Appeal No. UKEAT/0119/11/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 July 2011
	   Judgment handed down on 8 November 2011

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR I EZEKIEL
MR P SMITH

WORKING MEN’S CLUB AND INSTITUTE UNION LTD	APPELLANT

MR THOMAS BALLS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DOMINIC BAYNE
(of counsel)
Instructed by:
Patterson Glenton & Stacey
Law Court Chambers
22 Waterloo Square
South Shields
NE33 1AW	
For the Respondent	MR SAM HEALY
(of counsel)
Instructed by:
Askews 
4-6 West Terrace
Redcar
Cleveland
TS10 3BX	

SUMMARY

UNFAIR DISMISSAL – Constructive Dismissal

Tribunal, despite some inadequacies in its expressed reasoning, entitled to find (a) that the Appellant’s initiation, and subsequent conduct, of disciplinary proceedings against the Claimant was so unreasonable as to constitute a fundamental breach of contract entitling him to resign and claim constructive dismissal; and (b) that the Claimant had resigned in response to that breach

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1.	This is an appeal against the decision of an Employment Tribunal sitting at Newcastle-upon-Tyne, chaired by Employment Judge Pitt, that the Claimant had been (constructively) unfairly dismissed.  The Tribunal sat over three days in November 2010.  Its Judgment and Reasons were sent to the parties on 20 December.  The Tribunal also (a) dismissed a claim that the Claimant’s dismissal was by reason of his having made a protected disclosure and was accordingly automatically unfair pursuant to s. 103A of the Employment Rights Act 1996, and (b) upheld a claim that he had never been provided with a statutory statement of his terms and conditions; but there is no appeal on either of those points.

2.	Both before us and before the Tribunal the Appellant, to which we will refer as “the CIU”, was represented by Mr Dominic Bayne and the Claimant by Mr Sam Healy, both of counsel.  

THE FACTS

3.	The CIU is, as its name suggests, a national organisation of working men’s clubs.  Its Head Office is in London.  It runs a convalescent and holiday home for members (“the Centre”) at Saltburn in Yorkshire.  In May 2006 the Claimant was appointed the manager of the Centre.  He lived in a flat on the premises.  

4.	There were important management changes within the CIU in late 2009.  Mr Mick McGlasham was appointed General Secretary in October, and a month later Mrs Valda Edmunds was appointed Leisure Secretary, in which capacity she became the Claimant’s line manager.  It was the view of the Tribunal that Mr McGlasham and Mrs Edmunds had a “new broom” approach and were keen to tackle perceived problem areas, one of which was the Centre, which was loss-making and was managed, as it found, in a pretty relaxed manner.  Mrs Edmunds paid her first visit to the Centre on 21 January 2010 in order to familiarise herself with it and, more particularly, to initiate discussions about regularising terms and conditions for staff.

5.	The Claimant was on holiday from 26 February to 10 March 2010.  On his first day back, being Thursday 11 March, he was asked to a meeting with Mrs Edmunds at the Centre: also present was a Mr Dane, an employment law consultant.  The Claimant was given no prior indication of the nature of the meeting.  At the meeting he was told that a disciplinary investigation had been initiated and that he was being suspended for a week on full pay.  A letter was handed to him (confusingly, it is dated 10 March though it refers to the meeting of 11 March as if it had already occurred) which reads as follows:

“SUSPENSION FROM DUTY ON FULL PAY
This is to confirm our conversation of 11am on Thursday 11th March 2010 at the Saltburn Holiday & Convalescence Centre, when I informed you that you were suspended from duty on full pay, with effect from today’s date.  For a period of seven days, from the receipt of this letter.  If a longer period of suspension from duty on full pay is required for me to properly carry out the investigation, I will inform you accordingly.
This period of suspension from duty on full pay, is to allow me to facilitate an exhaustive and uninterrupted investigation into allegations of gross misconduct made against you that of; misappropriation of the resources of the Saltburn Holiday & Convalescence Centre.
Namely:-
1.	Circumnavigating [sic] the correct procedure for dealing with Sub-Contractors.
2.	Falsification of records.
3.	Failing to follow clear and reasonable Management instructions.
4.	Exceeding your authority when dealing with NEC members.

This period of suspension from duty on full pay is not a disciplinary sanction.  It merely allows me to undertake an exhaustive and uninterrupted investigation into the aforementioned allegations.  
PLEASE NOTE
During your period of suspension from duty on full pay you must remain in your on-site accommodation, save for leaving the premises to attend to your personal requirements.  You must not attend your place of work, except for attending invitations to investigatory or disciplinary meetings.  You should not discuss these matters with; any members, officials, staff or any person or persons with whom the organisation undertakes business.  This includes; suppliers, contractors, sub-contractors, consultants or brewery personnel etc.
Any infringement of this clear and reasonable management instruction will render you liable to disciplinary action.
If you have any concerns with the content of this letter, then please contact me at once.”

6.	The background to the four numbered “allegations of gross misconduct” set out in the letter is as follows: 

(1)	Circumnavigating [sc. circumventing] the correct procedure for dealing with Sub-Contractors.  This is a reference to an episode in February 2010 when the Claimant had engaged a business called G&A Roofing to carry out minor repairs to the roof of the Centre.  He submitted a petty cash form to Head Office appearing to show that he had paid G&A £180.  Mrs Edmunds regarded this as irregular because she believed that the correct procedure was for an invoice to be obtained from the contractor and submitted by the Claimant to Head Office for payment: G&A should not have been paid out of petty cash, still less without (as was the case) the support of any invoice.  It was the CIU’s case at the Tribunal that they suspected that the matter went beyond a mere procedural irregularity and that no payment had in fact been made to G&A; and indeed in June 2010 a Mr Jones, who had done the actual work, supplied a statement saying that he had taken no payment at the time.  But the Tribunal found as a fact – unchallenged on this appeal – that Mrs Edmunds had not at the time spoken to either Mr Jones or G&A and had no reason to suspect anything more than a procedural irregularity.  

(2)	Falsification of records.  This is on its face a serious allegation of some kind of dishonesty, albeit wholly unspecified.  What however was in fact being referred to was an allegation that the Claimant was not working all the hours for which he was being paid.  The system was that he would draw up in advance a rota of the hours that he would work each week, which would be submitted to Head Office.  It was Mrs Edmunds’ case that on the occasion of her visit to the Centre in January she heard allegations from other staff that the Claimant was never around and that she herself had repeatedly been unable to contact him at the Centre during hours when he was supposed to be working.  If it were the case that the Claimant was not working in hours for which he was being paid that would indeed be a serious matter, but Mr Bayne accepted before us that it was not the same as an allegation of “falsification of records”.

