Secretary Of State For Education & Employment v McCafferty [1999] UKEAT 446_98_2701

EAT
Secretary Of State For Education & Employment v McCafferty
[1999] UKEAT 446_98_2701 · 1998-11-01
MR JUSTICE LINDSAY : Mr Kevin McCafferty was a Civil Servant. He resigned by giving a notice that expired on the 27th March 1997. He claimed before the Industrial Tribunal that the circumstances surrounding him at the time he resigned constituted a constructive and unfair dismissal by his employer, the Employment Service. He claimed also that the Employment Service breached the contract which it had with him. After three days of hearings spread between August and December 1997 before the Industrial Tribunal at Sheffield under the Chairmanship of Mr R. Lloyd Williams the Tribunal unanimously held that Mr McCafferty had been unfairly dismissed and that the Employment Service had breached his contract. It also held that a "Remedy" hearing should be arranged. That has awaited this appeal. We heard the appeal on the 24th November 1998 and at its conclusion we indicated that we dismissed the appeal and would give our reasons later. We now give those reasons.We shall first look in some detail at the terms upon which Mr McCafferty was employed. He was on secondment from the Employment Service to the Benefits Agency but it is accepted that his employer remained the Employment Service. He has no individual written contract of employment specifying the terms applicable to him but there were put in evidence before the Industrial Tribunal a number of extracts from an earlier current "Personnel Handbook" and other papers. It is important to note that we are not concerned with any argument that such extracts did not have contractual force between Mr McCafferty and the Employment Service because, it seems, no such points were taken below and the Industrial Tribunal, on the material and argument put in front of it, was entitled to treat such papers as contractual. It said:-"We are of the view, and there has been no serious suggestions to the contrary, that these rules, regulations, directions, circulars and guidelines form part of the Applicant's terms and conditions of employment".That being so, arguments otherwise capable of being raised could not be raised on the appeal to us for want of their having been raised below. The Industrial Tribunal called the whole of the material so referred to as the "Rules" and we shall do the same. The Rules under two particular headings are of particular importance to the appeal; the Rules as to transfer and the Rules as to voluntary early severance. We shall take the two separately.As for transfer, the Rules provided - Rule 6 - that transfers were to be consistent with the needs of the organisation, which might be overriding. There was no automatic right to transfer - Rule 17. Even so, special consideration was to be given to applications based upon exceptional hardship and health grounds - Rule 135. Every effort would be made to arrange transfers recommended on health grounds - Rule 145. Staff were at all times able to apply for transfer -Rule 17. In the first place an application for a transfer would be made to the employee's line manager - Rule 142 - even if the application was on compassionate grounds - Rule 155. Compassionate grounds were not defined in detail but were normally expected to be such as would gain the support of a Transfer Hardship Committee, a body to which we shall have to refer in more detail shortly - Rule 155. Compassionate cases in a slightly different context were described to include, as one might expect, cases relating to the health of the individual concerned or of a close dependant relative.The applicant for transfer would learn in writing the answer given to his application - Rule 153. If the applicant considered that the decision against him would cause exceptional hardship he could first appeal to the person named in the letter informing him of the decision - Rule 153. If such an appeal was not accepted then the member of staff could appeal to a "Transfer Hardship Committee" on the grounds of exceptional hardship - Rule 154 (3). The Transfer Hardship Committee was expected to exercise its own judgment in deciding what would amount to exceptional hardship in the individual case - Rule 191. An unwell partner would not on his or her own necessarily amount to exceptional hardship - Rule 192 - but the whole situation would have to be considered. Because monetary allowances were available and were designed to overcome financial difficulties which might result from geographical transfers, financial hardship was said not therefore to be a ground of appeal but it was recognised that there might be financial elements in other situations which would be taken into account when considering whether exceptional hardship had been proved on grounds other than financial.Staff were invited - Rule 12 - to give details of their personal circumstances when applying for a transfer and if a member of staff should feel that his or her personal circumstances warranted a move on grounds of exceptional hardship then a special procedure existed whereby his or her case would be reviewed - Rule 17. That special procedure was called the "Transfer Hardship Scheme".Transfer Hardship Committees were constituted under the Rules; they are bodies independent of line-management and comprised of representatives of both management and Union members - Rule 159. The fact that the committees were so jointly composed was specified in the Rules as of being of importance so that staff seeking transfers would know their cases would be thoroughly examined - Rule 164 (2). THCs, as they were called, were to hear appeals for or against transfer - Rule 160 (1) - on grounds of exceptional hardship - Rule 161. It was for the appellant to the THC