MISS MARJORIE BARBARA MORROW v SAFEWAY STORES PLC [2001] UKEAT 0275_00_2109

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0275_00_2109Case No Appeal No. EAT/0275/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS MARJORIE BARBARA MORROWAPPELLANTSAFEWAY STORES PLCRESPONDENT
Before
Ms Recorder CoxDate 21 September 2001
[1]APPEARANCES For the Appellant MISS R TUCK (of Counsel) USDAW 188 Wilmslow Road Fallowfield Manchester M14 6LJ For the Respondent MR P WOODHOUSE (Solicitor) Messrs Cartwright PO Box 18 Marsh House 11 Marsh Street Bristol BS99 7BB MS RECORDER COX QC This is an appeal by Marjorie Morrow (the Appellant) from the Decision of a Bristol Employment Tribunal, promulgated on the 17 th January 2000, to dismiss her complaint of unfair constructive dismissal. It raises an interesting point relating to the implied term of trust and confidence, which exists in all contracts of employment.[2]The Appellant was employed by the Respondents as the bakery production controller in their Swindon store. Her complaint was that, for several months, she had been subjected to harassment and unreasonable pressure by the store manager, in relation to the way she did her work, and that she had received no support from her staff or from the Assistant Bakery Controller. On 20 th August 1999 the store manager gave her a severe telling off in front of members of staff and at least one customer saying, amongst other things:
"…If you cannot do the job that I pay you to do, then I will get someone who can"
. When he returned two hours later he found things still not right and told her off again, as a result of which the Appellant became extremely distressed. The Appellant then applied for other employment and subsequently resigned from her job with the Respondents on 10 th September 1999, claiming that she was unfairly and constructively dismissed. She presented her Originating Application to the Tribunal on 1 st October 1999. The Respondents denied that she had been constructively dismissed, claiming that she had simply resigned and had not been entitled to do so by reason of a breach of any express or implied term of her contract. At the hearing on 14 th December 1999 the store manager, Paul Walsh, admitted telling the Appellant off in the way that she described, explaining that he was angry because of her failure to carry out her duties adequately.[3]The Tribunal held that the store manager's actions in criticising the Appellant in public in the way he did certainly amounted to a breach of the implied term in the Appellant's contract that the employer should maintain her trust and confidence. However they went on to hold that not every breach of such a term is so serious as to amount to a repudiatory breach and that, in the circumstances of this case, what occurred was not so serious as to entitle the Appellant to resign and claim constructive dismissal. The Appellant appeals from that Decision. The Tribunal held, in addition, that the Appellant could not rely on the "last straw" principle because, although there had been an unfortunate history of difficulties and disputes between the parties, the Respondents had not been guilty of any breach of contractual terms, whether express or implied, in relation to any previous incidents. No appeal is pursued in relation to this finding. The Issues[4](1) The first issue in this appeal is whether the Employment Tribunal misdirected itself in law in finding that, although there was conduct by the employer which amounted to a breach of the implied term to maintain trust and confidence, it was not sufficiently serious as to amount to repudiatory conduct, entitling the Appellant to resign and claim constructive dismissal.(2) The second issue we have to determine is whether, if there was such a misdirection, the conclusion of the Tribunal was nevertheless plainly and unarguably right, having regard to the decision in Dobie v Burns International Security [1984] IRLR 818 . The Employment Tribunal's Decision[5]The Tribunal set out their findings in relation to the factual background to the incident on the 20 th August. They found as a fact that the Appellant's time as bakery controller was not a happy one and recorded, in paragraphs 4–10 of their Extended Reasons, the various difficulties and disagreements which occurred in the bakery department over a period of time. They found, in particular, that: "….The applicant's competence as a baker was never in doubt; but…..both Mr. Beard and Mr. Walsh the store manager had continuing concerns over the availability of stock. On her part the applicant plainly found it difficult to cope with making bread, dealing with the paper work, maintaining adequate levels of stock and managing the staff of the bakery. The position would have been a good deal easier if the applicant had been able to delegate a number of her duties….but [she] was unable to do this"(paragraph 5). They also refer to the Appellant feeling: "….obliged to work considerably in excess of her contracted hours in order to deal with the paper work….and in addition she received fairly regular criticism from her line managers for failures to ensure that there were adequate levels of the whole of the bakery's stock available for sale at all times"(paragraph 5).[6]They found (paragraph 6) that, despite the problems which existed, the Appellant declined to raise any grievance against her superiors concerning her working conditions and, further, that she did not investigate the company's disciplinary procedure, with a view to invoking it against the bakers who were refusing to do any of the paper work she wished to delegate. It would also appear that the Respondents, despite their criticisms of the Appellant, did not invoke the disciplinary procedure against her either, though curiously the Tribunal made no finding or observation about this. The industrial members of this Appeal Tribunal regarded it as unsatisfactory, on the facts found, that the Respondent employers allowed the situation to develop and continue in the way that it did, without formally investigating the reasons for the Appellant's poor performance and invoking the disciplinary procedure if necessary. This is so, in particular since the Respondents' case, as set out at paragraph 17, was that:
"….The respondent's perception was that the applicant, for whatever reason, was unable to prioritise her tasks properly, delegate to her subordinates or manage them effectively and in those circumstances it was not unreasonable for the respondent to subject her to criticism when as a result the availability of stock was poor. It was in that context that Mr. Walsh said what he said on the 20 August; and in that context his action did not amount to a repudiatory breach of contract."