(3)	Failing to follow clear and reasonable Management instructions.  This is a reference to an episode in early February when the Claimant had been asked to obtain quotes for works required at the Centre in respect of which an insurance claim was to be made.  In an exchange of e-mails with Ms Murphy, the Assistant General Secretary, he had protested that he thought that this was quite unnecessary in view of the minor nature of the damage in question.  The final e-mail in the chain suggests that he finally accepted that quotes should be obtained; but, as we understand it, the CIU’s case was that he did not in fact take any steps to do so.  

(4)	Exceeding your authority when dealing with NEC members.  On 24 February Mr McGlasham had written to the Claimant reprimanding him for giving the staff information deriving from figures in the CIU’s Annual Report which had not yet been formally approved, and for discussing with the staff policy questions which were not his responsibility about the sale of part of the garden and how the proceeds might be used to improve the Centre.  He replied protesting that he had done nothing wrong.  Here too the label used in the letter was hardly an apt description of the nature of the allegation.

7.	The letter was thus on any view badly drafted since it not only failed to give any clear idea of the specific allegations but attached labels to them which were positively misleading.  But the bad drafting goes further.  The four numbered points were put forward as instances of “gross misconduct” and “misappropriation of the resources of the … Centre”.  The reference to misappropriation of resources was misleading.  It would appear to suggest some form of theft or other defalcation.  None of the numbered allegations related to any such charge: even if, contrary to the Tribunal’s findings, there was already at that date a suspicion that the Claimant had made some kind of personal gain in relation to the roofing work, that is not what point (1) in the letter says.  Further, as Mr Bayne accepted, only the allegation at (2) was in fact capable of constituting gross misconduct.  

8.	Apart from those deficiencies in relation to the allegations, the letter was poorly worded in at least one other respect.  The words under the heading “Please Note” appear, if read literally, to instruct the Claimant to stay in his flat throughout the period of the suspension except in order “to attend to your personal requirements”, whatever that may mean.  The Claimant said in his witness statement that that was indeed how he interpreted it, describing it as a form of “house arrest”.  Mr Bayne told us (and, no doubt, the Tribunal) that that was not what was intended: all that was meant was that he should not go into any part of the Centre except his own flat.  We have no difficulty in accepting that, and we are bound to say that, despite the clumsiness of the wording, that is what we would have expected the Claimant to understand.  The Tribunal however, seems to have found otherwise: see para. 6.2.2.3 of the Reasons, set out at para. 25 below.  

9.	The Tribunal, unhelpfully, makes no finding as to whether at the meeting Mrs Edmunds attempted to expand on the – as we have shown, uninformative and misleading – descriptions given in the letter of the allegations which she was intending to investigate.  It found only that, whether or not any further explanation was attempted, the Claimant was too shocked by what had occurred to take them in.  We are content for the purpose of this appeal to assume in the CIU’s favour that some attempt was made to explain the allegations in more detail; but it is clear that no attempt was made on that occasion to invite the Claimant’s response.  

10.	A week later, i.e. on 18 March 2010, the Claimant received a further letter (dated 15 March) from Mrs Edmunds notifying him that

“… as a consequence of my initial enquires, the breadth of my investigations has extended beyond the workplace.  Therefore I will require further time to properly carry out further detailed and exhaustive enquiries into the very serious allegations made against you.”

The letter goes on to refer to “the current ACAS Code of Practice” and says that Mrs Edmunds considers the continuation of the suspension to be necessary in the circumstances of the case but she repeats that his suspension does not imply any finding of misconduct.  The letter continues:

“I confirm that this continuation of suspension is with full pay and you remain in employment with the Organisation.  You should, therefore, be available to attend meetings as required within your normal working hours.  I must point out that any failure to attend without good reason, and any other breach of this suspension, will lead to possible further disciplinary action.”

11.	Over the weekend of 21/22 March the Claimant went to a rugby match in Paris: he left on the Friday afternoon and came home on the Sunday evening.  

12.	On the afternoon of the following Monday, 23 March, the Claimant received a telephone call from Mrs Edmunds asking him to attend an immediate meeting with herself and Mr Dane.  The Tribunal found that the meeting had originally been intended by Mrs Edmunds as part of the disciplinary investigation – presumably as the first substantive discussion between her and the Claimant about the allegations.  However, when she got to the Centre, having travelled up from London, she learnt that the Claimant had been in Paris over the weekend, and she apparently regarded that – surprisingly – as a breach of the terms of the suspension.  Accordingly, when the meeting started at shortly before 4 p.m., she began by criticising him for having gone away.  After some short discussion of that issue (in the course of which she apparently conceded that she had never in fact intended to have any meeting with him over the weekend) she turned to the question of the disciplinary investigation.  At that point the Claimant said that he was not prepared to continue with the meeting.  He handed over a letter which he had written earlier and left.  The meeting lasted in all some ten minutes.  

13.	The letter handed in by the Claimant begins:

“I am writing this letter in response to the allegations made against me in your letter dated 10 March.  For reasons which I outline in more detail later on it will, at this juncture, be my only response to those allegations which I would now, like to briefly counter.”

He then addresses in turn each of the four numbered points in the suspension letter.  Taking them in turn:

(1)	Circumventing the correct procedure for dealing with sub-contractors.  He denies that there was any laid-down “procedure for dealing with sub-contractors”.  He infers (correctly) that the episode being referred to concerns the roofing work and he contends that he has acted entirely properly in that regard.

(2)	Falsification of records.  Unsurprisingly, the Claimant evidently did not understand the allegation under this head.  He makes a general denial of having ever falsified any records.  He does, however, go on to recount an episode in December 2009 when he and a colleague had visited London.  He says that he had asked Mrs Edmunds for advice on how to claim expenses for the colleague and had been told that he should claim for the price of a first-class rail ticket and two nights’ accommodation, even though they had not travelled first-class and had incurred no accommodation expenses.  He said that, following that advice, he had made such a claim on behalf of the colleague though not for himself.  He said that he had queried this at the time but had been told that it was normal practice.  

(3)	Failing to follow clear and reasonable management instructions.  Again unsurprisingly, the Claimant did not appear to know to what this allegation related and contents himself with a general denial that he had ever refused to follow management instructions.  

(4)	Exceeding my authority when dealing with NEC members.  Under this heading the Claimant correctly surmises that the allegation is to do with the e-mail exchange to which we have referred above and repeats his denial that he had done anything wrong.

