MS CHRISTINE BALL v THE GOVERNORS OF LA RETRAITE ROMAN CATHOLIC GIRLS SCHOOL [2001] UKEAT 337_00_2607

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 337_00_2607

Case No Appeal No. EAT/337/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS CHRISTINE BALLAPPELLANT

THE GOVERNORS OF LA RETRAITE ROMAN CATHOLIC GIRLS SCHOOLRESPONDENT

Before

Sir Christopher Bellamy

Date 26 July 2001

[1]APPEARANCES For the Appellant The Appellant in person For the Respondent Mr Ian McGlashan Consultant Peninsular Business Services 2nd Floor, Stamford House 361/365 Chapel Street Salford Manchester M3 5JY SIR CHRISTOPHER BELLAMY QC The Appellant, Christine Ball, appeals against the decision of the sitting at London South sent to the parties on 21 January 2001. In that decision the found that the Appellant was not constructively dismissed by the Respondents, the Governors of La Retraite Roman Catholic School. The facts

[2]The Appellant was engaged by the Respondents as a part-time teacher of Latin in 1997. The Tribunal found that the post involved 0.6 (i.e. three days) of each week and required 17 hours teaching. When she applied, the Appellant said she was qualified to teach both Latin and French, as her CV confirms. She had successfully taught French for many years and was acting as a tutor for the Open University on that subject.

[3]When the Appellant commenced her employment with the Respondents in September 1997, a full complement of Latin teaching was not available in that academic year. The Appellant agreed to fill up her 17 hours with three hours teaching of French to one class. Apparently, this did not go well. According to the Tribunal (paragraph 3 of the decision) the Appellant found that she was not particularly competent to teach spoken French, as distinct from teaching higher grades such as A-level classes. The Tribunal formed the impression that the Appellant was somewhat scarred by the experience of trying to keep order in the French class she was teaching.

[4]The Tribunal also found as a fact that the Appellant had been assured by the Respondents that this French teaching would be a temporary requirement during her first year, after which the sixth form would be doing Latin and her full number of hours would be occupied in teaching Latin alone. That indeed was the position in the Appellant's second year, which began in September 1998.

[5]On Thursday 27 May 1999, in the afternoon, the Appellant was asked, apparently by Miss Cheslet, the Head of the Modern and Classical Languages Department, whether she would undertake three hours teaching French to a class at level 7 (i.e. a junior class) in the following academic year. The background to this request was that it had been decided not to teach Latin to some classes at this level, with the consequence that the 17 hours of Latin teaching the Appellant was then doing would drop to 14 hours.

[6]According to the Tribunal's decision (paragraph 4) the Appellant said that on no account would she teach French and she would resign if required to do so. She offered to change her contract to 0.4 (2 days) of each week. However, there was pressure on the modern language teachers, including the three French specialists, and the Appellant was informed that the intention was to transfer one class to her for French teaching. The Appellant's stated intention to resign if this proposal was put into practice was reported to the Headmistress, Mrs Howie. By the time the discussion (which had also involved Miss Hickey, a deputy head teacher) had ended on 27 May, it was 4.35 pm and a 'parents open evening' had commenced at 4.30 pm. The Tribunal accepted that there was no time then for the Appellant to approach the Headmistress to discuss the matter, and rejected as impractical the suggestion in the Headmistress' written evidence that 'the Applicant could have talked to her as she moved among the parents'.

[7]The next day, Friday 28 May 1999, the Appellant asked for an interview with the Headmistress. According to the Tribunal it is not clear whether the Headmistress was specifically told the purpose of that request, but she must have been able correctly to deduce it. The Headmistress replied that she could not see the Appellant that day as she was interviewing for a post for a Maths teacher.

[8]The Appellant had by then prepared a letter of resignation. The Tribunal found that the closing date for submitting resignations in accordance with her contract was 31 May. It was then Friday 28 May, but the 29 th was a Saturday, the 30 th was a Sunday, and the 31 st was a Bank Holiday. The Appellant therefore considered that she had been put in a position whereby she had no option but to resign before the contractual deadline, which she did on the afternoon of 28 May.