[7]The events that led up to the incident on the 20 th August are dealt with at paragraph 10 of the Reasons. There was an audit of the bakery products on the afternoon of the 16 th , when many products were found to be out of stock, which Mr. Walsh regarded as unacceptable. The area manager was visiting the store on the next day and Mr. Walsh, who wanted to make a good impression, told the Appellant to make sure that the shelves were fully stocked when the store opened in the morning. The Appellant succeeded in this but Mr. Walsh then told her that:
"….as [she] was capable of getting things right at no more than an hour and ten minutes' notice, he did not expect to hear excuses in the future about lack of availability of products."
[8]The crucial findings of fact are contained in paragraph 11 of the Reasons and we repeat them in full in view of their importance:
"Three days later, on 20 August Mr. Walsh reached the bakery department at approximately 9.30 a.m. during the course of his daily walk around the store. At the time the store had a promotion: if a customer bought one bloomer loaf, he or she was entitled to another one free; but when Mr. Walsh checked, he found that there were no bloomer loaves on sale at all. Having determined that there was a full complement of staff available, and that the machinery was all working, he met the applicant on the shop floor. He asked her to explain why there was nothing on sale and remonstrated with the applicant when she attempted to explain that the stock which had been prepared for opening time had sold out. He demanded to know what time the store had opened and generally gave her a dressing down. Unfortunately, this was witnessed by at least one customer who wrote to Mr. Wylie, [the site union representative] with whom she was in some way acquainted, to complain at the way in which a member of staff was being treated. The incident concluded with the applicant being told that she had two hours to rectify the situation: but when Mr. Walsh returned two hours later he discovered that availability was still very poor and that, in particular, there were still no bloomer loaves on sale. He was plainly angry; the applicant was defensive and distressed; and Mr. Walsh's temper was not improved by going into the bakery and finding a large quantity of other bread which he thought the respondent would not be able to sell, but no bread of the kind covered by the promotion. In the course of that incident he agrees he told the applicant: - "
I will be on your back until you get it right". At some stage during the course of one or other of these conversations, he admits he also made such comments as:- "What do I pay you for?" and: - "If you can't do the job that I pay you for then I will find somebody that can."[9]The Tribunal found that, shortly after this incident, the Appellant was found by the site union representative, Mr. Wylie, to be:
"….in a very distressed state" being: "….in tears and almost incoherent" (paragraph 12). Later that day, or on the following day, the Appellant saw the Human Resources Manager and told her that she was very unhappy at the way she had been spoken to and was considering whether to raise a grievance against Mr. Walsh. Since the Appellant was about to go on holiday for two weeks it was agreed that she would consider the position over that period. However the Appellant then decided to leave her employment with the Respondents and applied for work with another supermarket chain while she was away. When she returned she handed in her letter of resignation at a meeting on 10 th September. At paragraph 15 of their Reasons the Tribunal found that: "….Efforts were made during the meeting to discuss the applicant's concerns and Mr. Walsh was conciliatory, if not actually apologetic; but the applicant was adamant and she left her employment on 15 September 1999."