to provide evidence to that body - Rule 168 - for which a reasonable time would be given - Rule 168. The THC was to ensure that all relevant evidence was thoroughly considered - Rule 168.Representations on grounds other than exceptional hardship were to use the quite different Grievance Procedure - Rule 161. If all the members of a THC so agreed in a particular case then the THC would then make a recommendation to management that the particular case did or did not amount to case of exceptional hardship - Rule 160 (2). Management was committed to doing everything it could to carry out the THC's recommendations - Rule 163.The Rules dealt not only with those seeking transfer but also with circumstances in which managers would be expected to accept staff transferred to them. Line managers are expected, for example, to accept staff transferred to them under the Transfer Hardship Scheme - Rule 76 (2). Where a staff member was transferred compulsorily that would be at public expense - Rule 111 (1). Transfers made at an applicant's own request would normally be at his or her own expense - Rule 111 (2) - but an exception was made which is important in the present case. That exception concerned cases where the application was based on grounds of exceptional hardship which only a transfer to the desired area would alleviate - Rule 111 (2) (d). The Rules provided that THC support in itself was not sufficient to justify at public expense - Rule 111 (2) (d) - but given that management was committed to do everything it could to carry out THC recommendations, the unanimous support of a THC would plainly put a fair wind behind an attempt to obtain a transfer at public expense.Where the form of exceptional hardship relied upon consisted of considerations of health then the THC would expect a written statement by the Doctor or Consultant responsible for the treatment of the member of staff or of whichever of his or her dependants was concerned. The statement would be expected to show whether a move was necessary in order to prevent deterioration in the health of the person concerned. If the THC accepted that a move was essential it was not bound to support an appeal for transfer to the area requested unless there were compelling medical reasons such as a need to return to a home area. The test was not to be whether the move would be beneficial but whether it was necessary to prevent deterioration in health - see the notes to Rule 196. The form of the note suggests that if the Committee did accept that a move was essential and that transfer to the area was requested upon a compelling medical ground such as the need to return to a home area then in such a case the THC would be bound to support the appeal. Nonetheless, the matter would no doubt be a matter for the exercise of the judgment of the members of the THC in the individual case - Rule 191.As for Voluntary Early Severance, a circular of August 1996 described the terms and conditions applicable under the Scheme. So far as material to this appeal, the terms included that there was no automatic right to receive an early release; that would be at the discretion of the Employment Service. The Rules at Rule 15 - provided, in apparently mandatory language:-

"And the following factors will be considered:-

. ... ..The cost of releases".Releases, so far as here material, would be restricted to surplus staff. It was provided - Rule 16 - that the Department's business needs would be the main factor in approving requests but the Rule continued, again using apparently mandatory language, that:-"....... personal circumstances will be considered as sympathetically as possible".People who had strong personal or domestic reasons for wishing to leave were thus told to emphasise them in their applications.That is the background of Rules against which the conduct of the parties is to be adjudged.Mr McCafferty and his wife are both Scots. Mr McCafferty joined the Civil Service in 1982. Mrs McCafferty came from the area of Falkirk. They have two children. In late 1993 Mr McCafferty, in order to further his career, applied for a post in Sheffield. His work in Sheffield was described as excellent by his line manager but his wife was unhappy there. They had a run of misfortune; their furniture van removing them to Sheffield met with an accident. One of their children became the victim of a bowel syndrome complaint. Their home was burgled. Mrs McCafferty was suffering from Crohn's disease and was depressed. In relation to their housing, they had nearly moved into a "negative equity" position after their move to Sheffield. As the Industrial Tribunal put it:-"The problem became so grave and acute that only a move to Scotland was, it was thought, likely to alleviate their difficulties. The snag was that the family simply could not afford to move back to Scotland unless their costs and expenses were met by the Civil Service".Accordingly, in April or May 1996 Mr McCafferty completed a Transfer Application Form. The office, region or area to which transfer was wanted was completed in the form as "Falkirk/Stirling Area (Scotland)". The question "will you accept a transfer other than at public expense?" was answered "No". Such expenses may be substantial; the move down to Sheffield, at public expense, had cost in all some £19,000. The box in the Form marked "reasons for requesting a transfer; please give as much information as possible here to assist the other region/part or group in processing your request" was completed to include:-"I request a transfer on compassionate grounds due to the health of my wife and son ....... I request a transfer on health grounds. The effect of coping with my domestic situation becomes more difficult the longer it progresses. This may start to have an impact on my own health if some of the