MS J LOGAN v THE COMMISSIONERS OF CUSTOM AND EXCISE [2002] UKEAT 686_00_2305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 686_00_2305Case No Appeal No. EAT/686/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS J LOGANAPPELLANTTHE COMMISSIONERS OF CUSTOM AND EXCISERESPONDENT
Before
Mr Recorder BurkeDate 23 May 2002
[1]APPEARANCES For the Appellant MR A SERR (of Counsel) Instructed by: Howard Cohen & Co 29 Park Square Leeds LS1 2PQ For the Respondent MR A TUCKER (of Counsel) Instructed by: Solicitor's Office H M Customs & Excise Corporate Legal Services (Group) Manchester 5th Floor West Ralli Quays 3 Stanley Street Salford MR RECORDER BURKE QC The Appeal This is an appeal by Ms. Logan, the employee, against the Decision of the Employment Tribunal, sitting at Leeds and chaired by Mr. Simpson, sent to the parties with Extended Reasons on 13 th March 2000. By that decision the Tribunal dismissed Ms. Logan's claim that she had been constructively unfairly dismissed.[2]The Tribunal reached their conclusion, unusually, after having heard only the evidence of Ms. Logan and having considered a bundle of documents (which, we interpose, we have not seen). No evidence on behalf of the employer, the Commissioners of Customs and Excise, was heard because the Tribunal decided to dismiss Ms. Logan's claim after, at the close of Ms. Logan's case, the employers had submitted that there was no case for them to answer - which submission the Tribunal accepted.[3]Ms. Logan now appeals against that Decision. The Notice of Appeal which she originally lodged has been amended, with the permission of the EAT, by the addition of three additional grounds of appeal set out in a document compiled by the Leeds Disability Discrimination Act Service on Ms. Logan's behalf. Before us Ms. Logan was represented by Mr. Serr of counsel; and the employers were represented, as before the Tribunal, by Mr. Tucker of counsel; we are grateful to both of them for their careful submissions.[4]Mr. Tucker has helpfully classified the various grounds of appeal in the Notice of Appeal and additional grounds under four heads; we accept his classification in broad terms and propose to consider the arguments put before us under those four heads, namely :(1) Did the Tribunal err in law and act perversely in dismissing Ms. Logan's claim at the end of her case without calling on the employers to give evidence and thus give Ms. Logan the opportunity to cross examine any witnesses called, having regard to the general principles of law and fairness.(2) Did the Tribunal err in failing to consider the totality of the evidence.(3) Did the Tribunal err in failing to identify the factual matters which they decided could not constitute a final straw which might have entitled Ms. Logan to terminate her employment as and when she did.(4) Did the Tribunal err in law in deciding that incidents occurring some eighteen months before Ms. Logan's resignation could not be taken into account and accumulated with subsequent matters of complaint so as to bring the last straw principle into operation. However, a fifth area of argument was developed, namely whether the Tribunal erred in not making a finding as to the events of April 1997 which triggered the whole of the history which the Tribunal was investigating.[5]While it was anticipated, as a result of the Notice of Appeal, that Ms. Logan would be relying upon Article 6 of the European Convention of Human Rights as embodied in domestic law by the Human Rights Act 1998, Mr. Serr at the outset of the hearing before us abandoned any such reliance, on the twin bases that the power to hear and accept a submission of no case was not of itself in conflict with Article 6 and that the relevant provisions of the 1998 Act are not retrospective for present purposes. We need not, therefore, say any more about this aspect of Ms. Logan's Notice of Appeal. The Facts[6]Ms. Logan began employment in July 1994; her employment continued until she resigned with effect from 21 st May 1999. In April 1997 there was a meeting between Ms. Logan and an Acting Executive Officer, Miss Downs, who by the time of the hearing had become Mrs. Harrison. Ms. Logan complained that in that meeting Mrs. Harrison had verbally attacked and humiliated her; the employers denied that she had done so. The Tribunal did not make any finding as to what had in truth occurred but accepted that something had caused Ms. Logan sufficient distress to prompt her to instruct solicitors. Ms. Logan then presented a formal complaint under the employers' Grievance Procedure. This complaint was handled by a Mr. McGuire whose decision did not emerge until October 1997 and went against Ms. Logan.[7]The Tribunal concluded that Mr. McGuire had reached his decision and handled Ms. Logan's complaint unfairly, in breach of the employers' own procedures and in breach of the principles of natural justice. The handling of her complaint, the Tribunal found, at paragraph 11 of their reasons :
"Was not only a pretty raw deal but it amounted to a breach of the applicant's contract of employment. The applicant was contractually entitled to have her grievance dealt with and dealt with fairly; and she did not get that. We are satisfied that at that stage it was open to the applicant either to conclude that the respondent was indeed in breach of her contract of employment in circumstances in which she was entitled to resign or it was certainly open to the applicant ... to take up with Mr. McGuire the inadequacies of the procedures he had followed ..."
