MRS V KENNY v MR JOHN FLOYDD & ASSOCIATES [2001] UKEAT 1085_99_1101

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1085_99_1101

Case No Appeal No. EAT/1085/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS V KENNYAPPELLANT

MR JOHN FLOYDD & ASSOCIATESRESPONDENT

Before

Mr Justice Charles Mr J R Crosby

Lord Davies of Coity

Date 11 January 2001

[1]APPEARANCES For the Appellant IN PERSON For the Respondent MR NICHOLAS CHRONIAS (Barrister) Instructed By: Messrs Beachcroft Wansbroughs Solicitors 100 Fetter Lane London EC4A 1BN MR JUSTICE CHARLES : This is an appeal from a decision of an Employment Tribunal sitting at Ashford, the Extended Reasons for which were sent to the parties on 16 July 1999. The parties are Mrs Kenny (the Applicant and Appellant) and John Floydd & Associates (the Respondent).

[2]The decision of the Employment Tribunal was that the Applicant (Mrs Kenny) was not dismissed and therefore her application for unfair dismissal was dismissed by the Employment Tribunal.

[3]The Applicant claimed that she had been constructively dismissed. The basis for the decision of the Employment Tribunal was their rejection of that contention.

[4]In her Originating Application the Applicant made four claims. This fact and the procedural history appears from paragraphs 1 to 4 of the Extended Reasons which are in the following terms:

"1 On 27 April 1998 the Applicant presented an Originating Application claiming for: (a) Breach of contract; (b) Sex discrimination; (c) Right to time off for public duties; and (d) Constructive dismissal. 2 The constructive dismissal claim was stated to be 'a culmination of events and behaviour by my employer and his partner to constitute reasons for 'constructive dismissal'." 3 A directions hearing was held on 8 July 1998 in order to clarify the issues, and subsequently, the Applicant presented a statement of further and better particulars. 4 On 28 August 1998, there was held a preliminary hearing to determine whether or not the Applicant's complaints could proceed, having regard to the statutory time limits. The Tribunal then ruled that the complaints of sex discrimination and right to time off for public duties were out of time and could not proceed. The claim for breach of contract is essentially part of the claim for constructive dismissal and, in the circumstances, this case came before us for a full merits hearing on 2 December 1998 and 5 March 1999 to consider the Applicant's claim for constructive dismissal. The Applicant's complaints relate to various incidents in the workplace between July 1997 and May 1998."

[5]The Applicant sought a review of the decision of the Employment Tribunal that she had not been dismissed. This review was refused by the Chairman pursuant to Rule 11(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 on the basis that in the opinion of the Chairman the review had no reasonable prospect of success. There is no appeal against that refusal.

[6]As was recognised by the Employment Tribunal in paragraph 2 of the Extended Reasons the Applicant put forward her claim for constructive dismissal on the basis of "a culmination of events and behaviour of her employer (Mr Floydd) and his partner Mrs Cook".

[7]In paragraphs 6 and the first part of paragraph 9 of the Extended Reasons the Employment Tribunal refer to the correct provision of the Employment Rights Act 1996 and set out their approach in law. These paragraphs are in the following terms:

"6 The law governing a case of constructive dismissal such as this is to be found in section 95(1)(c) of the Employment Rights Act 1996. 9 In this case, and in accordance with section 95(1)(c) of the Act, it is for the Applicant to show that she resigned pursuant to a fundamental breach or breaches of her contract of employment by her employer. Such breach or breaches must go to the root of the contract, the Applicant must resign in response to such breaches and she must not delay too long before so doing. …"

These paragraphs demonstrate that the Employment Tribunal did not err in law in their approach to the issue before them, namely whether the Applicant was constructively dismissed.

[8]In a full and well researched written argument which the Appellant went through before us orally, she mentions a number of authorities. The propositions that she relies on in those authorities were not disputed by the Respondent. In our judgment the Solicitor who represented the Respondent was correct to take this position. The authorities referred to by the Appellant and the guidance they give to the issue whether or not a person has been constructively dismissed do not give rise to controversial points in this case.