stress is not relieved. To date, I have coped with this, however I am unsure if this will continue much longer".An "Employee Assistance Report" from the "Employee Assistance Service" was attached to Mr McCafferty's application for a transfer. It said that Mrs McCafferty was finding life away from her family in Scotland quite a struggle. She was being treated with steroids as her case of Crohn's disease had become quite severe. She had become depressed and had suicidal thoughts; she was seeing a Counsellor on the advice of her GP. The Employment Assistance Service set out the disasters that had overtaken the family which included that Mrs McCafferty had had three motor accidents and that their house had been ransacked. The Report continued:-"Kevin would like to request a funded transfer to the Falkirk area, where his wife's family reside. He feels that his wife will return to Scotland in the near future and obviously it would be preferable for them all to move back together, so that they can settle back as a family and feel more supported by the network they have in that area. There is a sense of urgency in this request as his wife's mental state is insecure ..........".It is not clear whether Mr McCafferty's application was submitted first to his line manager and refused or was simply passed upwards but by the 5th June 1996 Mr Barry of Personnel Management Support at Sheffield was writing to the THC Secretary in Edinburgh requesting that the Secretary would ensure that Mr McCafferty's application for transfer to the Falkirk/Stirling area should be considered at the next THC meeting.The answer came on the 10th June 1996. Noting that Mr McCafferty wanted a transfer at public expense , Edinburgh answered:-"Unfortunately we cannot consider this type of transfer into ES Scotland. If he wishes to apply for transfer at his own expense we should need the following information before we could consider a transfer hardship appeal".The letter then set out the information needed, including medical information. Edinburgh's response would not seem justified by the Rules; transfers sought on compassionate grounds when made for ill-health and based on grounds of exceptional hardship which only a transfer to the desired area would alleviate could be at public expense - Rule 111 (2) (b) and (d) supra - and a line manager could be obliged to accept a transfer to him in a transfer hardship case - Rule 76 (2). Edinburgh was thus at fault in holding out a transfer at public expense as the only possibility. Mr Tatton-Brown, for the Employment Service, accepts that this letter of 10th June represents an improper response on the Appellant's part. Unfortunately, Sheffield's personnel branch did not draw attention to that but on the 8th August 1996 sent to Edinburgh, inter alia, a letter from Mrs McCafferty's GP and her Social Worker setting out her medical problems. The GP's letter concluded:-"For this reason I believe there are good medical grounds for her husband needing a transfer to work in Scotland near her family".The Social Worker's letter, after setting out her assessment of Mrs McCafferty's problems, concluded:-"I fully support her desire to move back to Scotland and feel that this would alleviate many of the symptoms she has experienced".On the 15th August 1996 Sheffield personnel branch asked Mr McCafferty to confirm by letter that he would be prepared to accept a transfer to Scotland at his own expense, in order that the letter should be then put to the THC. Of course, he could not confirm that; his application from the outset had been for a transfer at public expense. Sheffield was plainly still in contact with Edinburgh and on the 30th August 1996 the Sheffield personnel branch reported that the Edinburgh office had informed Sheffield:-".... that one of the criteria for a successful Transfer Hardship Application is the applicant's ability to transfer at his or her own expense. Therefore, your application can no longer be considered by the Hardship Committee".Again, the conclusion seems quite unjustified by the Rules. If that letter to Mr McCafferty meant, as it seems to mean, that only if a proposed transfer was to be at the applicant's own expense could a THC consider an application for it then that view flew in the face of Rule 111 (2). It was not, it seems, that the THC secretary in Edinburgh was reporting that a case of exceptional hardship had not been made out or that it had not been made out (within Rule 111 (2) (d)) the hardship was of the kind which "only a transfer to the desired area would alleviate" but rather that as the proposed transfer was sought to be at public expense then that, of itself, meant that the application could not be considered. Mr Tatton-Brown concedes that this letter of 30th August was at best misleading. He accepts, too, that the Employment Service should by now have seen that Mr McCafferty's case was or might be within Rule 111 (2) (d).On the 12th September 1996 Mr McCafferty wrote to the Sheffield Personnel Branch requesting a publicly funded transfer within the Rule "(111 (d))" (meaning lll (2) (d)). He said that a transfer to the Stirling/Falkirk area would allow his family the opportunity to start rebuilding their lives. He continued:-"However, if the transfer at public expense is not allowed any transfer at personal expense will place a huge financial burden on myself, which would have a knock-on effect on moving from one exceptional hardship situation to another. There is no equity in the property I own due to the slump in the housing market and my bank account is currently in a large overdraft position. It is highly unlikely that I would be in a position to afford such a move at my own expense".He said that his reasons for requesting the transfer were purely on the grounds of exceptional hardship.