[10]After referring to the parties' submissions the key findings of the Tribunal are set out at paragraphs 18 and 19:
"18. It was our unanimous view that it was regrettable that Mr. Walsh had said what he admittedly said on 20 August in the hearing and view of the public and other members of staff. That was certainly not best practice and the disciplining of staff in public is plainly to be deprecated. On the other hand, it did not appear to us that what he said was, in itself, particularly unreasonable given the background and the applicant's continuing failure to have available supplies of the particular bread which was inevitably the most in demand at the time. As we understood the situation, it ought to have been possible to replenish the shelves on a half hourly basis given the production cycle and we thought that Mr. Walsh was justifiably upset at a lack of availability on two separate occasions when the demand ought plainly to have been foreseen in advance. 19. It is our unanimous view that Mr. Walsh's actions in criticising the applicant in public in the way that he did certainly amounted to a breach of the implied term in the applicant's contract that the employer should maintain her trust and confidence. On the other hand, it is not every breach of a term of the contract which is so serious as to amount to a repudiatory breach, in other words a breach which is so serious as to go to the heart of the contract and effectively destroy it; and in the particular circumstances of this case we did not think that the conduct went that far. In our view Mr. Walsh was entitled to be annoyed and to criticise the applicant, and what he said did not in itself go beyond the bounds of a fairly crisp dressing down. It was not the reprimand, but the circumstances of the reprimand which fell below best practice and we were unanimously of the opinion that that was not such a serious matter as to entitle the applicant to regard herself as being constructively dismissed."
The Tribunal therefore concluded that her claim of constructive dismissal must fail. The Submissions[11]The Appellant's case is that the nature of the implied term of trust and confidence is such that every breach goes to the root of the contract and entitles an employee to regard himself/herself as constructively dismissed. In the present case, the Tribunal having found, as a matter of fact, that there had been a breach of the implied term, the only conclusion they were entitled to come to was that there was a fundamental breach of her contract of employment, entitling the Appellant to resign and claim constructive dismissal. They therefore misdirected themselves by introducing a test of seriousness to assess the extent of the breach and the appeal should be allowed. On the second issue, she submits that the Decision against the Appellant cannot be said to be "plainly and arguably right", despite this misdirection, having regard to the facts as found.[12]The Respondents submit that the implied duty of trust and confidence is a general obligation not to engage in conduct likely to undermine the trust and confidence required in an employment relationship. However, even conduct which meets this test will not always be serious enough to be likely to destroy or seriously damage the relationship. It is only if the conduct passes this additional test that there can be said to be a repudiatory breach, entitling the employee to resign and claim constructive dismissal. In the present case the Tribunal were entitled to conclude that the employer's conduct was not sufficiently serious as to amount to a repudiatory breach and there was no misdirection. If, contrary to the primary case, this Appeal Tribunal finds that there was a misdirection, then we are invited to find that the Decision was nevertheless plainly right, having regard to the facts found and the Tribunal's assessment of the seriousness of the employer's conduct. The Law[13]The implied term of trust and confidence is generally regarded as having first been recognised in its modern form in the case of Courtaulds Northern Textiles Ltd. v Andrew [1979] IRLR 84 . Mr. Justice Arnold, giving the judgment of the EAT and referring to the Court of Appeal's decision in Western Excavating (ECC) Ltd. v Sharp [1978] IRLR 27 said this (at paragraph 11):
"Now it is of course true, applying the Court of Appeal's test, that in order to decide that the conduct is sufficiently repudiatory to justify a conclusion of constructive dismissal one has to consider whether the conduct complained of constitutes either a fundamental breach of the contract or a breach of a fundamental term of the contract: two somewhat elusive conceptions which figure in our modern contract law. But there is not much room, as we think, for that inquiry in a case in which the test, within the terms of the contractual obligation, is one which involves considering whether the consequences, or the likely consequences, are to destroy or seriously damage the relationship of confidence and trust between employer and employee; because it does seem to us that any conduct which is likely to destroy or seriously to damage that relationship must be something which goes to the root of the contract, which is really fundamental in its effect upon the contractual relationship."
[14]The term was considered again in the EAT in Woods vWM Car Services (Peterborough) Ltd. [1981] IRLR 347 , where Mr.

