Appeal No. UKEAT/0332/16/DM

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

	At the Tribunal
	On 15 May 2017

Before
HER HONOUR JUDGE EADY QC
(SITTING ALONE)

ASGHAR & CO SOLICITORS	APPELLANT

MR Z HABIB	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MS NABILLA MALLICK
(of Counsel)
Instructed by:
Messrs Asghar & Co Solicitors
112-114 The Broadway
Southall
Middlesex
UB1 1QF

For the Respondent	MR BEN AMUNWA
(of Counsel)
Instructed by:
Landmark Legal LLP
284 Harrow Road
London
W2 5ES

SUMMARY
UNFAIR DISMISSAL - Constructive dismissal

Constructive dismissal - breach of contract - affirmation
The ET had made findings as to repudiatory breach of contract that went beyond the case pursued by the Claimant, specifically finding that the last straw was an act that had taken place on 14 August 2014, some weeks after the last matter on which the Claimant had relied.  That said, the Respondent’s appeal on this basis would not be allowed as the ET had permissibly concluded, in the alternative, that the matters relied on by the Claimant would themselves amount to a cumulative breach of the implied obligation to maintain trust and confidence.
The ET had then, however, also proceeded to determine the question of affirmation on the basis that the last straw had taken place on 14 August 2014 and had considered the question of the Claimant’s delay in resigning and the parties’ interactions only from that time.  Although the ET had gone on to assert that it would have reached the same conclusion on affirmation whether the last straw had been 14 August 2014 or some weeks earlier, its reasoning failed to disclose any active consideration of the Claimant’s conduct and the parties’ communications and interactions in the weeks prior to 14 August and it was not possible to understand its explanation for its conclusion with any confidence that it had taken that relevant earlier period into account.  
In the circumstances, the Respondent’s appeal would be allowed on the affirmation point and remitted - to the extent that it was still possible - to the same ET for reconsideration.

HER HONOUR JUDGE EADY QC

Introduction
1.	In this Judgment I refer to the parties as the Claimant and Respondent as below.  This is the Full Hearing of the Respondent’s appeal from a Judgment of the Watford Employment Tribunal (Employment Judge Mahoney sitting alone on 22 to 24 March 2016; “the ET”), sent to the parties on 25 April 2016.  Representation before ET was as it has been on this appeal. 

2.	By its Judgment the ET upheld the Claimant’s complaint of constructive unfair dismissal.  The Respondent’s appeal was initially considered on the papers by the Honourable Mrs Justice Simler DBE (President) to disclose no reasonable basis to proceed.  After a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 before the Honourable Mrs Justice Slade DBE, the appeal was permitted to proceed on the following grounds:
(1)	Whether the ET erred in concluding that the matters identified at paragraph 11.2.3 of its Reasons were grounds for constructive dismissal;
(2)	Whether the ET erred in its conclusions on affirmation by:
(1)	failing to identify and having regard to the actual period of delay,
(2)	failing to have regard to the absence of any explanation by the Claimant for such delay,
(3)	failing to have regard to the overwhelming evidence that the Claimant and the Respondent were treating the contract of employment as subsisting by:
(i)	the Claimant demanding and receiving contractual remuneration and statutory sick pay, and
(ii)	the Claimant being invited to and himself calling for an investigation into the events of 21 July 2014;
(3)	Whether the ET made a finding at paragraph 12.1 which was unsupported by the evidence and perverse.

The Background Facts and the Employment Tribunal’s Conclusions
3.	The Respondent is a firm of solicitors, founded by Mr Mohammad Asghar.  It has two offices but the main one is in Southall.  At some stage Miss Nazeem Kadri went into partnership with Mr Ashgar (it was disputed before the ET as to whether this was on an equity or salaried basis).  In 2011 Mr Asghar’s daughter, Zahra Asghar, undertook her traineeship as a solicitor with the Respondent; she was admitted on to the Roll in November 2013 and became head of the Family Department within the Respondent, going on to become a partner in October 2014.  Mr Ashgar’s son, Farhan Asghar, also started working at the office at about the same time as his sister.  The ET found Mr Asghar tended to regard the Respondent firm as his, taking little notice of Miss Kadri, and being influenced by his children.  For her part, Miss Kadri had difficult relations with Mr Ashgar’s children and resented their influence.

