as we have explained) it was not such as amounted to a fundamental change.  

43.	In the case of Mrs Lauke, the Tribunal identified that she would now have to overcome a bar at a point that she would not have had to under the old system but that, as above noted, they could not conclude what that would entail.  They could not, accordingly, conclude that her position was fundamentally altered.

44.	In the case of Mr Suggitt, they identified that his position was markedly superior to that which he had been in previously.  He could not, accordingly, be said to have suffered any adverse change. 

45.	In these circumstances, the Tribunal concluded that the claimant’s contracts of employment had not been terminated. 

46.	Regarding the issue of unfair dismissal, a majority of the Tribunal took into account all the circumstances referred to above and concluded that the respondent had acted reasonably in imposing the changes required to implement the PFA.  The minority view was that the conditions existing at 25 August were not such as to require them to take action at that time and they could have delayed matters. 

Relevant Law 
47.	Section 95(1)(a) of the ERA provides that an employee is dismissed if his contract of employment is terminated.  Section 95(1)(c) of the ERA provides that an employee is dismissed if he terminates his contract of employment in circumstances in which he is entitled to do so. Such circumstances arise where the employer is in fundamental breach of contract.

48.	Two authorities were relied on before the Tribunal and referred to in its judgment, Hogg v Dover College [1990] ICR 39 and Alcan Extrusions v Yates [1996] 327 both of which are authority for the proposition that where an employer unilaterally imposes radically different terms and conditions of employment which, on an objective assessment amount to a removal or withdrawal of the old contract, there is a dismissal.  In Hogg, on the facts, this Tribunal found that on a proper assessment of the facts the employee was “being told that his former contract was from that moment gone”.  In Alcan the Tribunal had found, and this Tribunal agreed, that on a proper assessment of the facts the old contract of employment had been removed and what was offered in substitution was a new and substantially inferior contract. 

49.	What both those cases illustrate, however, is that the issue of whether or not there has been such departure from the original contract as to amount to termination (and therefore to dismissal in terms of section 95(1)(a)) is a question of fact for the Tribunal.  At paragraphs 24-25, Judge C Smith QC, in Alcan comments, in terms with which we would respectfully agree:

“24. In our judgment, with respect to him, the learned judge in Hogg was quite correct in saying whether a letter or letters or other conduct of an employer has such an effect is a matter of degree and, we would hold accordingly, a question of fact for the industrial tribunal to decide.  We fully accept that in many cases to construe letters or other conduct on the part of an employer which puts forward no more than variations in a contract of employment as amounting to a termination or withdrawal of such a contract would be quite inappropriate and wrong. …
25. In our judgment, counsel for the respondents, Mr Bowers, was correct in submitting that whether or not the action of an employer in imposing radically different terms has the effect of withdrawing and thus terminating the original contract must ultimately be a matter of fact and degree for the industrial tribunal to decide, provided they always ask themselves the correct question, namely, was the old contract being withdrawn or removed from the employee?”

50.	As regards the constructive dismissal provisions of section 95(1)(c) of ERA, they will not normally come into play if section 95(1)(a) applies.  Whilst there could, we suppose, be circumstances where dismissal by an employer coincides simultaneously with resignation by an employee it is difficult to think of any other circumstances in which section 95(1)(c) could apply if in fact there has been a prior termination by the employer;  if that has occurred there is no subsisting contract for the employee to terminate.  

51.	Where section 95(1)(c) does arise, the question of whether or not an employee has terminated his contract of employment is a question of fact the answer to which will depend on the particular circumstances of the particular case.  In Hogg, this Tribunal indicated the obiter view that even if they were wrong to conclude there was a dismissal, there was a constructive dismissal on the basis that  the employers were in fundamental breach of contract and:

“The question then arises whether he accepted the employers’ conduct as a repudiation of their obligations to him or whether it has to be said that by his conduct there was, in the event, no acceptance or indeed, an affirmation.” 