[9]The appeal was not put and was not allowed to proceed at the preliminary hearing before this Tribunal on the basis that it was reasonably arguable that the Employment Tribunal erred in the approach they took in law to the issue whether or not the Appellant was constructively dismissed. It follows that the appeal is not and cannot be put on the basis that by reference to the authorities referred to by the Appellant, the Employment Tribunal applied the wrong approach in law.

[10]Rather, the appeal was and has been put (and was allowed to proceed to a full hearing) on the basis that the decision of the Employment Tribunal was based on facts that were contrary to the evidence before the Employment Tribunal. This appears from the Notice of Appeal and the judgment of this Tribunal delivered at the preliminary hearing. That judgment was delivered by His Honour Judge Pugsley and understandably was the starting point for the Appellant in her argument on this appeal.

[11]In paragraph 3 of that judgment His Honour Judge Pugsley stated "The Employment Tribunal recite its findings of facts in paragraph 5" of the Extended Reasons and he then refers to paragraphs 9 to 12 of the Extended Reasons which are part of the "The Findings" contained in paragraphs 7 to 12 of the Extended Reasons, which are in the following terms:

"7 The Applicant was employed from July 1982 to 5 May 1998, which was the effective date of termination. 8 The Applicant resigned from her employment by way of her letter dated 7 April 1998 which did not give any reasons for the resignation. At that time, she had received an offer of an alternative job, and she commenced employment in the new job on 5 May 1998. 9 In this case, and in accordance with section 95(1)(c) of the Act, it is for the Applicant to show that she resigned pursuant to a fundamental breach or breaches of her contract of employment by her employer. Such breach or breaches must go to the root of the contract, the Applicant must resign in response to such breaches and she must -not delay too long before so doing. In this case, the Applicant's main complaint is that the Respondent changed the terms and conditions of her contract and failed to comply with legislation by allowing her time off for governor's duties. 10 In fact the issue of the governor's duty was resolved in November 1997, as was evidenced by the Applicant's letter of 2 November 1997. Between November 1997 and February 1998, there was no incident at all about which the Applicant has complained, and indeed, from the evidence we have heard, it seemed that the parties were on good terms at Christmas time 1997. 11 The incident which occurred in February 1998 and which the Applicant says was the final straw, was the fact that she gave the Respondent advance notice of another possible governor's meeting in July 1998. No specific date for the meeting was then known, and the Applicant had not specifically asked for any particular day off work. Equally, the Respondent had not refused the Applicant any time off, and, in these circumstances, this incident in February 1998 cannot possibly be regarded as any form of breach of the Applicant's contract of employment, nor can it be regarded as the last straw in a continuing series of breaches. 12 We find that neither the incident in February 1998, nor the previous incidents amount either collectively or individually to any serious breach or breaches of the Applicant's contract of employment. We can find no breach of contract. We find that there was no dismissal in law and this application is dismissed."

[12]The judgment delivered by His Honour Judge Pugsley continues in paragraphs 4 and 5 as follows: "4 We are concerned about the set of findings set out in the sixth page of the decision. It is said in paragraph 9: 'The Applicant's main complaint is that the Respondent changed the terms and conditions of her contract and failed to comply with legislation by allowing her time off for governor's duties.' The Tribunal makes no analysis that we can see about the complaint of the change in terms and conditions of the Applicant's working life. We cannot see where the tribunal dealt with that. The Tribunal goes on to say: 'The issue of the governor's duty was resolved in November 1997, as was evidenced by the Applicant's letter of 2 November 1997.' Again we cannot see that 2 November 1997 resolved the issue because the Applicant was querying the hours of work on a holiday rota which stated: 'I am not prepared to take a full days leave when I only need a half day, this is not acceptable, it does not complicate my hourly calculations and no other members of staff had this restriction.' 5 If you take the letter of23 October 1997 from John Floydd and the reply of 2 November 1997 from the Applicant, it is at the least arguable that it could not be said that the matter was resolved in the way suggested by the findings. We consider it is arguable that the second ground of the Applicant's ground of appeal that the decision was based on facts contrary to the evidence produced is well founded. We see no alternative but to ask the Chairman to produce the notes of the evidence directed to the issue of the hours worked and the contractual requirements as to what hours were worked; evidence given by the Respondent as to his understanding of the legislation concerning time off. We do not consider the first ground of appeal is arguable; a Tribunal is not obliged to deal with matters in any particular order or sequence.