In its answer of the 17th September Sheffield Personnel indicated:-

"I have spoken to PD4 who hold the policy for Transfer Hardship and they have confirmed that it is for Office for Scotland to decide whether or not expenses are payable. Even if you went to the Transfer Hardship Committee and got their backing, it is still Office for Scotland's decision. I have spoken also to Personnel in Scotland and they have a written response from Jim Grant (Head of Personnel) which states clearly that a public expense transfer would not be available".The undoubted fact that the backing of the THC would not be conclusive , even if obtained, on the subject of who would fund the transfer would not be a good reason under the Rules for not putting the matter to the THC. Moreover, under Rule 76 (2) a line manager would be expected to accept a transfer where it was a transfer hardship case. In the letter Mr McCafferty was told that the Office of Scotland would like an answer by the 23rd September to whether or not he would accept the post he had been offered.On the 25th September 1996 Mr McCafferty, because of his failure to obtain public funding for the transfer, declined that offer with reluctance and asked to whom he could appeal. On the 16th October 1996 Sheffield Personnel answered:-"........ it is for Office for Scotland to decide. There are no set criteria, the decision is theirs and is based on whether or not they are willing to pay".Given that the THCs were described in the Rules as being of considerable importance in confiding to staff that cases would be thoroughly examined, and that management was committed to doing everything that it could to carry out to THC recommendations and - Rule 6 - that it was, it seemed, only in a few cases that the needs of the organisation might be overriding, that answer, even if true, was very far from the whole truth.On the 24th October Mr McCafferty in a long letter to Sheffield Personnel requested that an appeal against refusal of a transfer on exceptional hardship grounds should be heard by a fully constituted THC. He stressed the medical evidence which supported his application. He set out the relevant medical and financial position. He urged:-"It is essential that efforts are made to improve my wife's condition. This can only happen if the family can transfer back to the Falkirk area where she can receive the additional support she needs. The impact of my wife's condition could, in the long term affect my health and have an adverse effect on the children's well being. This must be avoided at all costs".Mr Tatton-Brown accepts that this letter was an appeal for treatment within Rule 111 (2) (d).On the 25th November the Director for Scotland replied that Mr McCafferty's letter on the 24th October had been considered under the grievance procedures. That was itself was mistaken; it was representations on grounds other than exceptional hardship that were to be considered under the grievance procedure - Rule 161 - whereas Mr McCafferty's letter was an appeal against a refusal of a transfer on the grounds of exceptional hardship. The Director for Scotland continued:-"Having considered all the material facts regarding a transfer into ES Scotland I uphold the original decision made by Mr Grant Personnel Manager for Scotland not to offer you a transfer at public expense. This decision is final".It was open to Mr McCafferty to transfer to the Falkirk/Stirling area but only at his own expense. Despite his clear request, Mr McCafferty's position had never been considered by any THC.Mr McCafferty gave in his notice on the 20th February 1997 and his employment terminated on the 27th March 1997. The Industrial Tribunal held that there had been three specific breaches of his contract of which the first two were as follows:-"(1) A failure to properly deal with his application for a transfer on grounds of exceptional hardship by failing to put the matter to the THC,(2) A second failure to put the matter before the THC on appeal against the original decision despite a specific request by the applicant ......".Against the background as we have explained it, we are quite unable to say that the Industrial Tribunal erred in law in that conclusion. Mr McCafferty was effectively denied the opportunity of gaining the support of the THC support which, though not conclusive under the Rules, would have been, under those Rules, an important feature of his application that on the well supported medical and hardship grounds which he was relying upon his transfer should be at public expense.The third of the three breaches of contract found by the Industrial Tribunal referred to the other chief topic, the dealing with Mr McCafferty's application for voluntary severance. As to that, Mr McCafferty was told that if his application succeeded he would receive a lump sum of £32,500. That figure, he recognised, was some £7,000 more than he had expected. As the Industrial Tribunal held:-"He was concerned about that figure being wrong lest it be a factor which might weigh against him and make him appear too expensive to release. He promptly told the personnel department of its error. Nonetheless it was the original figure which was considered subsequently and put into the equation when determining his application".The cost of releases, it