52.	Acceptance of repudiation is used there as referring to the position when the innocent party founds on the breach of contract of the other party as entitling him to terminate the contract.  The approach outlined accords with the general contractual principle that acceptance of repudiation requires to be communicated to the party in breach or at least overtly evinced by the innocent party.  We have to confess being in some doubt as to the logic of the approach in Hogg.  If the contractual changes imposed by the employers amounted to a fundamental breach of contract then their actions had terminated the contract.  It could only subsist thereafter if in fact, properly assessed, the changes being imposed by them did not terminate the contract because they did not amount to fundamental breach and in those circumstances the employee would not have been entitled to found on the imposition of contractual changes as entitling him to terminate the contract.  To put it another way, we are not persuaded that a breach which is not so fundamental as to amount to dismissal by the employer can nonetheless of itself and without more, be a fundamental breach for constructive dismissal purposes. 

53.	We turn to another distinct question that arose in the appeal, namely that of what post dismissal facts can properly be taken into account when carrying out an assessment of fairness for the purposes of section 98(4) of the ERA. The question arose in the context of the November agreement.  It is trite that an employer cannot rely on facts not known at the time of dismissal as establishing the real reason for his dismissal:  W Devis & Sons v Atkins [1977] AC 931 where after discovered misconduct could not be relied on as showing what it was that influenced the employers at the time of dismissal.  To put it another way, conduct of the employee unrelated to the real reason for dismissal cannot affect the question of the reasonableness of the decision for that reason.  But that is not to say that all that happens (or could have happened) after the date of dismissal is necessarily irrelevant to a consideration of the issue of whether or not the dismissal was fair.  In West Midlands Co-operative Society Ltd v Tipton [1986] IRLR 112 the House of Lords rejected the contention that when considering the fairness of a dismissal no account can be taken of any new information put before an employer in the course of an appeal hearing that was not available to him at the time of dismissal.  Thus, it is not the case that, when considering the issue of overall fairness which arises under section 98(4) of the ERA, no account can be taken of any post dismissal events or facts not known at the time of dismissal.  What effect they have will depend on the nature of them but we cannot conclude that a Tribunal is bound to ignore them.

The Appeal 
54.	For the claimants Mr Scott submitted that the Tribunal had erred in the following respects:
1.	They misunderstood or misapplied the law in reaching the view that the claimants were not dismissed under either section 95(1)(a) or section 95(1)(c). 
2.	They misunderstood or misapplied the law and/or were perverse in the majority conclusion that if dismissals occurred, they were fair.

55.	We intend no disservice to Mr Scott’s thorough and detailed presentation by stating his argument shortly.  As regards the first part of his appeal, much was submitted to the effect that a comparison of the before and after positions of both lecturers generally and each of the claimants specifically demonstrated that they would experience adverse changes and also that they were left uncertain as to exactly what would happen in the future.  He said that they did not know, for instance, what they would have to do to get through the bar points in the new system.  Mr Scott also, as we have referred to above, submitted that the Tribunal’s contractual analysis was inadequate.  For the fallback proposition that the claimants were, if not dismissed under section 95(1)(a), constructively dismissed under section 95(1)(c), Mr Scott, under reference to Hogg, submitted that the Tribunal had erred in not regarding constructive dismissal as an alternative basis of claim.  Founding on the imposition of the contractual changes by the respondent as being repudiatory conduct by them, Mr Scott submitted that the Tribunal should have asked itself whether there was evidence of it having been accepted by the claimants.  There was such evidence, in his submission, in that the grievances claimed that the claimants had been constructively dismissed. 

56.	Regarding the second part of his appeal, Mr Scott’s  submission ultimately was that the Tribunal had erred in treating the  outcome of further negotiations as relevant and that its determination that the dismissals would have been fair was perverse.  Not only should they not have taken account of the November agreement (W. Devis &Sons Ltd v Atkins [1977] AC 931), they ought not, in any event, to have regarded it as no more than a matter of dotting the I’s and crossing the T’s.  Much detail was involved in it such as agreement as to role “descriptors” which we understand to be lists of the specific elements of each aspect of each role.  In addition to their having had regard to the November agreement, they should have appreciated that these were summary dismissals.  Further, the minority view should have been explained in more detail.  