[9]The Tribunal found that within 3 weeks, an advertisement for a 0.4 Latin teacher appeared in the Times Educational Supplement. The Tribunal said:

"We were told in evidence that the school had been told by its contacts in other schools that it was more likely to get some response from an advertisement for 2 days Latin teaching than for 3 days. No explanation was offered to us as to why, at that point, the applicant herself, having offered to work a two-day week, was not approached to withdraw her resignation."

The Tribunal's finding

[10]Against that background, the Appellant submitted to the Tribunal that the requirement that she teach French was a breach of her contractual obligation only to teach Latin and was, accordingly, constructive dismissal. That dismissal, she claimed, was unfair for lack of consultation in accordance with her contract. The Appellant further submitted that her dismissal was by reason of a diminution in the requirement to teach Latin, since that subject was now taught two, rather than three, days per week. The Respondents opposed those submissions.

[11]The Tribunal's finding on the issue of constructive dismissal was as follows:

"8. Whilst we reject most of the Respondent's submissions we conclude, for different reasons that there was no constructive dismissal in this case. . .. In the view of the Tribunal ... the Applicant was never instructed in 1999 to teach French in the next academic year. The evidence given to us was that draft timetables were prepared and discussions with the staff then ensued in May and June of each year. The approach to the Applicant on 27 th May was the first she had heard of the suggestion that she teach French. We have no reason to believe this proposal would not have been followed by discussion, had the Applicant not forestalled any discussion by resigning. We are surprised that the Respondent so readily accepted the resignation of a teacher of whose work it expressed no dissatisfaction, but that does not alter the fact that the Applicant resigned before there had been an opportunity for discussion. Had such discussion taken place there is no reason to suppose it would have necessarily ended in a breach of contract by the Respondent. There was, accordingly, neither a present, nor an anticipatory, breach of contract. A majority of the Tribunal, as a subsidiary reason for their decision, take the view that even had the Applicant, in 1999, been required to teach 3 hours French, that would not have been unreasonable in view of the qualification she had rightly held herself out as possessing and in view of her previous year's teaching of that subject, to which the Respondent had no complaint. The instruction might have become unreasonable if it had been persisted in after the Applicant had explained that she did not think it in the interests of the children who would be taught by someone not competent to teach conversational French. That assessment, however, would need to be established."

The Appellant's contract

[12]The contract between the Appellant and the Respondents was entered into in September 1997 and contains the following terms and conditions, which appear to be in standard form.

[13]Clause 4(viii) provides:

"viii) THE TITLE OF THE APPOINTMENT UNDER THIS AGREEMENT IS TEACHER OF LATIN the job description whereof will be provided to the Teacher by the Headteacher of the School and will form part of the Teacher's contract of employment."

Clause 5(a) provides:

"5 THE TEACHER AGREES To teach and serve as a teacher in the School under the directions of the Governing Body and under the immediate direction of the Headteacher of the School in accordance with: The provisions of the Education Acts and any regulations made thereunder. The 1987 Act and any order or any document referred to in any order made thereunder. The Articles of Government in force for the School."

Clause 4(vii)(b) provides:

"vii) TERMINATION OF EMPLOYMENT . .. b) Except in the case of dismissal for gross misconduct, or other exceptional cause, this agreement may be terminated at the end of a School term by notice in writing to that effect by the Teacher to this agreement two calendar months before the end of the Spring and Autumn terms and three calendar months before the end of the Summer term ..."

[14]The Appellant's job description, which we take to be the job description referred to in Clause 4(viii) of the contract, reads as follows:

"LATIN – 0.6 – CPS – JOB DESCRIPTION Main Activities and Responsibilities 1 To teach Latin at Keystages 3 and 4 and to motivate Students towards Sixth Form study in the subject. 2 To maintain appropriate forms of planning, marking, assessment and record-keeping. 3 To promote the subject through an exciting use of resources and extra-curricular activities. 4 To follow an agreed procedure of ordering and auditing equipment and materials. 5 To uphold the ethos of the School. 6 To assist in Form Tutor activities. 7 To fulfil any duty requested by the Headteacher in accordance with the Teachers' Pay and Conditions Order."