4.	From 2002 the Claimant was employed by the Respondent, initially as an interpreter/ translator/general office assistant but over time taking on further roles, such as that by 2014 he had been promoted to legal accounts clerk/bookkeeper and was a key member of the support staff in the Respondent’s Southall office.  The Claimant’s brother, Masood Ahmed, a qualified solicitor, also carried out work for the Respondent as a self-employed duty solicitor.  From 2011, tensions had started to arise between the Claimant and Zahra and Farhan Asghar.  

5.	On 21 July 2014, an incident occurred between Zahra Asghar and the Claimant; as the ET found, Miss Asghar threatened the Claimant with “consequences”.  Miss Kadri sought to investigate what had occurred when she arrived in the office but Miss Asghar denied threatening the Claimant and claimed that she had been sexually abused by him.  On Miss Kadri contacting Mr Asghar (senior) - who was away from the office - about the incident she was told not to do anything and that he would deal with it.  Meanwhile on the evening of 21 July, a workman working at the Southall office was instructed by Miss Asghar to change the locks.  On the same evening, another female employee of the firm spoke to the Claimant by telephone and teased him about the sexual harassment allegation saying, “I can’t trust you, you might sexually harass me”.

6.	The next day, another employee of the firm (Miss Noormohammed), who was working on reception, was told by Farhan Asghar that the Claimant no longer worked for the Respondent as he had assaulted Zahra.  Miss Noormohammed was told not to let the Claimant into the practice as he was no longer an employee and that if he wanted to see Mr Asghar he would have to wait like any other client.  Also on 22 July 2014 Mr Asghar called the Claimant’s brother in and told him that the Claimant had sexually harassed Zahra.  Mr Ahmed related that conversation to the Claimant the same day.  That evening, at a meeting in the office involving Mr Asghar’s family and Miss Kadri, Mr Asghar said that the locks of the office had been changed because he did not want the Claimant to come back as a result of the allegation of sexual harassment by Zahra.  As a matter of fact, the ET was satisfied that there had been no sexual abuse or harassment on Zahra Asghar by the Claimant; indeed it found that she had given her father an entirely fabricated account.

7.	On 24 July, Miss Zahra Asghar told the employee then covering the reception and switchboard (Mr Azam) that he should forward all calls for the Claimant to herself, her brother or her father as the Claimant was no longer working for the Respondent.  That evening, Mr Asghar emailed the Claimant referring to the situation between the Claimant and Zahra and saying he needed to investigate and would want to meet with the Claimant when he was next in the office.  The Claimant at this point was signed off work on sick leave.

8.	On Friday 25 July, the Claimant attended his mosque for Friday prayers and was seen there by Farhan and his brother.  The brothers took photos of the Claimant, apparently thinking this was evidence that he was not genuinely sick.  The ET dismissed that suggestion, noting that the Claimant was a devout Muslim who would find attendance at the mosque supportive.  In any event, on 28 July, the Claimant emailed Mr Asghar complaining about his sons taking the photos.  On 31 July, he sent in a sick note.

9.	Thereafter there were further communications between the Claimant and Mr Asghar, with the latter saying he would not be able to comment on what the Claimant had said until he had been able to investigate matters and asking the Claimant to telephone in if he was unable to come into the office in person.  The Claimant responded on 6 August saying he would answer Mr Asghar when he was well but meanwhile further requested payment of sick pay due to him.  On 12 August, the Claimant again emailed the Respondent a sick note and sent Mr Asghar a message denying Zahra’s account of events on 21 July and pointing out Mr Asghar had changed the locks and told the Claimant’s brother of the allegations, which had indicated that he had accepted Zahra’s story and did not want the Claimant back; he also again referred to the outstanding sums due to him.  Mr Asghar responded on 14 August, disagreeing with the Claimant’s perspective on events and saying the only reason the locks had been changed was due to the manner in which the Claimant had left (something the ET found was not the case); he again sought to have a discussion with the Claimant to resolve matters.  The Claimant remained away from the office but continued to send in sick notes and the Respondent, for its part, made various payments to the Claimant for July and August.  