[13]The ground identified in the judgment of His Honour Judge Pugsley as being reasonably arguable is a difficult one for any Appellant to establish because to succeed an Appellant has to show either that there was no evidence upon which the Employment Tribunal could base its finding or that its finding was perverse (see Harvey paragraphs T 1641 to 1648 and in particular paragraphs 1641 and 1645).

[14]It is not uncommon for appeals based upon an argument that the decision of an Employment Tribunal was contrary to the evidence to be coupled with a further or alternative argument that the Employment Tribunal erred in law by failing to comply with its obligation to provide proper reasons which adequately explain to the parties why they won or lost (see for example Meek v City of Birmingham District Council

[1987] IRLR 250

). Although this alternative basis was not referred to by His Honour Judge Pugsley or the Appellant, we have considered it in addition to the ground advanced by the Appellant in her Notice of Appeal and identified as reasonably arguable by this Tribunal on the preliminary hearing. This approach is one that is advantageous to the Appellant.

[15]It is well established that in considering whether or not Extended Reasons comply with the duty of an Employment Tribunal to give reasons, this Tribunal is to take a benevolent approach to the language used by the Employment Tribunal and should not analyse the Extended Reasons with a fine tooth comb.

[16]Much of the argument advanced by the Appellant went outside the ambit of our jurisdiction and the two grounds of appeal we have identified. This is because an appeal can only be based on errors of law. However, we permitted the Appellant to put her whole argument to us. The Solicitor representing the Respondent did not object to this and in our judgment he was correct not to do so.

[17]Substantial parts of the Appellant's argument were to the effect that on the facts as she had asserted them to be to the Employment Tribunal (and as she still asserts them to be) she was constructively dismissed and therefore the decision of the Employment Tribunal was wrong.

[18]We proceed on the basis that if the Employment Tribunal had found the facts to be as the Appellant asserted them to be, she had a good case on constructive dismissal by reference to the authorities and principles she referred to.

[19]However, as the Appellant correctly pointed out at the end of her argument, each case has to be decided individually and thus on its own facts assessed against the relevant history and background.

[20]We cannot re-hear the facts. The fact-finding Tribunal is the Employment Tribunal. Clearly in this case there were disputes of fact as to which the Employment Tribunal heard oral evidence and considered documents. The hearing extended over two days.

[21]The points that the Appellant believes and asserts that her version of events(i) is correct and is supported by the oral and documentary evidence,

(ii) represents a finding that was open to the Employment Tribunal on the evidence, and

(iii) would have founded her claim if it had been accepted, do not provide grounds upon which she can advance an appeal.

[22]Rather to succeed the Appellant has to establish either(i) that there was no evidence to support a finding or findings of fact upon which the decision of the Employment Tribunal is based and which is sufficiently important thereto to warrant the decision of the Employment Tribunal being set aside, or

(ii) that a conclusion or conclusions of the Employment Tribunal were perverse and therefore outside the range of conclusions open to the Employment Tribunal. As we have said this is a difficult task.

[23]Alternatively to succeed the Appellant has to show that the Extended Reasons do not adequately explain why the parties won and lost.

[24]At the end of the hearing we announced that we were going to dismiss the appeal and would give our reasons later. This judgment contains those reasons.

[25]In giving our reasons in this judgment we shall not deal with all the points raised and put by the Appellant in her written and oral arguments. We shall however deal with the points so raised which we consider fell within the parameters of our jurisdiction and which were reasonably arguable. It follows that we shall not deal with arguments which in our judgment were attempts to reargue the facts or the merits.

[26]The arguments we deal with concern:(a) the point identified at the preliminary hearing in the judgment of His Honour Judge Pugsley, and the argument related thereto that the Employment Tribunal erred in paragraph 12 of the Extended Reasons when it stated that: "We can find no breach of contract",

(b) the point that in paragraph 5 (6) of the Extended Reasons the Employment Tribunal find that the Applicant was off work sick for two weeks in July 1997 when, as is accepted on behalf of the Respondent, the evidence before the Employment Tribunal demonstrated that she was off sick in September (not July) 1997, and

(c) the point that in the Extended Reasons the Employment Tribunal does not include a passage which expressly and directly deals with the discussions which took place on 4 November 1997, and

(d) the Appellant's point that the Employment Tribunal did not take sufficient account of the background which founded her complaints based on sex discrimination and a right to time off for public duties which had been found to be out of time. The Applicant's Contract of Employment

[27]This was set out in correspondence in early October 1990 (see paragraph 5 (2) of the Extended Reasons). It provided (amongst other things) that(i) the Applicant was to work on a part-time basis, working for two and a half days spread over three days (Tuesday, Wednesday and Thursday), and

(ii) her annual leave entitlement was to be calculated on a pro rata basis in comparison to that of a full-time employee.