[15]It is apparent that the reference in paragraph 7 of the job description to the "Teachers' Pay and Conditions Order" is a reference to the relevant Order governing the statutory pay and conditions of employment of school teachers in maintained schools in England and Wales made by statutory instrument by the Secretary of State under the School Teachers' Pay and Conditions Act 1991. It appears that such orders are made at least annually and commonly give effect, at the beginning of each academic year, to a document known as the School Teachers' Pay and Conditions Document, which sets out in more detail the terms of employment of the teachers in question (see also Clause 5(a)(ii) of the Contract referred to at paragraph 13 above).

[16]It appears that the Employment Tribunal did not have before it the text of the relevant Document itself, but it did have before it Circular number 9/97 ("the Circular") issued by the Department for Education and Employment (DfEE) on 18 July 1997 and entitled 'School Teachers Pay and Conditions of Employment 1997', which sets out the terms of the School Teachers Pay and Conditions Document 1997 ("the 1997 Document"). It seems that the 1997 document was made under the Education (School Teachers' Pay and Conditions) (No. 2) Order 1997, S.I. 1997 no. 1789.

[17]Paragraph 98 of the Circular provides: "98. Classroom teachers must work under the reasonable direction of the headteacher and shall perform in accordance with any directions which may reasonably be given to them by the headteacher from time to time, such particular duties as may reasonably be assigned to them. Twelve professional duties are deemed to be included among the professional duties which a teacher may be required to perform. These include teaching, making assessments and reports, appraisal and covering for absent colleagues." (It appears that this paragraph summarises the effect of paragraphs 37, 37.1 and 38.1 of the 1997 Document. The twelve professional duties mentioned are set out in paragraph 39 of the 1997 Document.)

[18]Paragraph 7 of Annex A to the Circular provides as follows:

"Job descriptions 7 Drawing up and maintaining suitable job descriptions for all the staff of the school will be an important part of the annual review process. This is particularly important for teachers awarded points for responsibilities on the classroom teachers' pay spine, but should not be confined exclusively to them. The generic duties of a teacher are set out in paragraph 39 of the Document. The teacher's job description does not qualify the teacher's obligation to undertake his or her professional duties under the reasonable direction of the headteacher; rather it indicates how these generic duties are expected to apply to the teacher's work in the school. It will define the area of the school's work in which the responsibilities are to be exercised, and indicate what the post-holder is expected to achieve. It will specify what resources, including human resources, are under his or her control, and make clear to whom he or she is immediately responsible. The production and finalisation of job descriptions is normally the responsibility of the headteacher, acting with the overall context of the staffing structure at the school, as agreed by the governing body. Job descriptions are normally agreed at the time of appointment to a new post. Any new job description, or variations to an existing one, should be the subject of consultation with the teacher concerned. All such job descriptions form part of a coherent management and responsibility structure for the school. It is important that the relationships between various areas of responsibility should be clear."

[19]It is common ground that the terms of the Circular formed part of the Appellant's contract of employment entered into in 1997. In paragraph 6 of the decision, the Tribunal specifically found that such was the case in respect of the provision as to consultation as regards a variation in the job description, which is to be found in paragraph 7 of Annex A to the Circular set out above. It is not suggested that the relevant Order and Document for the year 1998 were different in any material respect. Arguments of the parties

[20]It is argued by the Appellant that the terms of the Appellant's job description, read with paragraph 98 of the Circular, did not permit the Respondents to require her to teach, against her will and for a whole academic year, a subject (French) which was not in her job description (Latin). This is not a case of "cover" as described in paragraph 99 of the Circular. In any event, the Respondent was under an obligation to carry out a proper process of consultation before purporting to implement a change in the job description. Such consultation should be with the headmistress herself, who was the only person with authority to vary the job description. In the present case there was no effective consultation. In any event such consultation needed to take place before the deadline for the submission of the Appellant's resignation, which was May 31. It is well known that after that date (which always falls within the half term holiday) there is no further movement of staff. If the Appellant had not resigned before 31 May, she would have put herself in the position of waiving the Respondents' breach (or anticipatory breach) of contract. Contrary to the Tribunal's finding, the situation was not one where the Appellant had brought matters on herself by resigning precipitately: the Respondents had left too little time for consultation to take place before the due date for resignations, and in any event had made it clear that their minds were made up.