10.	On 5 October 2014, Mr Asghar emailed the Claimant pointing out he had not been in the office or made contact for two months and requested he call in.  He emailed again on 7 October, observing that the Claimant’s sick note had expired so he was absent without leave.  The Claimant responded that evening referring to having received legal advice about how he had been treated - about the changing of the locks and the photos taken of him in the mosque as well as the allegations by Zahra - and concluded: “Changing the lock was the last straw in the series of bullying and victimisation and harassment that I have been subjected to during the time I have been working for you”.  He claimed that he had been constructively dismissed.

11.	On the Claimant’s subsequent claim of unfair dismissal, his primary case was put on the basis that he had been the subject of a direct dismissal, on 21 July 2014.  The ET rejected that suggestion, finding there had been no direct dismissal.  As for the possibility of a constructive unfair dismissal - the Claimant’s alternative case -  the ET observed that the case in this regard had been put in similar terms to the Claimant’s resignation email, such that the changing of the lock had been relied on as the last straw; a way of putting the case that would exclude various events identified in the list of issues that had been relied on as breaches but which had occurred after 23 July (which is when ET found the Claimant had learned of the lock change).

12.	The ET concluded that the Respondent had committed repudiatory breaches of the Claimant’s contract in:
“11.2.1. the respondent arranging for Masood Ahmed to inform the claimant that he had sexually abused Zahra, compounded by the fact that the alleged words used were not communicated to him.  It was further compounded by Sheraz Chowdhry a senior solicitor in the respondent, whose telephone conversation with the claimant at about 8pm on the 21 July 2014 confirmed the allegation and there was no retraction by the respondent when it became clear to the respondent that the accusation was false;
11.2.2. By the photographing of the claimant whilst at prayer at the mosque by two sons of Mr Asghar, one of whom, Farhan, was an employee of the respondent, with no apology or retraction for their actions once known to the respondent, thereby making the claimant come to the inevitable conclusion that it had been carried out on the instructions of the respondent and
11.2.3. the e-mail sent by Mr Asghar dated 14 August 2014 to the claimant stating that the only reason why the lock was changed was due to the manner in which the claimant had left the office.  The respondent (through Miss Kadri) knew the reason why the claimant had left the office was because of advice to that effect from Miss Kadri.”

13.	Whilst the ET considered that each of these matters entitled the Claimant to treat himself as constructively unfairly dismissed and that taken together they amounted to a clear fundamental breach of contract, it went on to express its conclusion, in the alternative, that the matters relied on by the Claimant as recorded in the list of issues cumulatively amounted to a breach of the implied term of trust and confidence.  The final straw being the Respondent’s email of 14 August 2014 (see the ET’s conclusion at paragraph 11.4).

14.	The matters identified in the list of issues had earlier been set out by the ET at paragraph 3.1 of its Reasons as follows:
“3.1. The claimant alleges the following breaches by the respondent:
On Monday 21 July 2014.
3.1.1. Disposal of the claimant’s desk.
3.1.2. A statement from Ms Zahra Asghar as to the consequences of his lateness;
3.1.3. The changing of the locks to the office.
3.1.4. Miss Zahra Asghar’s allegations against the claimant of sexual harassment;
On Tuesday 22 July 2014
3.1.5. By Mr Mohammad Asghar stating the claimant had abused his daughter.
On Friday 25 July 2014
3.1.6. By Mr Asghar’s two sons attending the Mosque and photographing the claimant during prayer, and
3.1.7. The respondent failing to investigate fairly the accusations against the claimant.”
15.	In the further alternative, the ET considered the position should it be found that the final straw was when the Claimant heard of the changing of the lock on 23 July 2014.  In that event, it stated it would still have come to the conclusion that the matters set out at paragraph 3.1 cumulatively amounted to a breach of the implied term of trust and confidence (see its Reasons at paragraph 11.5).