The letter ends:

“In conclusion.
Given that your letter of March 10th makes no mention of who has instigated these allegations I feel that it would not be unreasonable of me to conclude that they do, in fact originate from yourself.
In light of the point which I have made in item two above regarding your own personal compliance with the falsification of expense claims for personal gain I also feel that it is far from unreasonable of me to have serious reservations about your own personal integrity with regards to these matters and have come to the conclusion that it would be entirely unreasonable of my employer to expect me to respond to any form of questioning either from yourself or based on ‘information’ gained by you as part of your investigation.
I will, of course, cooperate fully in any investigation conducted by persons uninvolved in this rather sordid attempt at constructive dismissal.”

14.	In his witness statement the Claimant said that the reason why he refused to participate further in the meeting of 23 March was not only his objection to the investigation being pursued by Mrs Edmunds, as advanced at the end of the letter, but also the fact that he had been told when he was called to the meeting that it was not part of the disciplinary investigation but was to discuss “other matters” (presumably, as it transpired, his trip to Paris).  The Tribunal declined to make any finding about that.  

15.	It was also the Claimant’s evidence before the Tribunal that he had given one copy of his letter to Mrs Edmunds and another copy to Mr Dane with a request that it be forwarded to Mr McGlasham.  There is, however, no finding by the Tribunal about this, nor about when or how Mr McGlasham first saw the letter.  (We were told by Mr Bayne that Mr McGlasham was in fact in Saltburn on 23 March, although taking no part in the investigation; but it is not clear whether that fact was in evidence before the Tribunal.)

16.	Shortly after the meeting Mrs Edmunds wrote to the Claimant as follows:

“Further to our meeting today Tuesday 23rd March 2010 at 15.55.  This is to confirm that you are invited to attend a further interim investigations meeting at 11am, Wednesday 24th March in the Library at the Saltburn Convalescent and Holiday Centre.
We further confirm that you unreasonably refused to discuss the issue pertinent to this investigation and left today’s meeting at 16.04, whilst passing over a letter outlining your version of events.
We must point out that written submissions are not the forum for resolving issues at an interim investigation meeting.  If you feel that you wish to reasonably raise any grievances or issue, this must be carried out at a face to face meeting as described above.
If you unreasonably refuse to attend the meeting at 11 am on Wednesday 24th March 2010, the full pay element of suspension will be withdrawn at that time or until you decide to co-operate with this reasonable management instruction as detailed in paragraph 3 of my letter dated Monday 15th March 2010.”

The letter was hand-delivered to the Claimant’s flat that evening.  There is nothing in it to indicate that Mr McGlasham had any hand in its drafting.  

17.	The next morning, i.e. 24 March, the Claimant handed over two letters.  One was to Mrs Edmunds and reads as follows:

“Please accept this letter as confirmation that for the reasons laid out in the letter which I handed to you yesterday I will not be attending the meeting which you have asked me to attend at 11.00am today.”

The letter is marked “Mr M McGlasham”.  The second is to Mr McGlasham himself and contains his resignation.  It reads as follows:

“Please find attached a copy of a letter which I handed to Valda Edmunds during our meeting in the Centre’s Library yesterday.  I would particularly draw your attention to section two of that letter relating to the charge which has been brought against me of ‘falsifying records’.
Given that Ms Edmunds has, on more than one occasion been personally compliant with the falsification of expense claims and has expressed an opinion to me that the practice is widespread throughout the C.I.U. it is, in my opinion, unreasonable of the C.I.U. to expect me to be the subject of an investigation which includes this charge of falsification of records.
In light of Ms Edmunds letter to me of March 23rd combined with the adverse affect which the current situation is having on both my physical and mental health I believe that I have been left in an untenable position and with no option but to offer you my resignation from my position as Centre Manager.
I firmly believe that over the last four years I have worked conscientiously, diligently and to the very best of my abilities to turn around what was a dire financial situation at the Saltburn Centre and further believe that this is backed up not only by the annual accounts but also the wealth of compliments I have received from both the C.I.U. for me to move out as early as is reasonable and given that a months notice is the usual requirement of any tenancy agreement I would suggest that should be a mutually acceptable timescale.”

The letter is marked cc. Ms V Edmunds.  

18.	Mr McGlasham replied the same day as follows:

“Further to your letter which was addressed to me and delivered by hand.  I felt it necessary to respond to some of the points you made.
I would like to confirm that you have not, and never have been to my knowledge accused of falsifying documentation whilst acting as Manager of the Home.  The investigation we carried out was in order to clarify certain issues regarding the management of the home and should this have resulted in further action being needed we would have taken the disciplinary route as in the ACAS documentation previously provided to you.
I have not attended the meetings held regarding the investigation because Valda is your line manager and it is in her remit to manage staff at the Home.  Your comments regarding Valda and expenses are a separate issue to those we needed to address and are not relevant to the investigation.
In your letter which was delivered to me today, you requested extra time regarding the living accommodation at the Home.  This will not be a problem.
In regard to your request that you be paid a month’s pay in lieu of notice.  I confirm I have agreed this with the Leisure Secretary.  You have been paid been up until the end of March, but your month’s pay in lieu of notice will take you up to end of April.  Please note that the effective date or your termination is from Wednesday 24th March 2010.
Valda has my full support with regard to the investigation, its procedure and in all other aspects of her duty as Leisure Secretary.
I am aware of your commitment to the Home and have never questioned this.”

19.	There was further correspondence, of which we need not go into the details, save to note that the Claimant soon (and in particular in a letter dated 14 April 2010) began to advance more general complaints about his treatment than had appeared in his resignation letter.

THE ISSUES BEFORE THE TRIBUNAL

20.	So far as the claim of “ordinary” unfair dismissal is concerned, the only real question for the Tribunal was whether the Claimant had indeed been constructively dismissed: if he had, the CIU could not, in the circumstances of the case, advance an admissible reason for the conduct which had led him to resign.  The primary issue was accordingly whether the CIU had committed a repudiatory breach of his contract of employment – though there was also, as will appear, an issue as to whether, if they had, he resigned in response to the breach in question.  

21.	In principle, the nature of the breach relied on should appear from the Claim Form.  This was drafted by the Claimant himself.  The section setting out the details of his claim is quite lengthy.  He starts by referring to the suspension meeting and letter and says that the allegations contained in the letter cause him “considerable confusion” for, essentially, the reasons which we have already identified above.  He says that he was:

“… very concerned about the lack of any specific details of these allegations, their source, the fact that there had been no discussion of them with me prior the suspension and … the need to make use of the services of an external employment law specialist.”