[8]However, Ms. Logan did not take either of those options in the remaining part of 1997 or in the next year. While she asserted that during that period insufficient attempts were made by the employers to relocate her (she being by this time on long-term sick leave) the Tribunal found, on the basis of the relevant documents and Ms. Logan's evidence in cross-examination, that the employers were not open to criticism in that respect.[9]In January and May 1999 Ms. Logan had two interviews with a manager, Mr. Ballance; she complained that he conducted those interviews in such a way as to constitute further breaches of contract on the employers' part and that either as a result of those breaches of contract or as a result of the whole course of the employers' treatment of her, the interviews being the final straw, she was justified in leaving. The Tribunal, without hearing from the employers but on the basis of the cross-examination of Ms. Logan and the documents, concluded that nothing which occurred during the interviews could be regarded as a breach of contract. They then considered whether what Mr. Ballance did or said during the interviews could properly be regarded as a "final straw" and, at paragraph 14, said :- "We are not satisfied even that the applicant has established that anything that Mr. Ballance said or did could properly be regarded as a final straw. But if we are wrong in that conclusion, the difficulty the applicant still has is the gap from November 1997 to May 1999. That is 18 months and although Lewis v. Motorworld makes it plain that an employee is entitled to heap together the straws so as to finally get the burden that breaks the camel's back, there has to be some proximity between the straws; there has to be proximity in time or in motive, but if there is neither proximity, then in our view Lewis v. Motorworld simply does not help the applicant's case." In paragraph 15 the Tribunal said :- "She did not terminate her contract for 18 months and in the view of the Tribunal, that delay is simply too long. By delaying as she did over the 18 month period she must be regarded as having waived the breach and having affirmed the contract; and nothing that happened subsequently, certainly nothing that happened in proximity to the resignation can be regarded as having resurrected that breach in the way that it is suggested in the authorities can happen."[10]For these reasons the Tribunal acceded to the employers' submission of no case and dismissed Ms. Logan's claim. Submission of No Case[11]The Tribunal, in paragraph 10 of their reasons, accepted that it was rare for the Tribunal to accede to a submission of no case; they said that, therefore, Mr. Tucker on behalf of the employers had "quite a high hurdle to climb". They asked themselves whether, if the employers' witnesses gave evidence, such evidence was likely to improve Ms. Logan's case - although they did not expressly answer that question - and reminded themselves that Mr. Tucker would have been entitled to call no evidence if the submission of no case was rejected. They then proceeded to assess the evidence they had thus far received and to reach the conclusions we have already set out.[12]In Oxford v. DHSS [1977] ICR 884 Phillips J. presiding over the EAT in a discrimination case, said, at p.887A-B :
"It further seems to us that, while the burden of proof lies upon the applicant, it would only be in exceptional or frivolous cases that it would be right for the tribunal to find at the end of the applicant's case that there was no case to answer and that it was not necessary to hear what the respondent had to say about it."