will be remembered, was amongst the factors which under the Rules were required to be considered. By implication that must have been a reference to the correct cost rather than to some false cost of releases. The Employment Service's evidence was that consideration of the correct figure would have made no difference but the Industrial Tribunal commented that Mrs Milchard, the Service's deponent on this topic:-"....... had not, it was noted, brought any evidence to substantiate that fact even though she was giving evidence some two months after the date of the original hearing at which the applicant himself had raised the issue and expressed doubts as to the matter".Against the background of a Rule (here taken to be contractual) that the Department would consider, as a factor in the exercise of its discretion, the cost of a release, for the Department to consider a false and overhigh figure would plainly be a breach of contract.The appearance of such a breach seems to have been attempted to have been met by the Employment Service by its asserting, as held by the Industrial Tribunal, that "None of the Applicants had their personal and domestic circumstances considered". The Industrial Tribunal continued with Mrs Milchard's evidence:-
"This was mainly because past experience demonstrated that it made choices between individuals on those grounds extremely difficult and often heart-rending. She added, too, that the Respondent was able to select on the grounds of business needs and costs without having to go further into the matter of personal circumstances. She did, in answer to a question, concede that personal and domestic circumstances might be influential in "close call" situations."
So far as consideration of the wrong cost figure was concerned, the Employment Service was seeking to escape its own breach - consideration of the wrong figure - by asserting another - that personal circumstances had not only not been considered sympathetically but had not been considered at all. Moreover, if selections were made on grounds that included cost then the credibility of the Service's assertion that the false figure had made no difference was weakened. In any event to fail to consider personal circumstances at all was itself a breach of the relevant Rule 16 (here taken to be contractual).In relation to Rule 16 Mr Tatton-Brown raises an argument that whilst, as he accepts, (given the procedural history we have referred to) the Rule is contractual, it does not create rights and obligations having regard, as we have understood his argument, to its use of the inescapably vague phrase "as sympathetically as possible". Had Mr McCafferty's personal circumstances been fairly considered it might have been, and very likely would have been, difficult to assert that they had not been considered "as sympathetically as possible" but the vagueness of that phrase gives no warrant for the failure to consider those circumstances at all and does not, in our view, here deny that failure the description being a breach of contract. We do not regard Wandsworth LBC -v- D'Silva [1998] IRLR p. 193 C.A. as assisting the Employment Service. The terms there being considered were held not to be contractual but to amount merely to a code of practice; by contrast and for the reasons given earlier, it has in our case to be accepted that the terms in issue are contractual. Had that not been the case the framework of the Rules as to severance and the language used in them might well have pointed to their not having contractual force but once it is accepted for a particular reason, as here, that they do have that force then the fact that in other circumstances there might have been difficulty in knowing whether they had been honoured or not does not excuse a clear breach on such facts as were here found. The Industrial Tribunal concluded that the third of the three breaches of contract which it found to exist was:-"(3) A failure to follow rules in relation to his request for voluntary severance and, in some instances, a disregard for them".That conclusion, in our judgment, represents no error of law.In this part of his argument Mr Tatton-Brown relies upon Meek -v- City of Birmingham [1987] IRLR p. 250 C.A. and complains that the Industrial Tribunal has failed to say precisely what rules were not followed or were disregarded. That, in our view, is hypercritical; it is plain enough from the Industrial Tribunal's decision what fault was found with the Employment Service as far as concerned severance. If it chooses to do so the Service can in our view see why it lost; it failed, despite Mr McCafferty's correction and despite its own rules, to consider his case for severance on the basis of its true cost and it failed, despite its own rules, not only to consider his personal circumstances as sympathetically as possible but to consider them at all. In our judgment the argument based on Meek fails.As to the consequences of those three breaches, the Industrial Tribunal directed itself, in relation to constructive dismissal that:-"It is well established that the conduct complained of has to be sufficiently grave and serious and the sort of conduct that goes to the root of the contract of employment i.e. such as would seriously undermine it. It may result from one incident i.e. "a