He refers to the advice which he says he was given by Mrs Edmunds to put in false travel expenses.  He mentions the extension of the period of suspension and how he came to draft the letter which he eventually handed over at the meeting of 23 March.  He gives his account of what happened at that meeting and of the handing over of the letter.  He refers to Mrs Edmunds’ letter requiring him to attend a meeting on the following day, referring in particular to the warning that if he did not do so he would loss his entitlement to be paid.  He continues:

“It was clear that Mr McGlasham was aware of this letter and its contents and that he clearly intended to take no action with regards my allegations against Ms Edmunds despite the previously stated “policy” of the CIU requiring a full and comprehensive investigation of all such complaints and ACAS in their guidelines recommending that in cases of “overlapping grievance and disciplinary cases” the appropriate course of action would be to suspend the initial process in order to deal with the grievance.  Subsequent correspondence which I have received from Mr McGlasham has confirmed the fact that neither he nor any other individual has carried out any form of investigation into my counter allegations against Ms Edmunds.”

He goes on to develop his criticism of Mr McGlasham for failing to take prompt action about the allegations against Mrs Edmunds.  He then continues:

“At this stage in the proceedings I had (I believe not unreasonably) some quite serious reservations about the manner of the action being taken against me and the integrity of the individuals concerned, particularly the fact that I was being expected by them to partake in an enquiry conducted by a person who I had just accused of a criminal offence who would in turn be reporting to a person who had made no attempt to make any form of enquiry about that accusation.
I therefore came to the conclusion that the only course of action open to me was to again inform Mr McGlasham (and again in writing) that I believed that my employers were placing me in an unreasonable and untenable position and that whilst I was fully prepared to comply with any enquiry conducted by a person or persons other than Ms Edmunds, in light of my allegations against her being unresolved that I was not prepared to take part in an enquiry run by her.
I also came to the conclusion that in order to protect my good name and to emphasise my strength of feeling regarding the issue that I would offer Mr McGlasham my resignation and should he accept it pursue a case of constructive dismissal against the C.I.U. in order to ensure that the material issues of the case were heard by an independent and impartial body.  This I duly did on the morning of March 24th.”

There then follows a passage dealing with matters following his resignation.  The Claimant says:

“Having therefore exhausted all options available to me to resolve the matter from within the C.I.U. I am putting forward this claim for Constructive Dismissal on the following grounds:-
1) That I was accused by my employers of breaching a laid down procedure which did not and does not exist (the issue of dealing with ‘sub contractors’).
2) That my employers have in fact received no allegations of Gross Professional Misconduct against me and that the charges which they had brought were designed solely to justify their suspending me from work in order to carry out a ‘fishing’ exercise in an attempt to find some form of incriminating evidence against me.
3) That I was treated in an unfair and discriminatory manner by the C.I.U. General Secretary Mr McGlasham in the manner in which he failed to address counter allegations brought by myself against my line manager Ms Valda Edmunds.”

22.	Mr Bayne submitted to us that it appeared from that pleading that the Claimant’s case as to breach was essentially twofold: 

(a)	there were no, or no sufficient grounds for initiating a formal investigatory process, and thus for suspending him – that being the gist of the pleaded points (1) and (2); and

(b)	Mr McGlasham’s failure to address his allegations against Mrs Edmunds.  

He said that that was the case which at the Tribunal he understood that the CIU had to meet.  Mr Healy submitted that that was an unduly restrictive view of the pleading.  

23.	As we have said, even if the Claimant established a repudiatory breach there remained, at least potentially, an issue as to whether he resigned in response to the breach in question.  It was the CIU’s case before the Tribunal that the sole cause of the Claimant’s resignation was, as he said in the resignation letter itself, the inappropriateness of Mrs Edmunds pursuing an investigation into “falsification of records” when she had herself, so he claimed, encouraged false expenses claims.  If that were established, the question of whether the initiation of the investigation constituted a breach would be immaterial, because the Claimant would not have resigned in response to it.  That was an important point because it is at least debatable whether Mrs Edmunds’ failure to step down was by itself a repudiatory breach, or at least had matured into one at the time that the Claimant resigned: even if she should have recused herself, which is not self-evident, she had not said definitively that she would not do so (cf. para. 39 below); nor was her stance explicitly endorsed by Mr McGlasham prior to the resignation (it is not indeed clear whether he even knew of it).  If this were the only breach that could be relied on, the Claimant might be thought to have jumped the gun in resigning when he did.  

24.	Mr Bayne explored with the Claimant in cross-examination what exactly led him to resign.  The following note was agreed by counsel:

“At start of cross-examination by Mr Bayne:-
“”Q: I want to understand your case.  You made a disclosure in writing to Steve Cannell in December 2009 and you think because of that you were suspended.
A: I believe so.
Q: And it was that which caused you to resign?
A: No, the cause was that Valda Edmunds was conducting the inquiry and my employer failed to take any action in relation to my allegations against her.  I felt I was being put in an untenable position.
Q: Not the fact of your suspensions?
A: It was not the suspensions (per se), I was quite prepared to answer any questions put to me.”
“Q: The employer can suspend you  In ordinary course of events, employer is permitted to suspend you.  If not good reason, then shouldn’t suspend?
A: If the allegations were made, it was appropriate to suspend me.”
…
Q: In the Particulars of Claim at the bottom of page 11, you identify 3 grounds for resigning.  The first 2 are being accused of breaking policies that don’t exist, and being suspended for gross misconduct without a good reason.  Are you no longer pursuing these claims?
“A: I believe that the allegations were made up to justify suspension”. 
Q: The third ground is that you were treated in an unfair and discriminatory manner by the CIU General Secretary Mr McGlasham in the manner in which he failed to address counter allegations brought by you against your line manager Ms Edmunds.  Are those counterallegations the ones raised by you in your letter of 23rd March?
A: Yes
Just before lunch on 17/11/10 -
Q: Your resignation letter is on p104A.  At paragraph 2 of that letter, you say that because Valda Edmunds was accused by you it was inappropriate for her to investigate you?
A: Yes in effect yes
Q: You felt that put you in an untenable position, right?
A: Yes.  There was no form of investigation into the allegations about Valda Edmunds.
Q: You expected Mr McGlasham to investigate the allegations?
A: Yes
“Q: So is your problem that investigation wasn’t paused?
A: Yes. One of them.
Q: What were the other reasons?
A: There were no other reasons in this particular letter; but it attached the letter on pages 99-100 [Claimant’s letter of 23 March 2010 to Mrs Edmunds].  It was unfair for Valda Edmunds to investigate, but I would co-operate with another uninvolved person … investigation into me not suspended. . .I had nothing to hide.  I never said I did not want name to be tarnished with an investigation”
Q. On page 166 [Claimant’s letter of 5th April 2010].  You say you were in an untenable position for 2 reasons.  The first was that there were allegations of a breach of a policy that never existed.  On page 99 you say you ‘weren’t aware of a defined procedure’.  That was your defence to the allegation:
A: Yes
Q: There is a difference between that and a suggestion that the allegation was motivated by malice.  You don’t allege that in this letter?
A: No
Q: Its not in the resignation letter?
A: I stated that it was a sordid attempt at constructive dismissal
Q: But your complaint is all about the investigation not the suspension?
A: Yes
…
Q: What happened between your resignation on 23rd March and the letter of 14th April that made you think the allegation had been cooked up?
A: I had had time to reflect upon why they had been brought.”