[13]In Ridley v. GEC [1978] 13 ITR 195 Phillips J. presiding over the EAT, said of the power of the Tribunal to accede to a submission of no case in that cases might be put forward which were so obviously hopeless that it would be a complete waste of time to call upon the employers to give evidence and thus prolong the proceedings for what might be a long time at considerable expense. In Coral Squash Club v. Matthews [1979] IRLR 390 in a judgment of the EAT in an unfair dismissal case Slynn J. said that power was clearly one which must be exercised with caution and only if the Tribunal was satisfied that the party on whom the onus lay had clearly failed in law or in fact to establish what he set out to establish.[14]In Care First Partnership v. Roffey and Others [2000] ICR 87 the employers appealed to the Court of Appeal against the rejection by the EAT of their appeal against the Tribunal's rejection of the employers' interlocutory application for the dismissal of the employee's claim on the grounds that there were no reasonable prospects of success. The employers relied upon a further decision of the EAT in Hackney LBC v. Usher [1999] ICR 705 in which Judge Peter Clark said, referring to the Tribunal's power under the then Rule 9(1) of Schedule 1 to the Employment Tribunals (Constitution and Procedure) Regulations 1993 to conduct the hearing in such manner as it considers appropriate for the clarification of the issues before it and generally to the just handling of the proceedings, at p.714 :- "(Rule 9.1) must in our judgment be read subject to the existing body of case law which holds that it is only in exceptional cases that it will be unnecessary to hear both sides before reaching a decision." The Court of Appeal held that those words did not apply to a case in which no evidence had been heard and that there was no power under the then Rules in the Tribunal simply to dismiss or strike out in a case without any hearing of the evidence; see per Aldous LJ at paragraphs 24 to 26. While the circumstances in which a submission of no case could be accepted were not primarily in issue, the Court of Appeal did not dissent from the principle expressed by the EAT in Hackney LBC v. Usher , which principle was itself very similar to that set out by the EAT in Oxford v. DHSS 20 years earlier.[15]Mr. Serr submitted, in the light of the authorities, that the present case was neither exceptional nor frivolous; on the contrary it was a case in which the employers had already been guilty, on the Tribunal's findings, of a serious breach of the contract of employment which, on Ms. Logan's account, had at least arguably been revived, during a period when Ms. Logan had not been working but was on long term sick leave, by a further incident or incidents which was or were capable of amounting to a last straw. In such circumstances a Tribunal ought to be careful to look at the whole history and particularly the history of the events alleged to constitute the last straw on the basis of the evidence presented by both sides. Mr. Serr accepted that if Ms. Logan had, in the course of cross-examination, expressly accepted that the treatment which she relied upon as constituting the last straw had been, entirely fair and appropriate, the Tribunal might have regarded the case as exceptional and of no merit; but that was not suggested by the Tribunal or by the employers; and in the absence of such a clear picture, the Tribunal should be regarded as having erred in law or exercised their power to accept a submission of no case where no reasonable Tribunal should have done so.[16]Mr. Tucker submitted that the Tribunal had correctly directed themselves that the power to accede to a submission of no case, where the burden of proof lay on the applicant as it does in a constructive dismissal case to establish that there had been a serious breach of the contract of employment in which she was able to rely, was one to be exercised with caution and that there was a high hurdle for the employers to climb. No special reason for not exercising the power the tribunal undoubtedly had was to be found in the fact that Ms. Logan was on long term sickness or in the fact, relied upon by Mr. Serr, that she was a litigant in person. It was for the Tribunal to assess the degree to which Ms. Logan had accepted the employers' case or undermined her own in the course of her evidence; and it was not possible to conclude that no reasonable Tribunal could have acted as the Tribunal did in this case.