16.	Having so found, the ET turned to the question whether the Claimant had affirmed the contract notwithstanding this breach.  It held he had not.  Its reasoning being as follows:
“12.1. Where an employee is off sick what matters is whether, in all circumstances, the employee’s conduct has shown an intention to continue in employment rather than resign.  Where a long standing employee has to consider giving up the job which provides his income, is his family’s sole support and is a source of status to him in his community it is not to be considered as surprising if he takes some time to decide on a dramatic life change in leaving his only employment in this country after 13 years.  An innocent employee faced with a repudiatory breach is not to be taken to affirm the contract of employment merely by requiring the payment of sick pay for a limited period while protesting about the position that he finds himself in.
12.2. The claimant provided sick notes for the period Tuesday 26 August 2014 (the previous day was a bank holiday) until shortly before he resigned.  Having considered the legal authorities set out above, the history of the case as set out in the facts found by the tribunal and the personal circumstances of the claimant, I consider that there was no affirmation of the contract by him prior to 7 October 2014 when he resigned.
12.3. The tribunal’s conclusion in respect of affirmation remains the same irrespective of whether the facts as found by the tribunal amounted to a fundamental breach or fundamental breaches of the contract of employment or the breach of the implied term of trust and confidence with a “final straw” occurring either on a date shortly after 21 July 2014 or on receipt of the respondent’s email dated 14 August 2015 [sic].”

The Relevant Legal Principles
17.	For an employee to complain of unfair dismissal he or she must first establish that they have been dismissed.  By section 95(1)(c) of the Employment Rights Act 1996 it is allowed  that this may be shown when the employee terminated the contract of employment in circumstances in which they were entitled to do so by reason of the employer’s conduct - a constructive dismissal.

18.	The reference to the employer’s conduct is to be read as conduct that amounts to a breach of the employment contract (Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 CA).  Specifically, an employee seeking to establish constructive dismissal must show: 
(1)	A breach of contract, actual or anticipatory, by the employer; 
(2)	That is sufficiently important to justify the employee resigning is the last in a series of incidents which would justify his leaving (the last straw); 
(3)	That they left in response to the breach and not for some other unconnected reason; and 
(4)	That they did not delay too long in terminating the contract in response to the employer’s breach, otherwise they may be deemed to have waived the breach and agreed to effectively vary the contract.

19.	Whether an employer’s conduct amounts to a fundamental breach of contract justifying resignation is essentially a question of fact and it is not for an appellate Court to seek to substitute its view for that of the ET in this regard (see Woods v W M Car Services (Peterborough) Ltd [1982] IRLR 413 CA and Pedersen v Mayor & Burgesses of the London Borough of Camden [1981] IRLR 173 CA).

20.	As to whether an employee should be taken to have affirmed the contract, notwithstanding a fundamental breach, guidance was provided by the EAT in the case of W E Cox Toner (International) Ltd v Crook [1981] ICR 823, Browne-Wilkinson J (as he then was) presiding.  In particular:
“It is accepted by both sides, and we think rightly, that the general principles of the law of contract apply to this case, subject to such modifications as are appropriate to take account of the factors which distinguish contracts of employment from other contracts.  Although we were not referred to cases outside the field of employment law, our own researches have led us to the view that the general principles applicable to a repudiation of contract are as follows.  If one party (“the guilty party”) commits a repudiatory breach of the contract, the other party (“the innocent party”) can choose one of two courses: he can affirm the contract and insist on its further performance or he can accept the repudiation, in which case the contract is at an end.  The innocent party must at some stage elect between these two possible courses: if he once affirms the contract, his right to accept the repudiation is at an end.  But he is not bound to elect within a reasonable or any other time.  Mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation: Allen v Robles [1969] 1 WLR 1193.  Affirmation of the contract can be implied.  Thus, if the innocent party calls on the guilty party for further performance of the contract, he will normally be taken to have affirmed the contract since his conduct is only consistent with the continued existence of the contractual obligation.  Moreover, if the innocent party himself does acts which are only consistent with the continued existence of the contract, such acts will normally show affirmation of the contract.  However, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation: Farnworth Finance Facilities Ltd v Attryde [1970] 1 WLR 1053.
It is against this background that one has to read the short summary of the law given by Lord Denning MR in the Western Excavating case [1978] ICR 221.  The passage, at p.226:
“Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.”
is not, and was not intended to be, a comprehensive statement of the whole law.  As it seems to us, Lord Denning MR was referring to an obvious difference between a contract of employment and most other contracts.  An employee faced with a repudiation by his employer is in a very difficult position.  If he goes to work the next day, he will himself be doing an act which, in one sense, is only consistent with the continued existence of the contract, i.e. he might be said to be affirming the contract.  Certainly, when he accepts his next pay packet (i.e., further performance of the contract by the guilty party) the risk of being held to affirm the contract is very great: see Saunders v Paladin Coachworks Ltd [1967] 3 ITR 51.  Therefore, if the ordinary principles of contract law were to apply to a contract of employment, delay might be very serious, not in its own right but because any delay normally involves further performance of the contract by both parties.  It is not the delay which may be fatal but what happens during the period of the delay: see Bashir v Brillo Manufacturing Co [1979] IRLR 295.
Although we were not referred to the case, we think the remarks of Lord Denning MR in the Western Excavating case are a reflection of the earlier decision of the Court of Appeal in Marriott v Oxford and District Co-operative Society Ltd (No. 2) [1970] 1 QB 186.  In that case, the employer repudiated the contract by seeking to change the status of the employee and to reduce his wages.  The employee protested at this conduct but continued to work and receive payment at the reduced rate of pay for a further month, during which he was looking for other employment.  The Court of Appeal (of which Lord Denning MR was a member) held that he had not thereby lost his right to claim that he was dismissed.  In the Western Excavating case Lord Denning MR explains, at p.227, that the case would now be treated as one of constructive dismissal.  This decision to our mind establishes that, provided the employee makes clear his objection to what is being done, he is not to be taken to have affirmed the contract by continuing to work and draw pay for a limited period of time, even if his purpose is merely to enable him to find another job.” (Page 828E-829H)