THE TRIBUNAL’S REASONS

25.	Paras. 1-5 of the Reasons set out the facts and the issues and briefly refer to the relevant law.  We are bound to say that the account of the facts is not very easy to follow, not least (though not only) because the Tribunal deals separately with those facts which were agreed before it and those which were disputed: there is no substitute for a single coherent chronological narrative of the material facts.  (We should also say, though this by itself is not of great importance, that the paragraphing system adopted is somewhat eccentric and hard to understand.)

26.	The Tribunal gives its conclusions in section 6 of the Reasons.  It starts at para. 6.1 with some “general observations”.  The gist of these is that while Mr McGlasham and Mrs Edmunds were perfectly entitled to regard the way things had been done previously at the Centre as unsatisfactory, they unfairly perceived them as grounds for suspecting misconduct on the part of the Claimant when in truth they were no more than examples of poor management practice for which their predecessors were more to blame than the Claimant himself.  As the Tribunal put it at para. 6.1.3:

“… the matters raised with him were clearly how the claimant had always done things.  It seems to this Tribunal unfair to criticise somebody for not following procedures of which he had not been told and to bring disciplinary proceedings for the same reason.  It seems to the Tribunal that the correct approach would have been to consider informal meetings to look at the areas where the respondents considered the claimant to be at fault … .”

It then, at para. 6.2, addressed the issue of whether the CIU had committed a repudiatory breach.  It said:

“Breach of Contract
The term of the contract which the Claimant alleges was breached was the implied term of mutual trust and confidence. Clearly any breach of this term would entitle an employee to resign. The Tribunal in deciding this issue has had regard not only to the Claimant's account but also the reasons given by the Respondents for its actions.
6.2.1 As noted above the new management team wished to make changes and for this there is no criticism; the criticism is in not informing the Claimant. 
6.2.2 The Tribunal conclude having considered the issues in particular those facts as found by the Tribunal which are in dispute between the parties that the there was a breach of the implied term of mutual trust and confidence in the following ways:
6.2.2.1 There was a clear change of management style after the appointment of Mr McGlasham and Ms Edmunds. Not only did they want to formalise the contractual positions of staff at the Centre; the impression the Tribunal gained is that they wanted to run a 'tight ship'. The problem here is the lack of communication with the Claimant before the implementation. It is unfair to discipline an employee for carrying out his duties as he always has. In particular with reference to keeping costs low.
6.2.2.2 The manner in which the suspension was carried out whilst the Respondents cannot be criticised for not warning the Claimant of it; it is clear it came as a blow to him; the Respondents maintain that he was told the exact nature of the allegations however clearly in his distressed state the Claimant did not take it in.
6.2.2.3 The suspension letter in the opinion of the Tribunal is badly drafted; in particular the suggestion that the Claimant was to remain indoors. The Respondents cannot now explain that away it is how it would be perceived by an employee.  Nor does it make reference to whether the allegations amount to misconduct which would warrant dismissal or whether they are considered to be capability issues. 
6.2.2.4 The Tribunal is satisfied as noted above that no investigation had been commenced into any of the allegations; whilst the claimant would be unaware of this at this time the fact that no evidence was produced for him to consider prior to 23rd March would make this apparent.
6.2.2.5 The allegations themselves, as were apparent at the date of suspension appear petty.  The Tribunal accept that the issue surrounding the payment to the roofing contractor as it is now put to us; that the money was never paid; is a serious allegation; however at the time of the suspension the Respondents did not know there was such a suggestion indeed this was a possible allegation until the letter from G&A of 30th April 2010.
6.2.2.6 The suggestion of fabrication of a rota may again be a serious allegation that the Claimant was not working.  However the Respondents have failed to establish even on the balance of probabilities this is the case; the allegation amounts to a vague assertion by Ms Edmunds unsupported by any evidence.
6.2.2.7 The failure to follow lawful orders appears to have been dealt with to the satisfaction of Ms Murphy by 24th February. No action was taken about this prior to the suspension when it seems to the Tribunal that an informal approach to the Claimant would have resolved any conflicts as to how he dealt with matters.
6.2.2.8 Inappropriate contact with NEC members. Again the Claimant was never previously told not to do this and this again appears to be a matter which could have been resolved informally. 
6.2.2.9 The letter extending the suspension dated 18th March is also badly drafted. Taking account of the Claimants flexible working system to suggest he should always be available for a meeting is ridiculous.  The better way may have been to inform the Claimant that he should be available during normal office hours, although not at a moment's notice. 
6.2.2.10 The calling of the meeting on 23rd March via a telephone is totally inappropriate. The Respondents obviously knew at least the preceding day if not before that that it was intended that such a meeting be held in Saltburn. Not to give the Claimant some prior warning is very poor management. 
6.2.2.11 To criticise the Claimant for travelling to Paris is outside the remit of the employer employee relationship. To suggest that the Claimant was in breach of the terms of his suspension is ludicrous. It is clear to the Tribunal that there was some emphasis placed upon this at the meeting. 
6.2.2.12 The letter to the Claimant informing him that his failure to unreasonably cooperate with the process would result in a loss of pay is punitive, to also suggest that such allegations as he makes against the investigating officer should be dealt with during his investigatory meeting is inappropriate. 
6.2.2.13 To fail to take notice of serious allegations against an investigating officer is poor management and to suggest that such a person retains their position as investigating officer is inappropriate and gives the impression to an employee not only that the employer is biased but that the employee will not be listened to.” 

At para. 6.3 the Tribunal says:

“6.3 The Tribunal looked at the reasons advanced by the Respondents for the treatment, namely that it was conducting a legitimate investigation is not sustainable. It is clear that Ms Edmunds was acting independently from her superiors as shown by the letter of 24th March from Mr McGlasham. His view of the matter was that the Respondents were simply to clarify certain issues regarding management of the centre. If that were the case, and Mr McGlasham had been more fully informed it appears to this Tribunal that the issues could have be dealt with speedily and informally. 
6.3.1 Taking an objective view the Tribunal consider that the Claimant was entitled to resign. The manner in which the Respondents behaved towards the Claimant in conducting its investigation was inexcusable and the Claimant was entitled to resign. 
6.3.2 The Tribunal is satisfied that the claimant resigned in response to this breach and for no other reason. 
6.3.3 The Tribunal is of the unanimous view that the Claimant was constructively dismissed. No alternative reason was advanced on behalf of the Respondents therefore the dismissal was unfair. ”

(Those paragraphs contain some oddities of punctuation and detailed wording, but we have not sought to tidy them up: the meaning is never seriously in doubt.)  