[17]The Tribunal do not record in their decision that Ms. Logan had by her evidence conceded that the treatment she received at the hands of Mr. Ballance was not such as to be capable of amounting to a last straw or was not unfair or inappropriate; and Mr. Tucker did not suggest that she had made any such concession. Although the Tribunal found that she had not established that anything done by Mr. Ballance did amount to a final straw (to which finding we will turn in the next section of this judgment) the reasons why they so found are not set out; and the Tribunal do not expressly base their finding on any concession on Ms. Logan's part. Clearly a judgment had to be made, in the light of the evidence, as to the nature and content of what had passed between Ms. Logan and Mr. Ballance. As was properly conceded by Mr. Tucker, what had passed between them did not have to constitute a further breach of contract if it was to amount to a last straw which, put together with the earlier serious breaches of contract, would have entitled Ms. Logan, in 1999 to treat her contract of employment as repudiated; accordingly the Tribunal's task in making an assessment of the conduct relied upon as amounting to the last straw was difficult and delicate. Such a case is very different from the type of constructive dismissal case which is occasionally seen in which it is perfectly clear at the end of the employee's evidence that there never was any repudiatory breach of contract at all - which may be regarded as a rare and exceptional case in which a submission of no case might succeed.[18]In these circumstances we conclude that, applying the general principles set out in the authorities to which we have referred, the circumstances were not so exceptional or clear cut as to justify the dismissal of Ms. Logan's claim after hearing her evidence alone and without the Tribunal having the opportunity of hearing such evidence, if any, as was called by the employers and the benefit of having that evidence tested by cross-examination; the decision to do so was one which a reasonable Tribunal properly directing itself should not have reached.[19]It is of course true that the employers might have called no evidence; but that is always the case where a submission of no case is made to the Tribunal; and of itself it is not, in our view, an adequate or legitimate reason for acceding to such a submission. Nor is it an adequate reason for acceding to such a submission that the employee's case may not be or is unlikely to be improved by evidence from the employers' side. Until the Tribunal have heard the whole of the evidence including any evidence called by the employers they cannot know what if any evidence the employers will adduce and what the effect of such evidence will be.[20]Accordingly for these reasons we conclude that the Tribunal erred in the circumstances of this case in proceeding as they did. The Totality of the Evidence[21]We did not understand Mr. Serr to make any submissions under this head which were separate from those addressed under the previous head. If the Tribunal had not accepted the submission of no case they would then have had to consider the totality of the evidence after the employers had had an opportunity to call and had called such evidence as they wished or, if they were sufficiently bold, had called no evidence at all. Even if no further evidence was called, the Tribunal would then have had to assess the case on the basis that the employers had had an opportunity to call evidence and had declined to do so. It would have been open to them to have drawn inferences, if they thought it right, against the employers. They might well not have done so; but the task would have been a different task from that which faced the Tribunal after only the employee had had an opportunity to give evidence. The Conduct of Mr. Ballance[22]We have already set out but will repeat the Tribunal's conclusion, at paragraph 14 of the extended reasons, that :
"We are not satisfied even that the applicant has established that anything that Mr. Ballance said or did could properly be regarded as a final straw."
Mr. Serr submitted that Mr. Ballance's handling of the interviews was a fundamental part of Ms. Logan's case; it was her case that Mr. Ballance's conduct amounted to a further fundamental breach of contract or, alternatively, that it amounted to a last straw. It was, therefore, essential for the Tribunal, whatever its conclusion as to Mr. Ballance's conduct, to explain why they had reached that conclusion and not merely to state the conclusion. Essentially, Mr. Serr's argument was that the conclusion of the Tribunal which we have set out did not comply with the familiar principles set out in Meek v. City of Birmingham DC [1987] IRLR 250, namely, as set out in the judgment of Bingham LJ at p.251, that :
"The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal (the Court of Appeal) to see whether any question of law arises ..."