[28]The last letter in the relevant exchange of correspondence is dated 11 October 1990 and was written by Mr Floydd to the Appellant. It contained the following paragraphs:

"On the basis of time off, I am prepared to be flexible within reason without upsetting the package we have agreed. I had more in mind the fact that you might need to change your working day from say a Wednesday to a Friday and providing we knew in advance we would always work with you."

[29]This provision has been referred to, and we shall refer to it, as the "flexibility provision". Understandably, as a working mother, the Appellant regarded it as important.

[30]By a letter dated 11 December 1996 written by Mrs Kenny (the Appellant) to Mr Floyd (the Respondent), she confirmed that for the three month period starting on 6 January 1997 she would be working on Monday, Tuesday and Thursday, rather than on Tuesday, Wednesday and Thursday, as referred to in the October 1990 correspondence. We do not know whether the parties had regard to the flexibility provision when they agreed this alteration.

[31]During the course of argument before us, the Appellant confirmed that her understanding and case in respect of the flexibility provision was that:(a) it related to flexibility in making up her total number of working hours in a week and thus, for example, to her working on a Friday rather than a Wednesday as referred to in the letter of 11 October 1990,

(b) it did not relate to time off in the sense of holidays,

(d) it was not the basis, or the main basis, of her complaints concerning time off for public duties (the performance of her role as a school governor). In other words the Appellant's case was that the flexibility provision was a provision which enabled her to make up her two and a half days (or 18.75 hours) working week on different days and thus, for example, provided flexibility for child care arrangements and similar matters.

[32]For present purposes it is unnecessary to consider whether the flexibility provision has sufficient certainty to make it a contractual term. This is because in our judgment it was correctly accepted by the Respondent that if, of itself, it was not a contractual term it informed and was to be taken into account when considering the implied term of mutual trust and confidence.

[33]It follows that both sides have approached this case on the basis that the flexibility provision was part of the contract.

[34]It is also common ground (in our judgment correctly) that the flexibility provision(i) is not relevant to holiday entitlement and the calculation of holiday pay, and

(ii) is only indirectly relevant to compassionate leave and time off for public duties. Right to time off for public duties

[35]This is conferred by section 50 of the Employment Rights Act 1996. The nature of that right is accurately summarised in an extract from a DFE Handbook which the Appellant copied to the Respondent with her letter of 2 November 1997. That extract provides as follows: TIME OFF FROM WORK "1 Under employment law, employers must give employees who are school governors 'reasonable time off' to carry out their duties. The employee and employer have to agree on what is 'reasonable time off'. Among the points they will want to discuss are: how much time off is needed to carry out a governor's duties. Whether the employee is also being given time off from work for other activities: The particular circumstances of the employer's business and the likely effect which the employee's absence may have on it. Payment for time off 2 Employers may give time off with pay, but do not have to do so. This is for discussion between the employee and the employer. Settling disagreements 3 If the employee and employer cannot agree on any of these questions, either of them can ask for help from the Advisory Conciliation and Arbitration Service (ACAS), which will try to settle any differences informally. An employee who is still not satisfied may complain to an industrial tribunal."

[36]There is potentially some overlap between the obligation of the Respondent to allow the Appellant reasonable time off and(i) the fact that she worked part-time, and

(ii) the flexibility provision. This overlap relates to the reasonableness of the Appellant making up her hours at other times during a week when she took time off for public duties. However, the parties accepted before us that the focus of the Appellant's complaint and thus of the discussions and the dispute relating to the time she took off, and wanted to take off, to perform her duties as a school governor was the existence and implementation of the statutory right.