THE APPEAL

27.	The CIU’s grounds of appeal are pleaded as follows:

“The employment tribunal erred in law in finding that:
a.	the CIU was in breach of the mutual terms of trust and confidence implied into the Claimant’s contract of employment in ways that:
i.	were not alleged by the Claimant within his ET1;
ii.	were not relied upon by the Claimant in evidence or argument; and
iii.	could not properly be said to have been ‘without reasonable and proper cause’ and ‘calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’
b.	the Claimant had resigned as a consequence of those breaches of contract contrary to his direct evidence as to the cause of his resignation; or alternatively failed consider whether those breaches of contract had caused or contributed to the Claimant’s decision to resign.”

We take the two heads in turn.

(a)	BREACH OF THE DUTY OF TRUST AND CONFIDENCE

28.	It is clear from para. 6.3.1 of the Reasons that the breach which the Tribunal found was the “inexcusable” behaviour of the CIU – and specifically Mrs Edmunds – in relation to the investigation.  Its particular criticisms in this regard are set out at paras. 6.2.2.1-13.  Mr Bayne, in his thorough and well-presented written and oral submissions, took us through these one-by-one.  We must take the same course.  

29.	Para. 6.2.2.1.  Mr Bayne submitted that the Tribunal’s observation that “it is unfair to discipline an employee for carrying out his duties as he always has” was:

“… an error of law and/or a perverse finding of fact, in that:
(i)	There was no evidence of any disciplinary action being taken against the Claimant.
(ii)	Suspension on full pay does not amount to disciplinary action.
(iii)	It was no part of the Claimant’s case that he had been unfairly disciplined.”

We do not accept that submission.  The Tribunal was evidently referring not to the imposition of any disciplinary sanction but to the initiation of disciplinary proceedings.  It is well-established that the unreasonable bringing of disciplinary proceedings, irrespective of any eventual findings, is capable of constituting a breach of the (to use the accepted shorthand) “duty of trust and confidence”: see, e.g., Gogay v Hertfordshire County Council [2000] IRLR 703.  Of course tribunals should be slow to treat the initiation of an investigation as itself a repudiatory breach: very often an employer may act reasonably in investigating allegations of misconduct which turn out in the end to be groundless.  But the question of reasonableness is one of fact, and the Tribunal’s view on this issue must be read in the context of its findings about the approach of Mr McGlasham and Mrs Edmunds at para. 6.1 of the Reasons (see para. 26 above).

30.	Para. 6.2.2.2.  Mr Bayne submitted that if this paragraph was intended as a criticism of the manner of the Claimant’s suspension the specific nature of the criticism is wholly unclear.  We agree.  There is plenty of room for criticism of the letter setting out the terms of the suspension (see para. 7 above), but the Tribunal plainly regarded that as a separate point.  If there were to be a criticism of the conduct of the meeting itself, it would have to be along the lines that Mrs Edmunds did not seek to amplify or clarify the terms of the letter; but, as noted above (see para. 9), the Tribunal made no finding on that point.  

31.	Para. 6.2.2.3.  Mr Bayne submitted that the finding that the letter of suspension was badly drafted, especially as regards the requirement that the Claimant remain in his flat, constituted an error of law in that:

“(i)	The Tribunal considered only the Claimant’s subjective interpretation of the letter; when it should have considered the conduct of the CIU from an objective perspective (see e.g. Buckland v Bournemouth University [2010] IRLR 445).
(ii)	Although, at paragraph 16 of his statement, the Claimant did complain that his letter of suspension ‘put me under a “house arrest” of sorts’, it was no part of his case that the drafting of the letter of suspension constituted or contributed to a breach of contract.”

There is force in point (i).  But the fact remains that the letter was badly drafted in respects which had nothing to do with the requirement that the Claimant stay in his flat and which were indeed more serious, in that they went to the substance of the allegations which the CIU proposed to investigate: see para. 7 above.  As to point (ii), we consider this at para. 41 below.  

32.	Para. 6.2.2.4.  Mr Bayne submitted that the finding that the CIU was in breach of contract in failing to conduct any investigation into the allegations prior to the meeting of 24 March 2010:

“… was an error of law and/or perverse in that: 
(i)	An employer is not normally required to commence an investigation into allegations of misconduct before its first investigatory meeting with the person who is the subject of the complaint;
(ii)	The ET failed to set out any reasons why the Respondent should have carried out its investigations prior to its first investigatory meeting with the Claimant.  
(iii)	It was no part of the Claimant’s case that the failure to investigate the allegations prior to the investigatory meeting constituted or contributed to a breach of contract.”

We do not accept those submissions.  An employer should not initiate disciplinary proceedings involving what are presented as allegations of “gross misconduct” without some basis for believing that the allegations are well-founded and that they might constitute gross misconduct; and that may, depending on the circumstances, require some degree of prior “investigation”.  In the present case the Tribunal plainly believed that the CIU had rushed into a formal investigation, making serious allegations of dishonesty, without any sufficient basis and that it should have taken an informal approach: see para. 6.1.3 of the Reasons.  That was a factual judgment which it was entitled to make.  As to point (iii), see, again, para. 41 below.  

33.	Paras. 6.2.2.5-6.  Mr Bayne’s skeleton argument on this point reads as follows:

“At paragraph 6.2.2.5 the ET concluded that ‘the allegations themselves, as were apparent at the date of suspension appear petty’ but at paragraph 6.2.2.6 it concluded that ‘the suggestion of fabrication of a rota may again be a serious allegation that the Claimant was not working.  However the Respondents have failed to establish even on the balance of probabilities this is the case…’.  Those findings were an error of law and/or perverse, in that:
i.	The tribunal made 2 inconsistent findings: the allegations cannot at the same time be ‘petty’ and ‘serious’.
ii.	There was no burden upon the Respondent to establish that its allegation was made out on the balance of probabilities.  The ET appears at paragraph 3.5.3 to have had accepted Ms Edmund’s evidence that they ‘quite properly’ contributed to reason for suspension.”

These are fair points if the Tribunal’s wording is taken literally.  But in our view the Tribunal was expressing itself badly.  What we believe that it meant was that Mrs Edmunds did not, at the time that she raised the (misleadingly labelled) allegation of “falsification of records”, have any sufficient basis for alleging that the Claimant had not been working in periods for which he was on the rota: this very criticism is clearly made by the Tribunal in the course of its findings of fact at paras. 3.5.2-4. 

