MARSHALL SPECIALIST VEHICLES LIMITED v MRS S A OSBORNE [2003] UKEAT 0101_02_2904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0101_02_2904Case No Appeal No. EAT/0101/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MARSHALL SPECIALIST VEHICLES LIMITEDAPPELLANTMRS S A OSBORNERESPONDENT
Before
Mr Justice BurtonDate 30 April 2003
[1]APPEARANCES For the Appellant MR THOMAS LINDEN (of Counsel) Instructed by: Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ For the Respondent MR DANIEL BARNETT (of Counsel) Instructed by: A P Partnership Borough House Newark Road Peterborough PE1 5YJ THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of the appeal by the Respondent, Marshall Specialist Vehicles Ltd against the decision of the Employment Tribunal at Bury St Edmunds after a hearing on 9 and 10 August 2001 and 1 and 2 November 2001, promulgated on 30 November 2001, in favour of the Applicant Mrs Osborne.[2]The unanimous decision of the Tribunal was that the Applicant was constructively unfairly dismissed by the Respondent, and the Tribunal awarded compensation in the sum of £460 by way of basic award and £51,700 by way of compensatory award; and made no separate award in respect of a parallel contract claim.[3]The appeal, which has been ably argued on both sides, has been brought by Mr Thomas Linden of Counsel on behalf of the Respondent with a view primarily, as set out in his Skeleton Argument, to securing the quashing of the decision of the Employment Tribunal and its remission for re-hearing. He has preserved in the course of argument an alternative argument that the appeal should be allowed and that there be no remission to the Employment Tribunal.[4]Mr Daniel Barnett of Counsel, on behalf of the Applicant, has loyally sought to defend both the conclusion and the reasoning of the Employment Tribunal, and has sought to avoid a remission, but plainly sought to argue, if he failed, that the matter should be remitted rather than that his client's application should be irrevocably dismissed.[5]Mrs Osborne, plainly a lady of considerable ability, was, first, Financial Controller and then Finance Director of the Respondent company. She was employed for a period of just over two years. She resigned on 20 June 2000, by a letter to which we shall make reference, giving notice. She worked out her notice until 8 August 2000, when she wrote a letter to the Respondents saying that she had tried to soldier on but had been unable to do so, and enclosed a sick note. She had what was described by the Employment Tribunal in its Decision as, in layman's terms, a nervous breakdown.[6]The case that she brought before the Employment Tribunal is described in paragraph 1 of the Decision as follows; 1 "Her case is that her breakdown and resignation [or one should rather say resignation and breakdown] were precipitated by an excessive burden of overwork imposed upon her by [the Respondent] in breach of [what the Tribunal described as] a fundamental term of her contract of employment and that, accordingly, she was constructively – and unfairly – dismissed…."[7]It is common ground that the case was put before the Tribunal by Mr Hughes, a Consultant acting then on behalf of the Applicant, on the basis of a case that the employers were in breach of the fundamental term, as it is often called, of mutual trust and confidence. That is, as most recently described in the House of Lords in Malik v Bank Of Credit and Commerce International SA [1998] AC 20 at page 45 in Lord Steyn's speech, referring to a number of previous well-known decisions such as Woods vWM Car Services (Peterborough) Ltd [1981] ICR 666 at 670 per Browne-Wilkinson J (as he then was), an obligation that the employer should not:
"without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee."