[21]The Respondents submit that, on the true interpretation of the job description and the Circular, the headmistress could direct the Respondent to perform any teaching duty that could reasonably have been required of her. Given the Appellant's qualifications and experience as a French teacher, the Headmistress's request that she teach that subject was a reasonable one: it would not be open to her to refuse it. Since the headmistress's request was a reasonable one (as the Tribunal found at paragraph 11) the question of the opportunity for discussion between 25 and 31 May 1999 is irrelevant. In any event, the Tribunal found as a matter of fact that there was no breach of contract, anticipatory or otherwise (paragraph 10). That is a question of fact on which the EAT cannot substitute its own decision if there was evidence to justify the Tribunal's finding. In this case the conclusion reached by the Employment Tribunal was a permissible option on the basis of the evidence. Analysis

[22]The question at issue in the present case is whether the Employment Tribunal's finding that there was no constructive dismissal of the Appellant by the Respondents is vitiated by an error of law.

[23]The principal ground relied on by the Employment Tribunal is that stated in paragraph 10 of the decision, namely that the Appellant "was never instructed in 1999 to teach French in the next academic year". The Tribunal's view was that the approach regarding the teaching of French first made to the Appellant on 27 May would have been followed by discussion, but that:

"the Applicant had forestalled any discussion by resigning" and that: "the Applicant resigned before there had been an opportunity for discussion"

. The Tribunal felt that "had such discussion taken place there is no reason to suppose that it would have necessarily ended in a breach of contract by the Respondent". The Tribunal refers to: "the evidence given to us ... that draft timetables were prepared and discussions with the staff then ensued in May and June of each year".

[24]The difficulty we have with the Employment Tribunal's view is that it seems to overlook the contractual position in which the Appellant found herself. It is common ground that, according to her contract, if she felt constrained to give notice, she had to do so before 31 May 1999 if her employment was to be terminated before the beginning of the next academic year. Although Clause 5(vii)(b) of the contract refers to "three calendar months before the end of the summer term" the Tribunal found as a fact that the effective closing date for submitting resignations was 31 May (paragraph 5 of the decision) and the Respondents have not contended otherwise.

[25]Since the period of 29 to 31 May 1999 was a bank holiday weekend, to act strictly in accordance with her contract the Appellant effectively had to decide on 28 May whether or not to resign. If she had allowed the date of 31 May to go past then, strictly speaking, she could not have terminated the contract before the start of the next academic year. Had she not resigned before 31 May, the next point at which she could have terminated the contract strictly in accordance with its terms would have been at the end of the Autumn Term, i.e. part way through the following academic year.

[26]It is true that the Appellant could, at least in theory, have not handed in her resignation on 31 May, but done so later if the Respondents had persisted in a requirement to teach French that she was unwilling to accept. However, had the Appellant resigned after 31 May, she would then have put herself in a situation where she would not have been acting in accordance with her contract. We would also accept the Appellant's argument that the longer she deferred her resignation the more vulnerable she would be to the contention that she had waived any alleged breach by the Respondents.

[27]In those circumstances we have come to the conclusion that, in reaching the decision that it did, the Tribunal overlooked a material element in the legal analysis, namely the terms of the Appellant's contract as regards the last date for resignation. The Tribunal's conclusion that the Appellant had "forestalled any discussion by resigning" does not in our judgment sufficiently address the problem that the Appellant was effectively put in the position of Hobson's Choice. In effect, she had to choose either to resign before 31 May in accordance with the contract, or to allow that date to go past. If she chose the latter alternative, she ran the risk of finding herself with little de facto alternative but to accept the Respondents' proposals or, at the least, of materially weakening her own legal position.