34.	Paras. 6.2.2.7-8.  Mr Bayne submitted that to say, as the Tribunal does, that two of the matters being investigated “could have been resolved informally” does not amount to a criticism of the CIU.  We do not agree.  It is clear that what the Tribunal was saying was that the problems in question were not of a character that was capable of justifying a disciplinary investigation.  That was a judgment which it was entitled to make.  It is adequately clear that the Tribunal believed that the CIU were, wholly inappropriately, raising by way of allegations of “gross misconduct” matters simply of poor management practice (in which Mr McGlasham’s  and Mrs Edmunds’ predecessors were complicit).  That was a view which it was entitled to form. 

35.	Para. 6.2.2.9.  Mr Bayne challenged the Tribunal’s finding that the requirement in the letter extending the suspension that the Claimant “be available to attend meetings as required within your normal working hours” was “ridiculous”.  He submitted that such a statement could not possibly constitute a breach of the duty of trust and confidence.  We agree.  We frankly do not understand what it was that the Tribunal found so objectionable about this requirement.  We can see that Claimant’s flexible working hours might, in theory, lead to some ambiguity about what was meant by the standard phrase “your normal working hours”; but this was very unlikely to give rise to any difficulty in practice.  

36.	Para. 6.2.2.10.  Mr Bayne submitted (i) that “the use of the telephone to organise the meeting [of 23 March]”, while not best practice, could not possibly be a breach of the duty of trust and confidence; and (ii) that in any event it was no part of the Claimant’s case that the way in which he was called to the meeting constituted or contributed to such a breach.  As to (i), this misrepresents the nature of the Tribunal’s criticism.  Its objection was not to the use of the telephone as such but to the shortness of the notice.  That too was a criticism which the Tribunal was entitled to make.  Indeed, it seems to us plainly correct: it seems extraordinary that Mrs Edmunds, who had made a special journey to Saltburn with a view to having a meeting with the Claimant on the Monday, should give him no prior notice whatever.  As to point (ii), see para. 41 below.  

37.	Para. 6.2.2.11.  Mr Bayne – sensibly – did not challenge the Tribunal’s criticism of Mrs Edmunds for treating the Claimant’s trip to Paris as a breach of the terms of the suspension.  His only point is that this was not advanced by the Claimant himself as a criticism of the CIU.  We deal with this point, together with other points to the same effect, at para. 41 below.  

38.	Para. 6.2.2.12.  Mr Bayne submitted that the Tribunal’s criticism of Mrs Edmunds for telling the Claimant that non-co-operation with the investigation would involve his pay being withheld involved a misunderstanding of the legal position.  The CIU would unquestionably as a matter of law have been entitled to withhold pay in such circumstances.  In our view Mr Bayne is right about that.  However, as we read it, the Tribunal’s point, in using the word “punitive”, was that it was unnecessary and unduly heavy-handed to include this point in the letter.  We are bound to say that we think that the Tribunal’s point is rather over-critical: the passage in question reads to us like a standard form, though we agree that it might have been more sensitive to leave it out.  But, whatever view is taken about that, the wording of the letter in this respect is no more than a (small) part of the overall picture.  

39.	Para. 6.2.2.13.  Mr Bayne’s submission in relation to this paragraph appears at para. 24 of his skeleton argument as follows:

“[This] paragraph does not make it clear whether the ET was critical of Ms Edmunds for failing to recuse herself, or of Mr McGlasham for failing to pause the investigation; nor whether that criticism, on its own, was capable of amounting to a breach of contract.  Had the ET properly considered the issues, it would have recognised that:
a.	Mr McGlasham could not be criticised, because there was no evidence that the letter which the Claimant had handed to Ms Edmunds at 4pm on 23rd March had come to the attention of Mr McGlasham by the time of his resignation at 11am on 24rd March.
b.	Ms Edmunds had reasonable and proper cause for requiring the Claimant to attend a meeting on 24th March:
i.	She was already in Saltburn, on a visit from her office in London;
ii.	She was the Claimant’s line manager;
iii.	She considered the Claimant’s grievance should be aired at a meeting rather than in writing.
c.	In any event, Ms Edmund’s decision to continue with the hearing on 24th March 2010 could not objectively have be characterised as one which was intended to, or was likely to, destroy or seriously damage the employment relationship.”

We agree that this paragraph is inadequately reasoned.  We see real force in Mr Bayne’s point that, whether in the end it might have been necessary for Mrs Edmunds to recuse herself, there was nothing unreasonable in her taking the initial position that the criticisms which he had raised about her in her letter of 23 March should be raised at a face-to-face meeting before any final decision was taken.  

40.	The upshot of that, we fear, over-lengthy discussion is this.  Some of the particular points advanced by the Tribunal in support of its conclusion that the CIU’s behaviour constituted a breach of the duty of trust and confidence are ill-founded or, at least, inadequately reasoned.  However, other aspects of its reasoning survive.  Specifically, in our view the Tribunal was entitled to conclude: 

(a)	that the CIU had initiated disciplinary proceedings against the Claimant, making allegations of gross misconduct and dishonesty, without an adequate basis for doing so;

(b)	that the letter setting out the allegations to be investigated was so poorly expressed that it gave the Claimant no real idea of the nature of most of the charges against him and gave a misleading impression of their gravity; and 

(c)	that the conduct of the investigation thereafter was unreasonable in at least two specific respects, namely (i) calling the Claimant to the investigatory meeting on 23 March without any prior notice; and (ii) at that meeting unreasonably criticising him for visiting Paris over the weekend.

Those are in our view findings which would by themselves justify the Tribunal’s decision that the CIU had acted in breach of the duty of trust and confidence.  The various specific criticisms made good by Mr Bayne are not fatal to its overall reasoning.  

41.	We return to a point which was parked in the course of the previous discussion.  As noted above, Mr Bayne at several points noted that a criticism advanced by the Tribunal did not form part of the Claimant’s pleaded case.  That appears to be factually correct; further, the criticisms in question do not appear to feature in the Claimant’s witness statement either.  This is not, however, necessarily fatal.  It is not uncommon in an unfair dismissal case for particular criticisms of an employer’s course of conduct to emerge only in the course of the hearing – typically in cross-examination or in questioning from the Tribunal.  If such criticisms raise a whole new case they may indeed be inadmissible: certainly they should not be admitted, at least if objected to, without formal amendment and only if the Tribunal is satisfied that the employer is not prejudiced by their last-minute introduction.  But the situation is often not nearly so stark.  If the criticisms in question are no more than the amplification or particularisation of more general criticisms which the employer was, or should have been, already expecting to meet, a more relaxed approach is appropriate.  It will not normally be difficult for witnesses or advocates to deal with “new points” of this kind which arise against the background of primary facts which will already be before the tribunal.  In our view that is the case here – at least as regards the central points which we have identified at para. 40 above.  Although the Claim Form, as summarised at para. 20, was diffuse, it could and should have been read as putting in issue the reasonableness of the entire process between the start of the disciplinary proceedings and the events of March 23 and 24, and it is not unreasonable to expect the CIU and its witnesses to have been in a position to deal with any criticisms of that process.  It was not part of Mr Bayne’s argument that any specific prejudice was caused by points being raised unexpectedly, still less that the points made by the Tribunal had emerged only for the first time in its Reasons. 