21.	The question of the approach to the issue of affirmation of a breach of contract in the employment context was revisited by the EAT, Langstaff J (then President) presiding, in the case of Chindove v William Morrisons Supermarket plc UKEAT/0201/13.  In that case the EAT considered the proposition that passage of time might itself be sufficient for the employee to lose any right to resign:
“25. This may have been interpreted as meaning that the passage of time in itself is sufficient for the employee to lose any right to resign.  If so, the question might arise what length of time is sufficient?  The lay members tell me that there may be an idea in circulation that four weeks is the watershed date.  We wish to emphasise that the matter is not one of time in isolation.  The principle is whether the employee has demonstrated that he has made the choice.  He will do so by conduct; generally by continuing to work in the job from which he need not, if he accepted the employer’s repudiation as discharging him from his obligations, have had to do.
26. He may affirm a continuation of the contract in other ways: by what he says, by what he does, by communications which show that he intends the contract to continue.  But the issue is essentially one of conduct and not of time.  The reference to time is because if, in the usual case, the employee is at work, then by continuing to work for a time longer than the time within which he might reasonably be expected to exercise his right, he is demonstrating by his conduct that he does not wish to do so.  But there is no automatic time; all depends upon the context.  Part of that context is the employee’s position.  As Jacob LJ observed in the case of Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, deciding to resign is for many, if not most, employees a serious matter.  It will require them to give up a job which may provide them with their income, their families with support, and be a source of status to him in his community.  His mortgage, his regular expenses, may depend upon it and his economic opportunities for work elsewhere may be slim.  There may, on the other hand, be employees who are far less constrained, people who can quite easily obtain employment elsewhere, to whom those considerations do not apply with the same force.  It would be entirely unsurprising if the first took much longer to decide on such a dramatic life change as leaving employment which had been occupied for some eight or nine or ten years than it would be in the latter case, particularly if the employment were of much shorter duration.  In other words, it all depends upon the context and not upon any strict time test.
27. An important part of the context is whether the employee was actually at work, so that it could be concluded that he was honouring his contract and continuing to do so in a way which was inconsistent with his deciding to go.  Where an employee is sick and not working, that observation has nothing like the same force.  We are told, and it is consistent with our papers, that the Claimant here was off sick.  Six weeks for a Warehouse Operative, who had worked for eight or nine years in a steady job for a large company, is a very short time in which to infer from his conduct that he had decided not to exercise his right to go.  All the more so, since there seems, on the short findings of fact of this Tribunal, that there was no reason other than the employer’s conduct towards him for his choosing to go.  We simply cannot say whether this Tribunal had in mind these necessary factors.  It did not set out the law.  It did not set out the facts which caused it to apply the law.  It did not honour rule 30(6).  It did not deal with the detailed statement which the Claimant produced in respect of his constructive dismissal though this may be unduly critical of the Tribunal’s judgment.  The reference to time looks as though the Tribunal simply thought that the passage of time was sufficient in itself.  The decision is, effectively, unreasoned.  Mr Robinson said what he could, as best he could, but acknowledged the great difficulties that lay in his way.  We have no doubt that the appeal on this ground, too, has to be upheld.”