Justice Browne-Wilkinson, President, said (at paragraphs 17, 18 and 22):

"In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: Courtaulds Northern Textiles Ltd v. Andrew [1979] IRLR 84. To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the Tribunals' function is to look at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it: see BAC Ltd v. Austin [1978] IRLR 332 and Post Office v. Roberts [1980] IRLR 347. ….. We regard this implied term as one of great importance in good industrial relations. Quite apart from the inherent desirability of requiring both employer and employee to behave in the way required by such a term, there is a more technical reason for its importance. The statutory right of an employee who ceases to be employed to complain that he has been unfairly dismissed is wholly dependent on his showing that he has been 'dismissed'. In the ordinary case, where an employer in fact dismisses the employee (ie cases falling within s.55(2)(a) and (b)) this normally presents no difficulty. The difficulty arises in cases of constructive dismissal falling within s.55(2)(c) where the employee has resigned due to the behaviour of the employer. As is well known, there used to be conflicting decisions as to whether, in order to constitute constructive dismissal, the conduct of the employer had to amount to a repudiation of the contract at common law or whether it was sufficient if the employer's conduct was, in lay terms, so unreasonable that an employee could not be expected to put up with it. In Western Excavating (ECC) Ltd v. Sharp (supra) this conflict was resolved in favour of the view that the conduct of the employer had to amount to repudiation of the contract at common law. Accordingly, in cases of constructive dismissal, an employee has no remedy even if his employer has behaved unfairly, unless it can be shown that the employer's conduct amounts to a fundamental breach of the contract. ….."
After referring again to the importance of the implied term of trust and confidence, the judgment continues:
"Any breach of that implied term is a fundamental breach amounting to a repudiation since it necessarily goes to the root of the contract: see Courtaulds Northern Textiles Ltd v. Andrew (supra) at paragraph 11."
[15]In Lewis v Motorworld Garages Ltd. [1986] ICR 157 the Court of Appeal approved Woods . Neill LJ adopted exactly the description of the term in that case (at page 167):
"Moreover where an employee complains that he has been constructively dismissed, it is necessary for him to prove that he terminated the contract in circumstances such that he was entitled to terminate it without notice by reason of the employer's conduct: see section 55(2) of the Act of 1978. The conduct must be repudiatory and sufficiently serious to enable the employee to leave at once. On the other hand it is now established that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of the contract of employment that the employer will not, without reasonable and proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see Woods v W.M. Car Services (Peterborough) Ltd. [1981] ICR 666 in the Employment Appeal Tribunal."
[16]The term was authoritatively described in the House of Lords in the case of Malik v Bank of Credit and Commerce International SA [1997] IRLR 462 . Lord Nicholls (at paragraphs 8, 13 and 14) said as follows:
"In the Court of Appeal and in your Lordships' House the parties were agreed that the contracts of employment of these two former employees each contained an implied term to the effect that the bank would not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Argument proceeded on this footing, and ranged round the type of conduct and other circumstances which could or could not constitute a breach of this implied term…….. ….the bank was under an implied obligation to its employees not to conduct a dishonest or corrupt business. This implied obligation is no more than one particular aspect of the portmanteau, general obligation not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages……. ….The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances."
Lord Nicholls subsequently referred to the first remedy of an employee, where a breach of the implied term has occurred, as being one which permits him to treat the employer's conduct as a repudiatory breach, entitling him to leave (see paragraph 16).[17]Lord Steyn described the development of the implied term as follows (paragraphs 54 and 56):
"The employees' primary case is based on a formulation of the implied term that has been applied at first instance and in the Court of Appeal. It imposes reciprocal duties on the employer and employee. Given that this case is concerned with alleged obligations of an employer I will concentrate on its effect on the position of employers. For convenience I will set out the term again. It is expressed to impose an obligation that the employer shall not: '…without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee'. See Woods v. W M Car Services (Peterborough) Ltd [1981] IRLR 347 (Browne-Wilkinson J), approved in Lewis v. Motorworld Garages Ltd [1985] IRLR 465 and Imperial Group Pension Trust Ltd v. Imperial Tobacco Ltd [1991] IRLR 66. A useful anthology of the cases applying this term, or something like it, is given in Sweet & Maxwell's Encyclopaedia of Employment Law (loose leaf edn), vol. 1, paragraph 1.507, pp.1467-1470. The evolution of the term is a comparatively recent development. The obligation probably has its origin in the general duty of co-operation between contracting parties: BA Hepple, Employment Law, 4 th edn (1981), paragraphs 291-292, pp.134-135. The reason for this development is part of the history of the development of employment law in this century. The notion of a 'master and servant' relationship became obsolete. Lord Slynn of Hadley recently noted 'the changes which have taken place in the employer and employee relationship, with far greater duties imposed on the employer than in the past, whether by statute or judicial decision, to care for the physical, financial and even psychological welfare of the employee': Spring v. Guardian Assurance plc [1994] IRLR 460 at 474, 86. A striking illustration of this change is Scally , to which I have already referred, where the House of Lords implied a term that all employees in a certain category had to be notified by an employer of their entitlement to certain benefits. It was the change in legal culture which made possible the evolution of the implied term of trust and confidence. … ….The evolution of the implied term of trust and confidence is a fact. It has not yet been endorsed by your Lordships' House. It has proved a workable principle in practice. It has not been the subject of adverse criticism in any decided cases and it has been welcomed in academic writings. I regard the emergence of the implied obligation of mutual trust and confidence as a sound development."