[28]For the same reason, we do not think the Tribunal's finding that the Appellant: "resigned before there had been an opportunity of discussion" – with the implication that she had only herself to blame for acting precipitately – fully reflects the situation in which the Appellant found herself, having regard to the proximity of the last date for resignation provided by her contract.

[29]It is further apparent from the facts found by the Tribunal(a) that on 27 May the Appellant had, for the first time, been presented with the requirement that she teach French and that she had made it clear that she would feel compelled to resign if the requirement was persisted in;

(b) on 27 May the Appellant's position had been reported to the headmistress;

(d) the headmistress did not find time to see her on either 27 or 28 May;

(e) 28 May was the last working day for a resignation taking effect before the next academic year. Moreover, there is nothing in the Tribunal's findings to suggest that the Respondents had given the Appellant any indication prior to 28 May that there was any room for manoeuvre or flexibility on their part.

[30]In those circumstances, we do not consider that it can be said that the Respondents consulted adequately with the Appellant before the date when she needed to decide whether to resign or not. It seems to us that, whether or not the Respondent's request to the Appellant to teach French fell within the headmistress's power of reasonable direction referred to in paragraph 98 of the Circular (as to which, see below) the proposed change was on any view a material variation to the Appellant's job specification, and indeed of Clause 4(viii) of the contract which refers to the Appellant as a "Teacher of Latin". It was thus, at the very least, a variation upon which the Respondents were obliged properly to consult the Appellant in accordance with paragraph 7 of Annex A.

[31]More particularly, we take the view that the proposed variation affected a fundamental aspect of the Appellant's contractual obligations, since both the title of the appointment ("Teacher of Latin") and paragraph 1 of the job description ("to teach Latin at Key stages 3 and 4 and to motivate students towards sixth-form study in the subject") indicate that the teaching of Latin was the central purpose of the contract between the parties. Any material change to that central purpose – and we regard a requirement to teach French for three hours a week as a material change – could not be done without proper consultation with the Appellant, even if it could be done at all without the Appellant's consent.

[32]We have serious doubts as to whether a consultation whereby the matter was first raised with the Appellant for the first time the day before she had to decide whether to resign by the due date, and in circumstances where the headmistress was unable or unwilling to meet the Appellant before the de facto deadline for resignation expired, was an adequate consultation pursuant to paragraph 7 of Annex A.

[33]In this respect, the approach that the Tribunal apparently took, at least by implication, was that the period of consultation was not yet concluded by 28 May. The Tribunal's view is apparently based on:

"the evidence given to us ... that draft timetables were prepared and discussions with the staff then ensued in May and June of each year" and on their view that: "we have no reason to suppose that [the proposal that the Appellant teach French] would not have been followed by discussion"

. In our view that approach is erroneous in two respects.

[34]First, as we have already said, that view takes no account of the contractual situation of the Appellant or the difficulties in which the Appellant would have found herself if she had allowed 31 May to go by without resigning. Further discussions in June (there being no time for further discussion in May) would necessarily have taken place after the Appellant had lost the option of resigning in accordance with the contract.

[35]Secondly, it does not seem to us to be adequate, in this particular case, to allude to the possibility of further discussions without indicating unambiguously whether or not the Tribunal considered that those discussions would have been likely to lead to the matter being resolved in a mutually acceptable way. In effect, it does not seem to us that the Appellant can be reasonably criticised for resigning when she did, in accordance with the contractual date, unless there was some positive evidence that, had she not resigned, the matter would in all probability have been resolved in a reasonable way in further discussion. Had the Tribunal made such a finding, the Appellant could possibly have been criticised for acting precipitately. There is, however, no finding by the Tribunal to that effect. The Tribunal's finding that "there is no reason to suppose [that further discussion] would have necessarily ended in a breach of contract by the Respondent" does not in our view amount to a positive finding that in all probability the matter would have been resolved by further discussion. It is merely a finding that further discussion could have occurred.