[37]We add that there is an equivalent potential overlap between the time the Appellant took off for compassionate purposes and(i) the fact that she worked part-time, and

(ii) the flexibility provision. This was not a feature of the argument before us (or as we understand it before the Employment Tribunal). The events leading up to the exchange of correspondence beginning with the Appellant's letter dated 25 September 1997 .

[38]The findings of the Employment Tribunal as to these events are set out in paragraphs 5 (4) to (8) of the Extended Reasons which are in the following terms:

"5 We find the following facts :- (4) In 1997, Mr Floydd decided that he wanted to market his practice more efficiently and, as a result, Mrs Margaret Cook joined the practice as Marketing Director with effect from 2 June 1997. She also brought with her her former secretary, Betty Willis. The Applicant and other staff were informed of the plans for the practice. (5) At about the same time, Ann Cochran resigned from her employment following the birth of her baby. Mr Floydd invited the Applicant to become a full-time secretary, but she declined. (6) The arrival of Mrs Cook resulted in changes being made. Mrs Cook could not understand how the Applicant came to calculate her holiday entitlement, and on two occasions asked the Applicant to explain. The Applicant objected to these questions and regarded them as harassment. The Applicant was off work sick for two weeks in July 1997. (7) The Applicant was a school governor and had been asked to sit on a selection panel to appoint a new Head Teacher. This would entail her absence from work for 1 to 1½ days on 16/17 July 1997. The Applicant spoke to Mrs Cook about the matter, explaining that she was entitled to time off, and did expect to be paid. After some conversation about the matter, the Applicant agreed to check the position and subsequently told Mrs Cook that she did need to be away for the afternoon of 16 July, but there was no requirement to pay her . (8) The Applicant had also attended her uncle's funeral on 3 July, and she expected that day to be treated as compassionate leave and not held against her holiday entitlement. Mrs Cook, in fact, informed her that the funeral day had to be taken as normal leave."

[39]As appears therefrom changes took place with the departure of Anne Cochran and the arrival of Mrs Cook. Also, as appears therefrom, in July the Appellant attended her uncle's funeral and as a school governor sat on a selection panel. It is common ground that the Appellant was away for one and a half days in connection with that selection panel.

[40]As to the time off to sit on the selection panel the Appellant's case was that she informed Mrs Cook that she was entitled to the time off but that she did not expect to be paid for it. As we understand it, before the Employment Tribunal there was some dispute as to whether the Appellant told, or initially told, Mrs Cook that she expected to be paid for the time off to sit on the selection panel. In our judgment nothing turns on this. Firstly, because the latter part of paragraph 5 (7) of the Extended Reasons indicates that the Appellant told Mrs Cook that there was no requirement to pay her, and secondly the letter from Mr Floydd dated 23 October 1997 in which he said: "In your case, we do not propose to deduct salary for any of the time taken recently which was not official leave, providing you understand that it is for us to grant this and without it setting a precedent for the future." indicates that by the time that letter was written it was common ground between the parties that the Appellant was not entitled to payment for time she took off to perform her duties as a school governor.

[41]It was also common ground that this paragraph in the letter dated 23 October 1997 related to the one and a half days taken off in respect of the interview panel and the one day taken off by the Appellant to attend her uncle's funeral. The correspondence between 25 September 1997 and 2 November 1997

[42]This is referred to in paragraphs 5 (9) to 5 (14) of the Extended Reasons.

[43]This correspondence needs to be read as a whole and in sequence. It also needs to be read in the light of the points that were in issue between the parties at that time, the background to those issues and the oral evidence given to the Employment Tribunal in respect of those matters and that correspondence. In other words, the correspondence should not be read in isolation. The citation from the letter of 2 November 1997 in paragraph 4 of the Judgment of HH Judge Pugsley.

[44]This is set out in paragraph 12 above and is:

'I am not prepared to take a full days leave when I only need a half day, this is not acceptable, it does not complicate my hourly calculations and no other members of staff had this restriction.'

[45]In our judgment at the preliminary hearing this Tribunal were wrong to conclude that this passage (which they cited) cast doubt on the finding of the Employment Tribunal that:

"The issue of the governor's duty was resolved in November 1997, as was evidenced by the Applicant's letter of 2 November 1997."