57.	Finally, Mr Scott submitted that if it was concluded that only one or two of the claimants had been dismissed that would mean that regulation 4(1)(a) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 would not apply to exempt the respondent from compliance with the statutory dismissal procedures  in which case, they would have been automatically unfairly dismissed.  That was because the whole of the description or category to which they belonged had not been dismissed.

58.	Mr Scott invited us to uphold the appeal and substitute a finding that the claimants had been unfairly dismissed.

59.	In the course of his submissions, Mr Scott also referred to ICS v West Bromwich Building Services [1998] WLR 896 for a submission that the Tribunal  was required to analyse the contract against the relevant factual background, to St John of God (Care Services) v Brooks and others [1992] IRLR 546 regarding the importance of fair procedures in a dismissal for “some other substantial reason” and to Callaghan v Cantor Fitzgerald International [1999] ICR 639 for a submission that pay is a cornerstone of the employment relationship.

60.	For the respondent Mr Gilroy QC drew our attention to the overall context in which these claims arose namely that there had been lengthy and extensive consultation, that every claimant received a pay rise, that every claimant received a substantial improvement in pay grading and that that occurred as part of a nationally driven imperative which had regard, amongst other things, to important principles of equality.  Further, it was not a matter of looking at the pre and post contractual positions of lecturers generically.  These cases concerned the contractual positions of these three claimants. 

61.	Regarding the claimants’ first ground of appeal Mr Gilroy submitted, correctly, that the burden of establishing that they had been dismissed lay on the claimants.  The Tribunal was, on the evidence, entitled to conclude that they had not discharged that burden.  Mr Gilroy pointed to the fact that under the old system it was not a matter of lecturers being entitled to uninterrupted automatic incremental progression.  He also pointed, amongst other things, to what exactly was the nature of the complaints made by the claimants in their written grievances, at the grievance meetings, in their ET1s, in their witness statements and in cross examination (the latter under reference to his agents’ notes of the evidence, which though not agreed were not disputed).  Those complaints were not that the new terms as to pay and conditions put them in a worse position.  

62.	As regards section 95(1)(c) Mr Gilroy submitted that either the claimants were correct in saying that they had been dismissed or that was an end of the matter.  If the Tribunal were not entitled to find that the claimants were dismissed (as was the case) then section 95(1)( c) did not arise.  Further, he submitted that there was no acceptance of repudiation in any event.  It was not enough for constructive dismissal for an employee to say that he considered himself to have been dismissed. 

63.	Regarding the case of perversity, Mr Gilroy submitted that it could not be shown that the Tribunal’s decision on fairness was a perverse one.  He referred to the well known passage at paragraphs 93-95 of Yeboah v Crofton [2002] IRLR 634.  The Tribunal referred to a list of factors which showed why they considered the respondent acted reasonably in the circumstances.  It was wrong to suggest that they were not entitled to take account of the fact that agreement had been reached in November.  Just as, in the case of West Midlands v Tipton it was confirmed that factual matters known at the time of a disciplinary appeal could be taken into account even although not known at the time of the original dismissal, in the circumstances of this case, the fact of agreement being reached in November could be taken into account.  It would be a nonsense to suggest that if a new set of contractual terms was deemed by all concerned in November 2006 to be fair that that was irrelevant to a consideration of whether or not they were fair two months earlier.  Further, the Tribunal had certainly been entitled to conclude that what happened in November was that agreement was reached that was against a background of there already having been substantial agreement with the UCU about a considerable number of matters.  In respect that the claimants sought to stress that these were summary dismissals Mr Gilroy, whilst accepting that if there were dismissals they could be described as summary, said that it did not follow that they were necessarily unfair and it had to be remembered that what occurred was against a background of extensive prior communication and discussion over a period of some two years.   

64.	Regarding the criticism of the articulation of the minority view, Mr Gilroy submitted that it was not justified.  Regarding automatically unfair dismissal, the Tribunal had not erred and if there was a case for any one but not all of the claimants having been dismissed then the question of what description or category they fell into would require to be addressed. 

Discussion 
65.	We are not persuaded that the Tribunal fell into error.