[23]Mr. Tucker acknowledged that the Tribunal did not, in the paragraph in which the relevant conclusion was set out, explain their reasons for that conclusion, but he submitted that there was sufficient explanation of their reasons to be found in paragraphs 4 to 7 of the reasons in which the Tribunal set out the history from April 1997 through to the interviews with Mr. Ballance and in paragraph 13 in which, having identified the two interviews and the case which Ms. Logan was putting forward in respect of them, the Tribunal concluded that the evidence of Ms. Logan had come out in a manner which was inconsistent with, and manifestly less favourable to Ms. Logan than her Originating Application (which, according to the Chairman's Notes, formed a major part of her evidence-in-chief). Indeed, it is clear from the Notes of Evidence that Ms. Logan accepted her Originating Application to be inaccurate, at least in relation to the first interview.[24]Although Ms. Logan's evidence as to the interviews was plainly damaged by cross-examination, the difficulty which Mr. Tucker faces is that the Tribunal did not in either paragraph 13 or paragraph 14 set out even in summary form what, at the end of cross-examination, Ms. Logan's evidence on this issue amounted to or explain why they concluded as they did that Mr. Ballance had said or done nothing which could constitute a "final straw". Nor is the missing material to be derived from any earlier paragraphs. There may be cases in which the Notes of Evidence reveal the evidence on an issue to have been so clear and one sided that that issue could only be resolved one way; in such cases it might be possible - and we express no concluded view one way or the other - to draw on the Notes of Evidence to fill in a gap in the Tribunal's decision; but we are in no doubt that this was not such a case. The Notes in this case show that the relevant evidence was given substantially, by way of answers to questions based on documents which we have not seen; it is not possible, in our judgment, from the Notes of Evidence to derive a clear picture as to why the Tribunal reached the conclusion which it reached on this issue. We do not see anywhere in the decision itself a sufficient setting out by the Tribunal of what, they concluded on the evidence, had transpired between Ms. Logan and Mr. Ballance or a sufficient explanation of the Tribunal's conclusion so as to show the parties why, on this issue, they won or lost. We conclude, therefore, that the Tribunal erred in law in failing to provide an account of the facts and of their reasoning sufficient to comply with the requirements of Meek to which we have referred. Time and the Last Straw[25]We have set out, in paragraph 9 of this judgment, the material part of paragraphs 14 and 15 of the Tribunal's reasons in which they set out their conclusion that, by delaying over an eighteen month period between the repudiatory conduct of the employers in relation to the grievance procedure and the events relied upon as constituting the last straw, Ms. Logan "must be regarded" as having waived that repudiatory conduct with the effect that nothing which happened in the course of the Ballance interviews could be regarded as having resurrected that breach. The Tribunal reached that conclusion on the basis of a requirement that there had to be proximity in time or nature between the original breach and the subsequent conduct relied upon and that after a gap of eighteen months there could not be proximity of time.[26]Mr. Serr's submission, on this part of the appeal, was - to put it in summary form - that the Tribunal's reasoning was based on an unjustified and erroneous gloss on the well- established last straw doctrine whereby an employee can rely on a series of actions on the part of his employer which cumulatively amount to a repudiatory breach of the implied obligations of trust and confidence in circumstances in which the last action of the employer which leads to the employee's leaving (the last straw) need not be in itself a repudiatory breach of contract or a breach at all. There is, it was submitted, no requirement of proximity in time or nature between any previous act of the employer relied upon by the employee and the conduct alleged to have been the last straw; all must be considered cumulatively and weighed by the Tribunal in reaching a decision whether the conduct, taken as a whole, amounts to repudiatory conduct; the fact that an earlier repudiatory breach on the employer's part has been affirmed does not lead to the conclusion that after a period of time it could not be considered together with subsequent conduct of the employer, as part of a course of conduct which when viewed as a whole entitled the employee to leave.[27]Mr. Serr relied upon Lewis v. Motorworld Garages Ltd. [1985] ICR 157, a decision of the Court of Appeal, and two decision of the EAT, Wadham Stringer Commercials Ltd/ v. Brown [1983] IRLR 46 and Hammill v. J. Strong & Co. Ltd. (Unreported 2001) in support of these propositions.