This is because this cited passage from the letter dated 2 November 1997 refers to leave (or holiday) and thus to separate issues to that relating to time off to enable the Appellant to perform her duties as a school governor.

[46]In our judgment, the letter of 2 November 1997 from the Appellant makes it clear that as to the past (and thus time off already taken) the issue in relation to the governor's duty (and compassionate leave) had been resolved when the Appellant states:

"I am pleased that the matter of the funeral day and governor's duty has finally been brought to a conclusion."

This relates back to Mr Floydd's letter of 23 October 1997 when he informed the Appellant that he did not propose to deduct salary for the time that she had taken off in July 1997 to sit on the interview panel (and to attend her uncle's funeral).

[47]In our judgment this clearly resolved(i) any past failure of the Respondent to comply with legislation by allowing the Appellant time off for governor's duties, and

(ii) any complaint relating to the time off for attending her uncle's funeral. We deal with the position concerning the future under the next heading. The Applicant's main complaint

[48]This is identified by the Employment Tribunal in paragraph 9 of the Extended Reasons in the following terms:

"9 …In this case, the Applicant's main complaint is that the Respondent changed the terms and conditions of her contract and failed to comply with legislation by allowing her time off for governor's duties."

It was common ground before us that this was a correct identification of the Applicant's main complaint.

[49]In the judgment given at the preliminary hearing His Honour

Judge Pugsley says:

"The Tribunal makes no analysis that we can see about the complaint of the change in terms and conditions of the Applicant's working life. We cannot see where the tribunal dealt with that."

As we understand it the phrase "change in terms and conditions of the Applicant's working life" is used to cover changes in her contract of employment and compliance with legislation relating to time off for the performance of public duties.

[50]Having had the benefit of full argument we do not agree that the Employment Tribunal do not deal with such matters in the Extended Reasons.

[51]In our judgment when considering this point the Extended Reasons have to be read with the correspondence to which they refer and in the light of the issues and complaints identified by the Employment Tribunal and its findings. In our judgment when this is done it can be seen that the Employment Tribunal did deal with the main complaints of the Applicant which it identified.

[52]As the Employment Tribunal recognised to establish that she was constructively dismissed the Applicant had to establish that there was a fundamental breach of her contract of employment. Her main complaints identified the breaches she relied on (ie breach of the flexibility provision and further or alternatively of the implied term of trust and confidence). The Employment Tribunal found that there was no such breach and, indeed, there was no breach of contract (see paragraph 12 of the Extended Reasons).

[53]The allegation or complaint that the Respondent changed the terms and conditions of the Applicant's contract related to the point made by the Applicant in the correspondence referred to by the Employment Tribunal in the Extended Reasons that the Respondent had changed, or had sought to impose a change, by removing (or restricting) the flexibility provision.

[54]As to this, in her letter of 25 September 1997 the Applicant said this:

"Now I am told I cannot change any days. This will not only affect me generally in terms of childminding but will also deny Betty any flexibility. This new rule came without any formal notice, and I can see no real justification in doing so, only to lower my moral once again as you have done on numerous occasions in the past."

We repeat that we accept that this letter and the letters that follow it should be read in full and in their context. It is however clear that this allegation relates to something which the Appellant says she had been told before she wrote the letter. It therefore relates to an earlier discussion. Oral evidence as to that discussion is therefore relevant to the interpretation and effect of the correspondence.

[55]This point also applies to other discussions between the parties leading up to, during the period of and after the end of the exchange of correspondence in September, October and November 1997. The Employment Tribunal heard oral evidence as to such discussions. It follows that the fact that one or both of the parties recorded his or her respective view or understanding of the content and affect of discussions in the correspondence, or in a note, does not mean that the Employment Tribunal had to accept that view as correct. For example the allegation made by the Applicant in her letter of 25 September 1997 (and cited in paragraph 54 above) is not proved to be correct by that letter. This was a small office and in our judgment the oral evidence as to the discussions that took place was important to the resolution of the factual issues in this case.

[56]Having made those points relating to the context in which the correspondence was written and the background thereto we accept that if the exchange of correspondence between 25 September and 2 November 1997 is read in isolation, it can be read as(i) a confirmation of the Appellant's allegation that the effect of what she had been told was that the flexibility provision was being removed, or

(ii) as a removal thereof.