one-off" thing or it may result from less serious but relatively consistent conduct over a period which results in the contract being undermined through an erosion of trust and confidence".The Employment Service rightly complains of the next passage in the decision in which the Industrial Tribunal, continuing, said:-"There is of course an implied term within every contract of employment that an employer should treat his or her employee reasonably and in accordance with its terms. Of course an employee has similar obligations".That, we accept, is not good law; compare e.g. Malik -v- BCCI [1997] IRLR p. 462 at paragraph 54 . Had the Industrial Tribunal had in mind a breach of that implied term there would have been a material error of law. However, by the time its conclusion was reached in its paragraph 25 the Industrial Tribunal was back, so to speak, on the straight and narrow - discussing a breach of the correct implied term, that of trust and confidence. Whether that implied term is or is not broken depends on the weight to be given in the particular circumstances of a case to such breaches as have occurred and their effect on the ordinary relationship between employer and employee in the particular case. It is thus chiefly a matter of fact best left to the Industrial Tribunal which hears the witnesses. Mr McCafferty, whom the Industrial Tribunal described as a most impressive and articulate spokesman on his own behalf, told the Industrial Tribunal he felt had passed over, ignored and disillusioned. He felt that had the Rules been adhered to he was convinced that he had an unanswerable case for a paid move to Scotland. The refusal of severance was the last straw. He felt he was "up against a brick wall". As the Industrial Tribunal put it, "he would have accepted the sentence had he received a fair trial first". He said "his employer was one which had deliberately circumvented the rules". The Industrial Tribunal held:-"The Applicant surely, not least given his extraordinary difficult circumstances, was entitled to a fair and full hearing of his case in accordance with the rules. When it became perfectly plain that he was not going get anywhere despite having followed every guideline himself he decided to leave. We have no doubt he did so because of the way he had been dealt with and given the background and circumstances we believe he was justified in doing so. In the context of this case the conduct complained of was serious".We detect no error of law in that.As to whether Mr McCafferty left the giving of his notice too late, the Industrial Tribunal looked into that and held:-
"Yes, he could have got out in November or, if not, then immediately after 17 January when he heard the news about his severance claim. However, as he himself said it would have been thoroughly stupid for him to have left with nowhere to go given his and his family's enormous problems. It is perhaps a tribute to his mental and physical prowess that he handled himself as rationally as he did. He left as soon as it was sensible for him to do so from the point of view of himself and his family."
Whether an employee so delays as to lose the ability to assert earlier events as amounting to a constructive dismissal is another question to be left, as a matter largely of fact, to the Industrial Tribunal. We do not regard this Tribunal's conclusion as one to which no Industrial Tribunal properly instructing itself could have come.We have by now dealt with the principal arguments raised by Mr Tatton-Brown but we should mention some lesser ones. A recurring theme was that Mr McCafferty's request for a transfer was granted and all that was in issue was who would pay for it. We do not see the case in that way; from the outset Mr McCafferty had asked not only for a transfer but that it should be at public expense. It was that transfer which was sought and which was refused and it was the failure of the Employment Service to see that Rule 111 (2) (d) provided an exceptional case in which a transfer on compassionate grounds could be at public expense which, with other shortcomings, wore Mr McCafferty down. To divide Mr McCafferty's request into two - firstly for a transfer and secondly that it should be at public expense - is to divide what was in reality a unity - a simple request for a transfer at public expense. Nor do we attach real weight to Mr Tatton-Brown's recurring theme that the THC represented an appellate body and that there had been no initial decision. It was never proved that there had been no initial decision and, as the events unfolded, nor was the point ever taken at the time when it should have been. Mr McCafferty's procedure - for example his "appeal/submission" of the 24th October - was not commented on as being defective at the time. It is far too late to take the point before us. Finally, Mr Tatton-Brown argues that for the Industrial Tribunal to leap from a holding that there was constructive dismissal to a conclusion that the dismissal was unfair was unjustified. However, he accepts that the point becomes academic if, as we do, we hold that the Employment Service was in breach of contract.We have now dealt, we trust, with all the Employment Service's arguments of substance. As we indicated at the conclusion of the hearing, we dismiss the appeal