[28]Mr. Tucker did not substantially disagree with these propositions; he submitted(i) that the Tribunal were entitled to and, indeed, bound to consider, as a matter of fact, whether the last straw relied upon in this case, namely the conduct of the Ballance interviews, was sufficient to amount to conduct sufficient to revive an earlier waived breach(ii) that, in doing so, the Tribunal were entitled to consider both the time which had passed between the earlier conduct and the subsequent conduct and the nature of such conduct and(iii) that in their decision in this case the Tribunal were, in paragraphs 14 and 15, expressing a purely factual conclusion i.e. that there was an insufficient connection between the earlier and subsequent conduct for them to be regarded cumulatively, as amounting to a repudiatory course of conduct. It was, submitted, Mr. Tucker, open to the Tribunal to reach the factual conclusion that an 18 month gap between the earlier and subsequent conduct was simply too long.[29]In Lewis v. Motorworld , Glidewell LJ summarized the relevant principles as follows :
"(1) In order to prove that he has suffered constructive dismissal, an employee who leaves his employment must prove that he did so as the result of a breach of contract by his employer, which shows that the employer no longer intends to be bound by an essential term of the contract; see Western Excavating (ECC) Ltd. v. Sharp (1978 ICR 221 ). (2) However there are usually implied in a contract of employment mutual rights and obligations of trust and confidence. A breach of this implied term may justify the employee in leaving and claiming he has been constructively dismissed; see Post Office v. Roberts (1980) IRLR 347 and Woods v. W.M. Car Services (Peterborough) Ltd. (1981) ICR 666, 670 per Brown-Wilkinson J. (3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (See Woods v. W.M. Car Services (Peterborough) Ltd. (1981 ICR 666). (4) The decision whether there has been a breach of contract by the employer so as to constitute constructive dismissal of the employee is one of mixed law and fact for the industrial tribunal. An appellate court may only overrule that decision if the industrial tribunal have misdirected themselves as to the relevant law or have made a finding of fact for which there is no supporting evidence on which no reasonable tribunal could make ..."
At p.170A-C Glidewell LJ added to these principles, as follows :
"This case raises another issue of principle which, so far as I can ascertain has not yet been considered by this court. If the employer is in breach of an express term of a contract of employment, of such seriousness that the employee would be justified on leaving and claiming constructive dismissal, but the employee does not leave and accepts the altered terms of employment; and if subsequently a series of actions by the employer might contribute together a breach of the implied obligation of trust and confidence, is the employee then entitled to treat the original action by the employer which was a breach of the express terms of the contract as a part - the start - of the series of actions which, taken together with the employer's other actions, might cumulatively amount to a breach of the implied terms? In my judgment the answer to this question is clearly "yes"."
[30]The employee in Lewis v. Motorworld had been demoted in November 1981 in breach of the express terms of his contract of employment; he affirmed this fundamental breach of contract. Several months later the employers began to make unjustified complaints about the employee, culminating in a final warning on 2 nd August 1982. The Tribunal concluded that the earlier matters should not be taken into account and did not look at the cumulative effect of the employers' conduct as a whole. Applying the principles which we have quoted, the Court of Appeal allowed the employee's appeal and remitted the case to a new Tribunal.[31]In Hamill v. J. Strong and Co. Ltd . the employers failed, in April 1998, properly to investigate or take action upon the employee's complaints that he had been bullied by other employees. In August 1998, when the employee was working at a new site, the atmosphere at work again became difficult. In February 1999 the employees offensively and in a hostile manner and, according to the employee, unjustifiably criticised his work; and his complaint to his foreman was rudely rejected. The Tribunal looked at the whole history cumulatively, found that the February 1999 incident was the last straw and that the employers' conduct as a whole justified the employee's resignation. The employers appealed, relying inter alia on the contention, supported by a minority of the Tribunal, that the April 1998 conduct had been waived. The EAT, in addressing this part of the employers' argument, said :- "13. We have been concerned to consider what is the relationship between the principle that there can be a series of incident, none of which in themselves constitute serious breaches, but which combined together amount to a breach of the implied term of trust and confidence such as to amount to constructive dismissal on the one hand and the principle of waiver, on the other. The very fact of there being a series implies that an employee is carrying on in his work notwithstanding the occurrence of these events. This, of course, is normally an example of waiver. Also it very often happens that the final incident is in itself insubstantial, no more than a piece of straw, but sufficient to provide the continuity in the series to qualify the whole series of incidents as a breach. 