[36]Moreover, elsewhere in the decision the Tribunal draws attention to two indications which point to the possibility that such further discussion would not, in fact, have been fruitful:(i) the Respondent readily accepted the resignation of a teacher of whose work it expressed no dissatisfaction, a matter which surprised the Tribunal (paragraph 10) and

(ii) within a short time afterwards the Respondents advertised for a teacher of Latin for two days a week, which is what the Appellant herself had offered to do, without approaching the Appellant to withdraw her resignation (paragraph 5). It can further be added, as the Appellant submits, that the mere fact that the Respondents accepted the Appellant's resignation – for which the only reason given was the requirement to teach French – is further evidence that the Respondents were not minded to make any further efforts to resolve the matter.

[37]In these circumstances we are not satisfied that the Tribunal's reference to the possibility of further discussions in June 1999 – without any indication in the Tribunal's findings that the Respondents were willing to accommodate the Appellant, and some evidence to the contrary – is a sufficient or adequate reason for concluding that the Respondents consulted the Appellant adequately in accordance with Clause 7 of Annex A.

[38]It follows from the above that we consider the primary reason advanced by the Tribunal for finding that the Appellant was not constructively dismissed – that she resigned precipitately before the Respondents had committed any breach of contract – is erroneous in law in that the Tribunal(i) failed to take into account the contractual date for resignation imposed on the Appellant under the contract;

(ii) failed to consider whether, in the light of that contractual date, the Appellant had been properly consulted in accordance with paragraph 7 of Annex A; and

(iii) failed adequately to address the question whether the possibility of further discussions in June 1999 was likely, realistically, to resolve the matter despite indications to the contrary in the Tribunal's own findings.

[39]As regards the subsidiary reason for rejecting the Appellant's claim, a majority of the Tribunal considered that, in any event, the Respondents' requirement that the Appellant teach three hours French was not unreasonable (paragraph 11). We take this to imply that it was, in the view of the majority, within the powers of the headmistress to impose such a requirement having regard to the terms of the Appellant's contract and paragraph 98 of the Circular, as indeed emerges from paragraph 12 of the decision where the Tribunal refers to:

"our conclusion that the Appellant was contractually bound to accept a reasonable amount and kind of teaching other than Latin teaching"

. In the last two sentences of paragraph 11 the Tribunal, however, adds the rider:

"The instruction might have become unreasonable if it had been persisted in after the Applicant had explained that she did not think it in the interests of the children who would be taught by someone not competent to teach conversational French. That assessment, however, would need to be established."

[40]We observe, first, that whether or not the Respondent was within its rights to require the Appellant to teach three hours French, we have already found that on any view such a requirement could not be imposed without proper consultation with the Appellant. In this case we have doubts as to whether any such proper consultation took place, essentially because the Respondents do not appear to have left enough time for that to happen before the date for the Appellant's resignation fell due.

[41]Secondly, and more fundamentally, we take the view that the majority of the Tribunal took too narrow an approach to the question whether the instruction to teach French was an instruction "reasonably given" by the headmistress within the powers conferred by the Appellant's contract having regard to the relevant Teachers Pay and Conditions Order, the effect of which is summarised in the Circular.

[42]We are inclined to accept the majority view that under the Appellant's contract she could be required to teach some French in circumstances where she was qualified to do so, even if her contract title and job description referred only to Latin, but only if such a requirement was reasonable in the circumstances. However, in judging what is "reasonable" it does not seem to us that the matter is to be looked at solely from the Respondents' point of view, for example from the point of view of making convenient arrangements for the school timetable. In a case such as the present, regard must also be had to the reason given by the teacher for being unwilling to accept what we have already found to be a material change in his or her job description. If the reason given by the unwilling teacher is itself reasonable, as distinct from the situation where the teacher is simply being lazy, uncooperative or perverse, that in our view is one, among other, factors to be taken into account in deciding whether a direction given by a head teacher overriding, in the perceived interest of the school, a reasonable objection from a teacher, is a direction 'reasonably given' or not.