22.	Where an employee delays resigning and is away from the workplace on sick leave, in some cases an ET might find that their conduct in claiming sick pay whilst sending in the requisite sick certificates is simply neutral (see El-Hoshi v Pizza Express Restaurants Ltd UKEAT/0857/03), in others that it amounts to an affirmation of the contract of employment (see Fereday v South Staffordshire NHS Primary Care Trust UKEAT/0513/10).  The issue will always be one for the ET and will need to be determined on the particular facts and context of the case (see Hadji v St Luke’s Plymouth UKEAT/0095/12, HHJ Burke QC presiding).  As explained by HHJ Richardson in Mari v Reuters Ltd UKEAT/0539/13:
“49. … The significance to be afforded to the acceptance of sick pay will depend on the circumstances, which may vary infinitely.  At one extreme an employee may be so seriously ill that it would be unjust and unrealistic to hold that acceptance of sick pay amounted to or contributed to affirmation of the contract.  At the other extreme an employee may continue to claim and accept sick pay when better or virtually better and when seeking to exercise other contractual rights.  What can safely be said is that an innocent employee faced with a repudiatory breach is not to be taken to have affirmed the contract merely by continuing to draw sick pay for a limited period while protesting about the position: this follows from Cox Toner, which I have already quoted, for a sick employee can hardly be in any worse position than an employee who continues to work for a limited period.”

Submissions
The Respondent’s Case
23.	In respect of the first ground of appeal, Ms Mallick observes that the last straw relied on in the Claimant’s schedule identified the date of the last of the acts relied on as being 24 July.  At the Preliminary Hearing when the list of issues was clarified it was allowed that the Claimant could rely on the matters set out at paragraph 3.1 (taking the period in question to 25 July).  As Langstaff J had recognised in Chindove, the identification of the list of issues in the ET’s Judgment was an important matter (see paragraphs 21 to 23 of Chindove).  Here, however, at paragraph 11.2.3 the ET had focused on the email of Mr Asghar of 14 August 2014 (selectively quoting from that email).  Although the ET had then purported to find in the alternative that there had been a fundamental breach sufficient to establish the Claimant’s right to leave and claim constructive dismissal, in stating its alternative conclusion at paragraph 11.5 the ET did not adequately explain its reasoning; nor could the earlier reasoning at paragraphs 11.2.1, 11.2.3 and 11.4 rescue it, as those findings were tainted by the inclusion of the ET’s reliance on the email of 14 August.  

24.	Turning then to the second ground of appeal and the question whether the ET erred in its conclusions on affirmation, the Respondent contended that the ET had failed to identify and have regard to the actual period of delay, apparently continuing to base its reasoning on its erroneous finding that the last straw was on 14 August and failing to have regard to the absence of any explanation by the Claimant for such delay.  The Claimant’s last day in the office had been 21 July and, although he was still in communication with the Respondent, he did not resign until 7 October.  The Respondent was not simply seeking to rely on delay - although a prolonged delay could itself amount to affirmation - here the Claimant had numerous exchanges with the Respondent in which he showed that he was treating himself as still employed and had failed (unlike the employee in Chindove) to explain why he had not resigned earlier in response to the breaches of which he complained.  Moreover, and now also bringing in the third ground of appeal, the ET had failed to have regard to the overwhelming evidence that the Claimant and the Respondent were treating the contract of employment as subsisting by, in particular, the Claimant demanding and receiving contractual remuneration and statutory sick pay and also the Claimant being invited to, and himself calling for, an investigation into the events of 21 July 2014.  More specifically, if an employee was to be permitted to rely on sickness as the answer to affirmation then the ET would have needed to make a finding as to the nature of the sickness in question (see Mahri v Reuters), which this ET had not and there was simply no evidence to support the approach the ET had taken at paragraph 12.1.

The Claimant’s Case
25.	On behalf of the Claimant it was noted that the email of 14 August had confirmed that the locks had been changed: it was the written confirmation of that which the Claimant had earlier learned of orally.  That said it was accepted that the Claimant had put his case as relying on the changing of the lock as the last straw and that he had, strictly speaking, learned of that during the week ending 25 July.  In any event, if paragraph 11.2.3 contaminated the ET’s conclusion then the ET recovered itself at paragraph 11.5.