14 It seems to us that a Tribunal confronted with this sort of situation must look and see if the final incident is sufficient of a trigger to revive the earlier ones. This will, it seems to us, involve looking at the quality of the incidents themselves, the length of time both overall and between the incidents, and it will also involve looking at any balancing factors which may have, at any point, been taken to constitute a waiver of earlier breaches."[32]We were provided with arguments as to similarities and as to differences between the facts of Lewis v. Motorworld and Hamill v. Strong ; we must remind ourselves, however, of the fourth of the principles set out in the passage from the judgment of Glidewell LJ in Lewis v. Motorworld which we have quoted above; and the factual details of the authorities are not important in that context. What is important, in our judgment, is that neither decision is authority for the proposition that there has to be any particular degree of or any proximity in time or nature between the earlier conduct and the later conduct which are relied upon by the employee as together constituting a course of conduct which cumulatively amounted to a repudiatory breach of contract. It is for the Tribunal to consider in each case whether the whole of the conduct relied upon, viewed cumulatively, does amount to such repudiatory conduct. The earlier conduct, if it constituted a breach of contract, will almost always in such cases have been affirmed or waived, as the EAT pointed out in Hamill v. Strong ; but neither that fact nor the passage of time thereafter necessarily precludes the Tribunal from answering the question set out in the third of Glidewell LJ's principles in favour of the employee. However, the passage of time between the earlier and the subsequent conduct relied upon may of course be a relevant factor in the Tribunal's assessment of the correct factual answer to that question. Whether a difference in nature between the earlier and the subsequent conduct could be a material factor we rather doubt - but since the Tribunal in this case did not rely upon any difference in the nature of the conduct it is not necessary to consider it further.[33]In our judgment, reading their decision as a whole, the Tribunal in this case did not simply consider the time between the earlier and subsequent conduct as a factor in their overall judgment; they appear to have reached their decision on the basis that, as a matter of law or principle, there had to be proximity in time and that, applying that principle, the eighteen months gap between the employers' conduct of Ms. Logan's grievance and the Ballance interviews, of itself required them to conclude that the last straw doctrine did not apply. It is important that they said, in paragraph 15 :
"... that delay is simply too long. By delaying as she did over the 18 month period she must be regarded as having waived the breach and having affirmed the contract and nothing that happened subsequently ... can be regarded as having resurrected that breach."
The use of the words "must" and "can" in this passage demonstrates in our judgment that the Tribunal arrived at their decision by the application of a principle of law which does not exist and failed to ask themselves the correct question, namely looking at the acts complained of cumulatively did they amount to a repudiatory breach of the implied term of trust and confidence.[34]Accordingly we conclude that, in this respect too, the Tribunal erred. The Events of April 1997[35]We find no difficulty in understanding why the Tribunal did not make a finding as to what had taken place between Ms. Logan and Mrs. Harrison in April 1997 - which events were the starting point for what followed. Firstly they were no doubt reluctant to do so having heard only Ms. Logan's version; and secondly it was unnecessary for them to do so in the light of their conclusion that the last straw doctrine did not, in any event, apply.[36]In these circumstances, we do not regard any criticism of the Tribunal's not making any such finding as made out; and because this case will have to be remitted we are reluctant to say any more than that the Tribunal which hears this case upon remission will no doubt take care to apply the principles set out by Glidewell LJ in Lewis v. Motorworld and in particular to direct themselves whether the conduct complained of as a whole, taken cumulatively, amounted to a repudiatory breach of contract. Conclusion[37]The parties agreed that if the appeal succeeded the case would have to be remitted to a fresh Tribunal; for the reasons we have set out the appeal is allowed and the case must be remitted to a fresh Tribunal.