[43]The Tribunal appear to accept this approach at paragraph 11 of the decision where they find that the instruction:

"might have become unreasonable if it had been persisted in after the Applicant had explained that she did not think it in the interests of the children who would be taught by someone not competent to teach conversational French"

. Our immediate difficulty, however, is that it does appear from the material before us that the Appellant's case was that she did explain, on the afternoon of 27 May, that her difficulty was in teaching oral conversational French to a junior class, as distinct from teaching senior students and adults where the emphasis is on grammar and the structure of the language. Thus she contends in her IT1 (p.1) "I have strong academic qualifications in French. Since 1985, however, my experience of teaching the subject – other than at La Retraite – has been largely with adults and sixth form 'A' level students. The emphasis has shifted from grammar and translation towards the spoken language as a means of communication. In order successfully to teach listening and speaking to whole classes of pupils aged 11 to 16, a teacher needs subject-specific classroom management skills which I do not possess – unless the class is unusually docile, which tends not to be the case at La Retraite!" She states on p.2 of the IT1 that about 4.20 pm on 27 May she explained to Miss Hickey and Miss Cheslet her reasons "as set out above". She further contends (also on p. 2 of the IT1) that it would be unprofessional and contrary to the interests of the pupils concerned to have accepted the requirement.

[44]The Respondents do not deny, in the material placed before us, that the Appellant had explained that her difficulty lay with the suggestion that she should teach oral French. Moreover the Tribunal itself refers to the development of the Appellant's doubts about her competence to teach spoken French (paragraph 1) and finds (at paragraph 3):

"The Applicant had found in her first year that she was not particularly competent to teach spoken French, as distinct from the type of teaching at higher grades, such as 'A' Level classes. Our impression was that she was somewhat scarred by the experience of trying to maintain order in a class of children. She explained to us why disorder was apt to break out."

[45]It therefore appears, contrary to what is implied by the Tribunal's finding in paragraph 12, that the Appellant had made known why she felt the requirement to teach French to be unreasonable. In those circumstances it seems to us that it was for the Tribunal to assess whether the headmistress's direction, if still insisted on, was or would have remained a direction "reasonably given". That, it seems to us, should have led the Tribunal to form some assessment of whether the Appellant's reason for resisting the direction was genuine and soundly based, and to balance that against the needs of the school in relation to which the headmistress must necessarily have a wide operational discretion. As is apparent from paragraph 12 itself, last sentence, the Tribunal did not make any such assessment.

[46]Moreover, the Tribunal's finding that the direction could have become unreasonable if it had been "persisted in" implies that the Tribunal saw no difficulty in the matter being left unresolved after the due date for the Appellant's resignation had passed. This seems to us to overlook the difficulties to which we have already referred at paragraphs 24 to 38 above.

[47]In those circumstances we consider that the subsidiary reason advanced by the majority of the Tribunal is also vitiated by an error of law, in that(i) it fails to take into account that the Appellant, on 27 May, advanced a reason for resisting the headmistress's direction and

(ii) fails to make any assessment of whether in the light of that reason, the direction to teach French nonetheless remained a direction "reasonably given" in accordance with the contract between the parties and

(iii) does not take account of the difficulties caused by the imminence of the last date on which the Appellant could resign in accordance with her contract.

[48]For those reasons we hold that this appeal succeeds.

[49]As regards the future conduct of this case, the issue dealt with by the Tribunal was whether the Appellant was constructively dismissed by the Respondents. That requires the Appellant to establish a beach by the Respondents entitling her to put an end to the contract. It seems to us that to establish such a repudiatory breach, whether anticipatory or otherwise, it would have to be shown either(a) there was no proper consultation in accordance with paragraph 7 of Annex A or

(b) the Respondents direction to teach French was not "reasonably given", or

(c) that in all the circumstances the Appellant was placed in a situation which she could reasonably be expected to put up with.

[50]We think in the circumstances the right course is to send this matter back to a differently constituted Tribunal to decide those issues having regard notably to the matters we have identified in this judgment.