26.	Turning to the second ground as the authorities made clear, this was a highly fact sensitive issue; the ET had referred back to its earlier findings of fact and had explained why, in the particular circumstances, it reached the conclusion it did.  The ET should not be taken to have founded its decision on the email of 14 August: it expressly went on to address that issue at paragraph 12.3 and, having correctly directed itself as to the law, its decision should not be the subject of challenge and appellate interference simply because it had poorly expressed itself in the preceding paragraph.  As to the evidence to support the findings at paragraph 12.1, that had been provided through the Claimant’s witness statement and was grounded in the ET’s earlier permissible findings of fact which dealt with the fact that his employment with the Respondent was the Claimant’s only work since he had come to the UK and also with the way in which the Claimant saw his role with the Respondent, his need to support his family and so on.  It was further wrong to say the Claimant had been actively seeking an investigation: that was not what his email communications with the Respondent showed.

Discussion and Conclusions
27.	The matters relied on by the Claimant as the breaches of contract by the Respondent, which had led him to resign, were clarified and set out in a list of issues, after an earlier Preliminary Hearing on 20 July 2015.  Specifically, he had stated that the last straw for him had been his learning about the changing of the lock, shortly after 21 July 2014.  It appears that the ET at the Preliminary Hearing had interpreted that - fairly generously for the Claimant - as allowing him to rely on matters up to 25 July 2014, the day on which Mr Asghar’s sons had photographed him during Friday prayers.  In its Reserved Judgment on the Full Merits Hearing, however, the ET went still further and apparently extended the incidents in issue to include the Respondent’s email of 14 August.  It was wrong so to do.  Mr Amunwa observes that the email of 14 August was not wholly unrelated to how the Claimant’s case had been put: it was the written confirmation that the locks had been changed and that was the last straw relied on by the Claimant.  He also accepts, however, that the Claimant had not specifically relied on the written confirmation; his case had been put on the basis that it was simply knowing of the lock change that was the last straw and that is how it had been recorded in the list of issues.  Having considered how the Claimant’s case had been put at each stage, I am satisfied that how the ET approached matters at paragraph 11.2.3 went beyond that case.  The Respondent had been entitled to expect that the ET would determine the case in accordance with the issues identified at the earlier Preliminary Hearing, limiting the matters of which complaint was made to the week ending 25 July 2014; that was the case it had fairly understood it had to meet.  The ET erred by then adding to the list of incidents that might be relied on as breaches of contract on the Respondent’s part. 

28.	That said, the ET recognised the potential criticism that could be made of its approach in this regard and went on to consider the alternative possibility, stating that it would have reached the same conclusion even if the email of 14 August was entirely stripped out of the factual matrix.  On the breach of contract point, ultimately I accept the Claimant’s submission that this provides a complete answer to the first ground of appeal.  

29.	The point cannot, however, be left there as the ET then seems to have proceeded on the same basis - that is, that the Claimant was responding to a series of acts culminating in the email of 14 August as the last straw - when turning to consider the issue of affirmation.  The ET’s error in this respect may have been avoided by its alternative findings on the identification of the relevant breaches of contract but the problem arises again when considering its reasoning on the question whether the Claimant had affirmed the contract notwithstanding those breaches. 

30.	That this was the approach adopted by the ET when determining the affirmation issue is made apparent at paragraph 12.2 of its Reasons.  At paragraph 12.2, the ET references the sick notes provided by the Claimant but only those post-dating the 14 August email.  True it is that the ET then goes on - at paragraph 12.3 - to say that its conclusion on affirmation would be the same irrespective of whether the final straw occurred on a date shortly after 21 July 2014 or on receipt of the Respondent’s email of 14 August 2014, but I accept the Respondent’s point in this regard that it is then difficult to see how the ET reached its conclusion as it simply fails to engage with the various interactions between the Claimant and Mr Asghar, prior to 14 August.  Those interactions included, as the ET had itself found, the Claimant’s indication on 6 August that he would engage with Mr Asghar’s questions when he was well and his continued sending in of sick notes and requests to be paid.  Those were all acts that could be taken to indicate his continued perception of himself as still remaining with the Respondent’s employment, notwithstanding the events of 21 July to 25 July 2014.