[18]Since the decision in Malik the term has been considered again by the EAT in TSB Bank plc v Harris [2000] IRLR 157 , where

Judge John Altman, giving the judgment of the Tribunal, said as follows (paragraphs 75 –76):

"Was any undermining of trust and confidence sufficient, in this case, to amount to a fundamental breach of contract? Whilst in the past there have been interesting legal arguments as to the difference between fundamental breach and a breach of a fundamental term, one, if not the first, case to identify the implied term of trust and confidence, Courtaulds Northern Textiles Ltd v. Andrew [1979] IRLR p.84, puts the matter beyond doubt. This was not referred to in argument but is well-established and uncontroversial authority: 'One has to consider whether the conduct complained of constitutes either a fundamental breach of the contract or a breach of a fundamental term of a contract…but there is not much room, as we think, for that enquiry in a case in which the test, within the terms of the contractual obligation, is one which involves considering whether the consequences, or the likely consequences, are to destroy or seriously damage the relationship of confidence and trust between employer and employee; because it does seem to us that any conduct which is likely to destroy or seriously to damage that relationship must be something which goes to the root of the contract, which is really fundamental in its effect upon the contractual relationship' The employment tribunal found that it did have the consequences of jeopardising the respondent's employment prospects. We find that the employment tribunal were entitled to find that the actions of the appellants constituted a breach of the term as to trust and confidence and that consequently there was a fundamental breach of contract."
[19]Most recently the term was revisited by the House of Lords in Johnson v Unisys Ltd. [2001] IRLR 279 . Having described the modern contract of employment as a:
"relational contract" (paragraph 20) Lord Steyn later turned to the implied term and observed that it was: "….an overarching obligation implied by law as an incident of the contract of employment" (paragraph 24). He continued: "
It can also be described as a legal duty imposed by law: Treitel, The Law of Contract, 10 th edn, p.190. It requires at least express words or a necessary implication to displace it or to cut down its scope. Prima facie it must be read consistently with the express terms of the contract. This emerges from the seminal judgment of Sir Nicolas Browne-Wilkinson V-C, in Imperial Group Pension Trust Ltd v. Imperial Tobacco Ltd [1991] IRLR 66. It related to an employer's express contractual right to refuse amendments under a pension scheme. The Vice Chancellor held that the employer's express rights were subject to the implied obligation that they should not be exercised so as to destroy or seriously damage the relationship of trust and confidence between the company and its employees and former employees. The employer's blanket refusal was unlawful. The decision did not involve trust law and the employer was not treated as a fiduciary. It was decided on principles of contract law. The Vice Chancellor described the implied obligation of good faith'. It could also be described as an employer's obligation of fair dealing. In the same way an employer's express right to transfer an employee may be qualified by the obligation of mutual trust and confidence: see United Bank v. Akhtar [1989] IRLR 507 , Sweet & Maxwell's Encyclopaedia of Employment Law , vol.1 paras. 1.5101 and 1.5107."[20]Lord Millett, at paragraph 78, referring to the implied term of trust and confidence which is now generally imported into the contract of employment, said:
"This is usually expressed as an obligation binding on both parties not to do anything which would damage or destroy the relationship of trust and confidence which should exist between them."
[21]Finally, Lord Hoffman had these observations, at paragraph 35:
"My Lords, the first question is whether the implied term of trust and confidence upon which Mr Johnson relies, and about which in a general way there is no real dispute, or any of the other implied terms, applies to a dismissal. At common law the contract of employment was regarded by the courts as a contract like any other. The parties were free to negotiate whatever terms they liked and no terms would be implied unless they satisfied the strict test of necessity applied to a commercial contract. Freedom of contract meant that the stronger party, usually the employer, was free to impose his terms upon the weaker. But over the last 30 years or so, the nature of the contract of employment has been transformed. It has been recognized that a person's employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. The law has changed to recognize this social reality. Most of the changes have been made by Parliament. The Employment Rights Act 1996 consolidates numerous statutes which have conferred rights upon employees. European law has made a substantial contribution. An the common law has adapted itself to the new attitudes, proceeding sometimes by analogy with statutory rights. The contribution of the common law to the employment revolution has been by the evolution of implied terms in the contract of employment. The most far-reaching is the implied term of trust and confidence."