[57]However, in our judgment if the correspondence is read in isolation it can also be read as an assertion by the Respondent that for the future the Applicant must abide by the terms of her contract including the flexibility provision.

[58]In our judgment in general terms the latter interpretation reflects an underlying dispute relating to the implementation of the flexibility provision as opposed to one where the Respondent (himself or through Mrs Cook) has asserted, and is asserting, that for the future there is to be no flexibility or the flexibility provision is to be severely restricted.

[59]In our judgment there was ample oral and documentary evidence before the Employment Tribunal upon which it could conclude, as it did, that the Respondents did not act in breach of the Appellant's contract of employment by unilaterally removing or restricting, or seeking to remove or restrict, the flexibility provision and thus that the discussion and dispute was as to its implementation rather than its existence (or future existence).

[60]In our judgment, in this context it should in our judgment be remembered that the Appellant did not have a "flexi time contract" and pursuant to the flexibility provision she had no right to require the Respondent to agree that, for example, she could work on a Friday as opposed to a Wednesday. Further, under the flexibility provision, the impact of requests made by the Appellant for changes was to be assessed, having regard to their effect on the package that had been agreed.

[61]Also, in our judgment in this context, it should be remembered that in his letter of 23 October 1997 Mr Floydd had said:

"I very much regret that you feel great distress over this matter. We have a working relationship that goes back over many years and I expect to continue to have a harmonious working atmosphere within the office."

We repeat that we accept that this extract should not be read in isolation but in our judgment it recognises or supports points that (i) the Appellant was distressed, and (ii) the Respondent's stance was that he wanted to continue a harmonious working relationship which would reflect the flexibility provision.

[62]We now turn to consider the complaint relating to the legislation giving a right to time off for public duties.

[63]The relevance of this in respect of the Appellant's claim for constructive dismissal is that the way in which the Respondent dealt with the Applicant's requests for time off, having regard to the statutory entitlement to reasonable time off, amounted to a breach of an implied term of the contract.

[64]As to the position before September 1997, as we have said in our judgment, the Employment Tribunal were entitled to conclude that it was dealt with by 2 November 1997.

[65]As to the future, we accept that it is arguable that matters in this context were left "up in the air". However, the Appellant sent the Respondent extracts from a Government publication summarising the position under section 50 of the Employment Rights Act 1996 and in the light of that there was really nothing for the parties to negotiate or discuss concerning their respective statutory rights and obligations. Additionally, in the correspondence there is nothing to indicate that the Respondent would not comply with his statutory obligations.

[66]In this context we agree with the submission made on behalf of the Respondent that it is instructive to consider what happened when the Appellant made a request for time off to perform her duties as a school governor. As appears from paragraph 11 of the Extended Reasons this occurred in February 1998. We were shown a letter dated 11 February 1998 which was before the Employment Tribunal and had a manuscript annotation on it. By that letter the Appellant informed Mr Floydd that in July it was likely that as a school governor she would be required to attend and be interviewed at some time during an Ofsted Inspection. The manuscript note is in the handwriting of Mrs Cook and reads:

"18/2 thanked Viv – she will let us know ASAP"

. Leaving aside oral evidence from Mrs Cook and the Respondent this manuscript note provided evidence upon which the Employment Tribunal could conclude (i) that the Respondent had recognised his statutory obligations in respect of time off for the Appellant to perform her duties as a school governor, and (ii) that, as the Employment Tribunal say in paragraph 11 of the Extended Reasons:

"… this incident in February 1998 cannot possibly be regarded as any form of breach of the Applicant's contract of employment, nor can it be regarded as the last straw in a continuing series of breaches."

[67]In our judgment it follows that:(a) the Employment Tribunal had evidence upon which it could reach the conclusion it did in paragraph 12 of the Extended Reasons that it could find no breach of contact,

(b) that conclusion was not perverse and indeed was well within the range of conclusions open to the Employment Tribunal, and

(c) that conclusion shows that the Employment Tribunal have dealt with the Applicant's main complaint which it identifies in paragraph 9 of the Extended Reasons. That complaint was an allegation that the Respondent had acted in breach of contract (i) by removing (or restricting) the flexibility provision, or seeking to impose such a change to her contract, and (ii) by failing to comply with legislation allowing her time off for governor's duties. Therefore, as we have explained the Employment Tribunal deal with the two bases upon which the Appellant asserted there had been a breach of contract which founded a constructive dismissal.