31.	I do not say that the evidence and ET’s findings of fact in this case would mean that it could only have concluded that the Claimant had affirmed the contract; it was a matter of assessment that could have gone either way.  I also agree with the Claimant that the ET was entitled to take into account the matter it set out at paragraph 12.1 and that the evidential trail for the context it there records was provided in the evidence before it and from its findings of fact.  The difficulty is that the ET needed to demonstrate that it had reached its findings on this question having regard to the full chronology of the Claimant’s interactions with the Respondent, from the date of the last straw he had relied on and not some later date; it needed to show it had considered those matters relied on by the Claimant as explaining his apparent delay in resigning in the context of the full delay, not some lesser period starting only from 14 August.  Although the ET has suggested that it has done this in its either/or conclusion at paragraph 12.3, I cannot see that this does more than pay lip-service to the point; it does not begin to provide adequate explanation of the ET’s reasoning on the question of delay for the entire period in issue, in particular given its earlier focus on events post-dating 14 August and its apparent failure at paragraph 12 to reference the earlier chronology.  

32.	Before reaching my final conclusion on the appeal, however, I should, for completeness, address the third ground.  On this point, contrary to the way the Respondent’s case has been put, I do not consider that an ET is always bound to address the particular reason for the sick leave and whether the sickness itself explains why the employee delayed.  In some cases that will be an important part of the factual matrix; in others the point will remain rather more neutral.  In the present case, it is clear that the real issue raised by the appeal is as to whether the ET’s reasoning demonstrated engagement with the Claimant’s interactions with the Respondent and what that said in terms of the question of affirmation of the contract of employment for the entirety of the period in issue; that is from the week of 21 July and not simply from 14 August.  The particular nature of the Claimant’s health issues might have been seen as part of the explanation, taking into account all the relevant circumstances, but it would be for the ET to explain how this was so.  

33.	In this case my conclusion is that the decision is rendered unsafe in the sense that it is impossible to be certain that the ET in this case did have regard to all the relevant factors, which certainly included the full period of the delay (starting with the final straw relied on as identified by the Claimant) and which may also have included the nature of the Claimant’s ill-health.  It is for that reason that I allow this appeal.

34.	As a result of my conclusion on the appeal, I am bound to remit this matter to the ET on the question of affirmation, which is to be reconsidered in the light of my Judgment.  

35.	I understand from the parties that the Employment Judge has since retired and that might be a complete answer as to the nature of the remission.  Even if the Employment Judge were able to return from retirement, however, Ms Mallick says that the case should be remitted to a new Judge, who would not have reached any fixed view about the email of 14 August and would come to matters with a fresh eye.  She says there would be further evidence on the reasons for the Claimant’s sick leave in any event and there is no reason why it should not be heard by a different Employment Judge.  For the Claimant it is suggested that it would be preferable to go back to the same Employment Judge if at all possible; that Judge had made the other findings and it would be both proportionate and preferable in the interests of justice it the case returned to the same Tribunal.

36.	Having considered all the factors in Sinclair Roche & Temperley v Heard [2004] IRLR 763 EAT, I agree that, if at all possible, it would be preferable for this matter to return to the same Employment Judge.  That Judge has made extensive findings of fact and reached conclusions on all other matters, which have either not been challenged or have been upheld on appeal in any event.  There is one issue in respect of the conclusion on affirmation where I have found the reasoning unsatisfactory and, therefore, the conclusion reached unsafe, but that does not cast any question of doubt on the underlying conclusions and findings of fact which have not been criticised.  Furthermore I have no doubt as to this Employment Judge’s ability to come to matters professionally and to cast a fresh eye on the question of affirmation in the light of my Judgment.  The same Judge would also be best placed to form a view as to whether it was necessary to hear any further evidence (I suspect it might not be but would not wish to bind the ET on the remitted hearing) because he would have already heard the Claimant’s evidence and (with reference to the notes from the original hearing) would no doubt recall that without too much difficulty.  So, for all those reasons, my preference would be that this matter is heard by the same Employment Judge.  If, however, that is not possible because of the Employment Judge’s retirement then, by default, it will be heard by a different Judge and the assignment will be a matter for the Regional Employment Judge.