Conclusions[22]We have referred to the cases in some detail because of the Respondents' submission, in this appeal, that the implied term of trust and confidence has evolved from its original formulation in the Courtaulds case to its present form, which, in relation to breach, encompasses two types of conduct: conduct which is likely to undermine the trust and confidence required if the employment relationship is to continue; and conduct likely to destroy or seriously to damage that relationship. It is, Mr. Woodhouse submits, only conduct in the second category, which amounts to a repudiatory breach entitling the employee to resign. This was, he submits, effectively what the Tribunal were deciding in the present case and there was therefore no misdirection.[23]In our view, however, the authorities show that, while there have been slight variations in the formula used to describe this implied term over the years, not only has its existence never been in doubt but its scope has never altered. We agree with the very recent observation of this Appeal Tribunal in BG plc v Mr. P. O'Brien (unreported), to which we were referred in argument in the present appeal, that, in every case:
"The question is whether, objectively speaking, the employer has conducted itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee."
If the employer is found to have been guilty of such conduct, that is something which goes to the root of the contract and amounts to a repudiatory breach, entitling the employee to resign and claim constructive dismissal. Whether there is such conduct in any case will always be a matter for the Employment Tribunal to determine, having heard the evidence and considered all the circumstances.[24]Unfortunately the Employment Tribunal in the present case does not refer to any authority on the point, which may have contributed to the error which we consider occurred. The Tribunal's finding, at paragraph 19, that Mr. Walsh's conduct in criticising the Appellant in the way that he did on 20 th August:
"….certainly amounted to a breach of the implied term in [her] contract that the employer should maintain her trust and confidence" seems to us a permissible conclusion. A public reprimand from a manager who is angry with the employee, in the presence of both customers and members of staff is, as the Tribunal find: "….plainly to be deprecated"
. It could be said, viewed objectively, to be conduct which is likely, at least, seriously to damage the relationship of trust and confidence between employer and employee, having regard to the "relational contract" which exists between them and in which the self-esteem of an employee is an important factor.[25]We take the view that, in considering the application of the implied term, the Tribunal led themselves into error by seeking to separate the actual words spoken, which they thought were not in themselves unreasonable, given the history, from the circumstances in which the reprimand took place, which they described as: "regrettable". In so doing they appear to have directed themselves that they could therefore find a breach of the implied term of trust and confidence, which was nevertheless in all the circumstances not sufficiently serious to amount to a repudiatory breach entitling the Appellant to resign. We regard that as a misdirection and we so find in relation to the first issue in this appeal. In general terms a finding that there has been conduct which amounts to a breach of the implied term of trust and confidence will mean, inevitably, that there has been a fundamental or repudiatory breach going necessarily to the root of the contract, as the EAT recognised in Woods .[26]We turn then to the second issue, with which we had more difficulty, namely whether the Decision was, despite this misdirection, nevertheless plainly and unarguably right, having regard to the principle in Dobie v Burns International Security , and that we should not disturb it.[27]Ms. Tuck, counsel for the Appellant submits that this is a stringent test and invites us to find that we cannot conclude, on the findings of fact and the Tribunal's reasoning, that the Dobie test is satisfied. She further submits that, on allowing the appeal, we should substitute a finding that the constructive dismissal claim was made out by the Appellant.[28]We agree with the first part of her submission. On the one hand the Tribunal made a clear finding that the employer's conduct on 20 th August amounted to a breach of the implied term of trust and confidence which, as we have already indicated, would seem to us to be a permissible and, indeed, justifiable conclusion on the facts. On the other hand, the Tribunal, having seen the witnesses in the case and considered all the evidence, go on to find that this was not such a serious matter as to entitle the Appellant to regard herself as having been constructively dismissed. It may be that, if the Tribunal had properly directed themselves, they would still have found against the Appellant. However we cannot say that their Decision that the claim of constructive dismissal was not made out was, having regard to their findings of fact, plainly and unarguably right. Regrettably the matter is unclear.[29]This appeal must therefore be allowed for the reasons given. However, we do not accept Ms. Tuck's second submission that we should substitute our own finding that the Appellant was constructively dismissed. In the circumstances of this case we do not consider that this is appropriate and the matter must in our view be remitted to a fresh Tribunal for re-hearing.

Cited in 1 later judgment