42.	We have not so far said anything about para. 6.3 (i.e. para. 6.3 itself rather than paras. 6.3.1-3).  Mr Bayne submitted that:

“At paragraph 6.3 the ET appears to have concluded that the Respondent was not conducting a legitimate investigation, citing only that ‘It is clear that Ms Edmunds was acting independently form [sic] her superiors’.  That is a difficult conclusion to understand, given that:
a.	The ET had previously concluded that Ms Edmunds was a truthful witness [3.4.4] who properly wished to carry out an investigation into at least one of the allegations, and one of the reasons for the suspension was to enable her to do so [3.5.3].
b.	The ET failed to explain why Ms Edmunds should not have been acting independently from her superiors.”

As to (a), this is a fair point if the Tribunal’s (apparent) finding that the investigation was not “legitimate” is read as meaning that Mrs Edmunds had no genuine belief that there was a case requiring investigation.  But we do not think that that is what the Tribunal meant.  The question is not one of good faith but one of reasonableness: the Tribunal concluded that Mrs Edmunds had no reasonable basis for initiating a formal disciplinary investigation.  That is a factual conclusion to which it was entitled to come.  As to (b), we agree that the Tribunal’s thinking on this point is unclear: there is indeed no apparent reason why Mrs Edmunds needed to liaise with Mr McGlasham (nor is it clear to us from his letter of 24 March that his attitude was radically different from hers).  But this point does not go to the heart of the Tribunal’s reasoning, which stands or falls by the findings of breach made in para. 6.2.2.  

(b)	“CAUSATION”

43.	As noted at para. 23 above, it was a central part of the CIU’s case before the Tribunal, based on the terms both of his resignation letter and of the answers that he gave in cross-examination, that the Claimant had resigned only in response to Mrs Edmunds’ refusal to recuse herself – which was not, for the reasons noted above, by itself a repudiatory breach.  That being so, it was in our view quite insufficient for the Tribunal to deal with that case in a single sentence, as it did at para. 6.3.2 of the Reasons.  It was incumbent on it to explain, however succinctly, why it rejected the specific submissions made to it.  It does not, however, follow that we are obliged to allow the appeal and remit the issue.  It is in our view possible, on the basis of the material before us, to supply the deficiency in the Tribunal’s reasoning.

44.	We start by observing that, as a matter of common sense, it is highly improbable that the Claimant would have resigned only because of the fact that Mrs Edmunds had refused immediately to recuse herself.  He was certainly well aware of the prior unreasonable conduct found by the Tribunal and, on the Tribunal’s findings, very upset by the CIU’s behaviour in those respects.  Most fundamentally, he did not believe that he had done anything to justify suspension; but on top of that was the uncertainty about the nature of the allegations and the unreasonable way in which the investigation was handled.  It is very unlikely that those did not form at least a substantial part of his eventual decision to resign.  We note that in his letter of 23 March he described the CIU’s conduct as “a rather sordid attempt at constructive dismissal”: whatever exactly he meant by that phrase, it is clear that he did not see what had happened up to that point as a legitimate investigation of bona fide (even if wrong) allegations against him.

45.	It is true that it seems from the sequence of events, and indeed the terms of his resignation letter, that the immediate trigger for the Claimant’s resignation was the fact that Mrs Edmunds did not at once step down when he made his cross-allegations against her.  But that does not mean that that has to be viewed in isolation.  On the contrary, the overwhelming probability is that it was viewed by him as simply the last element in a cumulative history of unreasonable conduct towards him.  That was the way that Mr Healy had expressly put the case in his written submissions to the Tribunal, which we have seen.  (Even if Mrs Edmund’s failure immediately to step down was not in itself unreasonable this would not be a problem, as it might arguably be if this were a “last straw” case in the strict sense.  The other breaches were so recent, or indeed current, that no sensible argument of waiver could have been run.) 

46.	Thus far, therefore, the inherent probabilities are clearly that the Claimant resigned in response to the CIU’s conduct in relation to the investigation as a whole.  What, then, of his oral evidence set out at para. 24 above ?  Mr Bayne’s cross-examination was evidently astute and effective; but the Tribunal was not in our view obliged to regard the answers which he obtained as determinative.  A tribunal always, of course, has to be careful that the literal answers given by a witness, not always aware of the implications of the questions put, do indeed represent his real evidence – and that is particularly so where the questions do not relate to concrete issues of primary fact but involve considerations of cause or motivation which are of their nature far from straightforward.  That does not mean that the clearly damaging answers obtained by Mr Bayne as the start of the cross-examination could be ignored; but they needed to be assessed in the context both of the overall probabilities and of his evidence as a whole.  In that regard it is important to note that when asked whether his apparent concession meant that he was no longer pursuing a case based on the unreasonableness of his original suspension the Claimant answered “I believe that the allegations were made up to justify suspension”.  That is equivocal in as much as it need not mean that that was what he thought at the time, and indeed Mr Bayne arguably later elicited an answer that this was a belief that he had only formed subsequently.  But it nevertheless suggests that he had not fully grasped the point being put to him.  Further, and perhaps more significantly, it is necessary to note the evidence given “just before lunch”, where the Claimant, while acknowledging that “one of” the problems leading to his resignation was the absence of any response to his allegations against Mrs Edwards, others were to be found in his letter of 23 March giving his outline response to the allegations.  

47.	In our view it is adequately clear – although, as we say, the Reasons should have addressed the point expressly – that the Tribunal regarded the Claimant’s answers in cross-examination as insufficient to displace the common sense conclusion that he resigned in response to the cumulative conduct of the CIU which it had found to constitute a fundamental breach of contract.

CONCLUSION

48.	We have not found this appeal straightforward because of the deficiencies in some aspects of the Tribunal’s expressed reasoning.  But in the end we can see no error of law in its core conclusions, namely that the CIU initiated disciplinary proceedings against the Claimant, alleging dishonest behaviour, without any adequate basis for doing so; that the way in which it conducted those proceedings was unreasonable; that it thereby committed a fundamental breach of contract in response to which the Claimant was entitled to resign; and that his resignation was indeed in response to that breach.  The appeal must accordingly be dismissed. 

49.	We regret the delay in promulgating this judgment, which reflects the pressure of other work in this Tribunal.