[68]We would add, although it is not necessary for us to do so, that on a proper approach to the Extended Reasons they can also be read as a finding that, even if there was a breach of contract in relation to the Applicant's main complaint, there was no sufficiently serious breach or breaches of the contract which entitled the Applicant to terminate it and assert that she had been constructively dismissed. The finding as to when the Appellant was off sick

[69]The Employment Tribunal found that the Appellant was off work sick for two weeks in July 1997. It is common ground before us that this is incorrect and that she was off sick for two weeks in September 1997. In out judgment this error is not sufficiently serious or important to the reasoning of the Employment Tribunal to found a successful ground of appeal. In this context we have not forgotten the Appellant's point that a finding that she was off sick in July would indicate that she was off sick shortly after Mrs Cook arrived and changes began and not shortly before her letter of 25 September 1997. However, in all the circumstances of the case we are of the view that this timing point is not significant. The events of 4 November 1997

[70]Our papers, and as we understand it the papers before the Employment Tribunal, contained a note of what the Appellant says occurred in discussions on that date. The account of events in the Appellant's note was disputed and the Employment Tribunal heard evidence about it.

[71]This dispute is relevant to(i) the interpretation and effect of the correspondence and thus the respective stances of the parties therein,

(ii) the Appellant's point that the Respondent did not deal with her grievance, and

(iii) the linkage between the incident in February 1998 and the correspondence ending on 2 November 1997 and thus to the reason why the Applicant gave notice terminating her employment by her letter dated 7 April 1998.

[72]In our judgment it would have been better if the Employment Tribunal had dealt with the exchanges that took place on 4 November specifically in the Extended Reasons. However, we accept the point made on behalf of the Respondent that findings made by the Employment Tribunal indicate with sufficient clarity that the Employment Tribunal did not accept the Applicant's version of events as set out in her note. These findings are the finding in paragraph 5 (15) of the Extended Reasons that:

"Following the letter of 2 November 1997, there was no further correspondence and no matters about which the Applicant complained" and the finding in paragraph 10 of the Extended Reasons that: "

Between November 1997 and February 1998, there was no instance at all about which the Applicant has complained, and indeed, from the evidence we have heard, it seemed that the parties were on good terms at Christmas time 1997."

[73]Further in our judgment these findings indicate that the Employment Tribunal considered and adequately dealt with the Appellant's point that the Respondent's failure to deal with her grievance was a breach of her contract of employment which entitled her to terminate it and claim constructive dismissal. The background

[74]The Appellant has argued that the Employment Tribunal failed to have regard or proper regard to the relevant background and, in particular, to the bases for her claims of sex discrimination and failure to comply with the statutory provisions concerning right to time off for public duties which had been ruled to be out of time. As to the latter this formed part of the main complaint identified by the Employment Tribunal. As to the former, the basis of the sex discrimination claim in her IT1 was an alleged failure to review pay after a period of four years due to the Applicant's marital and family status. As to that it is to be noted that one of the points specifically referred to in paragraph 5 (9) of the Extended Reasons in which the Employment Tribunal summarised the letter of 25 September is the Appellant's enquiry whether or not she would be getting a pay rise.

[75]In our judgment the nature of the claim for sex discrimination and the direct, or indirect, reference to it in the correspondence considered by the Employment Tribunal has the result that the Employment Tribunal cannot be said to have erred by failing to have proper regard to this background to the Applicant's main complaints. Overall conclusion

[76]For the reasons we have given in our judgment:(a) the Employment Tribunal had evidence before it upon which it could base its conclusions,

(b) those conclusions were not perverse, and

[77]It was apparent from the manner in which the Appellant prepared and presented her appeal that she has invested considerable time, emotion and energy into these proceedings and that she believes that she has a good claim. We are grateful to her for the clear and calm manner in which she presented her arguments and we hope that, although no doubt she will continue to believe that the Employment Tribunal made incorrect findings of fact, she will now be able to put this litigation behind her.