66.	We have already indicated our resolution of the issues of law that arose in the course of the appeal hearing , in our “Relevant Law” section. 

67.	We would add further, firstly, that whilst the claimants’ case on the dismissal point was presented under a heading that the Tribunal had misunderstood or misapplied the law, we were left with the distinct impression that what the claimants sought to do was have the evidence reconsidered and reheard with a view to us reaching a different view on what were, for the most part, wholly undisputed facts.  It also, at times, seemed to amount to a case that the Tribunal’s judgment was not Meek compliant although any such submission is conspicuous by its absence from either the Notice of Appeal or the claimants’ skeleton argument.  Nor was it made orally.  

68.	Secondly, as to the Tribunal’s judgment, as above noted, despite its economy of scale, we are of the view that the Tribunal has adequately set out the facts of each claimant’s case and the relevant law and it is evident that it has applied the latter to the former.  Further, we are able to understand from an ordinary reading of the judgment what its reasons were for reaching its conclusions. 

69.	Thirdly, despite Mr Scott’s best efforts to highlight those areas of changes in terms which had negative aspects to them and those points where the claimants had uncertainty we are not persuaded that it was not open to the Tribunal to conclude that the changes were not such as to amount to a wholesale departure from the claimant’s previous contracts so as to amount to their cancellation or withdrawal.  We agree with the observation in Alcan that judgment of that issue is very much a matter of fact and degree.  Each case will differ according to its own particular facts and circumstances and it is pre-eminently for the Tribunal to judge what they amount to and whether it can be concluded that in reality the employer was bringing the old contracts to an end.  This Tribunal judged that the old contracts were not departed from to that extent and that was a conclusion that was open to them on the facts of the case.

70.	Fourthly , as the background narrative which we relate shows, there are benefits for each claimant in the new system and insofar as there were negative aspects they were not shown to be substantial. We can well understand why the Tribunal concluded that there was no wholesale departure from the previous contractual position.

71.	Turning, fifthly, to the claimants’ case that they had been constructively dismissed we would refer to our discussion in the “Relevant Law” section regarding the apparent illogicality of advancing such a claim in circumstances such as in these cases and we agree with Mr Gilroy that if the claimants were not dismissed then that is an end of matters.  We  would add that, in any event, we are not persuaded that a party who has carried on working under his contract and does nothing more than refer to section 95(1)(c) in a subsequent statement of grievance (presented under a procedure available to employees under subsisting contracts i.e. in the context of an ongoing relationship, not one which the claimant has terminated) which asserts, primarily, that the employer terminated the contract some months prior thereto (as is the position in these cases), thereby demonstrates, without having done or said anything else, that he has terminated his contract of employment. 

72.	Sixthly , moving briefly to the issue of fairness, we do not accept Mr Scott’s criticisms of the approach that the Tribunal took or his submission that was, in effect, that special weight required to be given to the fact these would have been summary dismissals.  The Tribunal took account of a number of factors, which they explain.  They were all, on the face of matters, relevant, including the fact that as at a date some two months later, the changes imposed were, without significant alteration, shown to be acceptable to UCU members including the claimants.  Mr Scott tried to demonstrate that there was much detail added between August and November but we do not see that there is any basis for us to find that the Tribunal were not, on the whole material available (including that put before us by Mr Gilroy to show that much detail had actually been arrived at in the course of discussions that had been ongoing prior to August) entitled to conclude as they did, namely that what was added to the matters agreed prior to August was not substantial.  Nor do we accept that there is any difficulty with the recording of the minority view.  The point was plainly a short one and capable of succinct explanation. 

73.	In the circumstances we do not require to deal with the issue of whether or not there was any automatically unfair dismissal and we propose to say nothing about the application of regulation 4(1) of the 2004 Regulations beyond observing that there was nothing erroneous in the Tribunal determining that it could not determine on its application in the abstract, the abstract in question being that they had not found that any of the claimants were dismissed and did not accordingly require to embark on a consideration of what hypothetically would have been the position if one or more of them had been. 

Disposal 
74.	In these circumstances, we will pronounce an order dismissing the appeal.