[8]It appears that it was the Tribunal itself, in the course of closing submissions, or at any rate during the hearing, which began to articulate on behalf of the Applicant a case that had not been put forward in legal terms by Mr Hughes, but was no doubt gratefully adopted by him; namely that the constructive dismissal could be otherwise explained, further or in the alternative, by a fundamental breach (as it would have to be) of the term which has been recently in the course of argument before us called 'the health and safety term'.[9]We shall say more about his in due course, but suffice it to say, as is apparent from the brief description which we have set out, that, whereas it is well established that any breach of the mutual trust and confidence term is likely to be repudiatory, in order for there to be repudiation of a contract of employment by virtue of the health and safety term, that breach would need to be a repudiatory breach; and of course in either case a repudiatory breach by the employer would have to be accepted by the employee in order to amount to constructive dismissal.[10]The precise work done by Mrs Osborne is unclear to us. She was plainly working very hard and long hours, as it seems were her fellow directors and employees, because it seems that at the material time the Respondent company was facing considerable difficulties. It is common ground that she carried out those duties with apparent enthusiasm and devotion and indeed she was one rather to take on extra work than to decline it, of her own motion. Indeed, it appears she is described by the Tribunal as having carried on duties which would normally fall within the remit of a Human Resources Director, in addition to what they describe as conventional duties as Finance Director, but was, as the Tribunal found, resistant to being given assistance by the Group Human Relations Director, so that, in that regard, on the one hand it can be said that there is evidence of her enthusiasm and appetite for work and on the other the reluctance, if not downright refusal, to receive assistance from her employers when it was offered.[11]But so far as the precise detail of her work is concerned, and in particular the degree and extent of alleged overwork, the Tribunal, perhaps because of the route down which it chose to go, by reference to what we have referred as the health and safety term, expressly eschewed any detailed consideration.[12]In paragraph 3 (d) of the Decision the Tribunal said this: 3 (d) "We have heard much evidence about the detail of the workload for which she was responsible…but do not find it necessary to make detailed findings of fact about the precise content and extent of those duties. Suffice it to say that Mr Marshall, regarding her as he did as an able, enthusiastic and willing colleague, invited her to undertake duties… [and then those duties are described] " The Tribunal continues further in the paragraph:
"The Applicant never expressed any reservations about undertaking these duties, and we are satisfied that, in the main, she did so enthusiastically – even to the point of vigorously resisting a suggestion made by Mr Dastur [who was her superior] that [the Respondent] should rely, as did the other two Group companies, on an HR function established at Group level for the service of all three companies. In the result, during the first six months of 2000 the applicant worked exceedingly long hours without complaint…"
[13]Her resignation arose against the following background. Mrs Osborne sent an email to Mr Marshall at 9.15 a.m. on 6 June which reads as follows:
"The reforecast is due to be done for the period starting 1 July to December. Last year this process took at least three months of my time without any help from any other resource except for the model for which I bought in external resource to assist. Last year the deadline date was 26 th July – I do not think we will be exempt as group needs to know foreign exchange cash flow, working capital requirements and corporation tax payments that have to be estimated and paid based on best estimates. I do not believe the finance department should create these numbers. Any reforecast and budget should be driven by the business, starting with the sales & marketing plan supported by the overheads required to deliver that plan. These overheads should be provided by the managers responsible for those department costs. If we want any hope of trying to control overhead costs the management of the business must buy in to the forecast and commit to controlling costs commensurate with the level of business. Following the reforecast/budget each department should have a review and should be prepared to justify expenditure and sales targets together with the rationale behind how those targets will be delivered. This should include an assessment of the risks and opportunities inherent within the forecast they have presented. Unless we create buy in to this process then this will not happen. This is a major culture change to the company that I believe plays a crucial part to its future survival. Do you not agree that the fact that the budget and forecast was divorced from the overall business and without adequate buy in it probably a major reason why [the Respondent] has continually failed to achieve its budget target for so many years? If we are to have a meaningful strategic plan for next year then the whole management team must buy into this process. It must start now and will require training and resources allocated to ensure that departments fully understand the demands that are being made of them. Given the workload listed in the attached I have little time to give consideration to how we achieve the above. Therefore dedicated resource is required to fulfil this reforecast/budget culture change. Additional resource is also required to enable me to delegate some of the numerous other activities on the list. I need an urgent response to this as we need to start this process in order to have quality data in the required time period and avoid further criticism from Group. I also need to be able to implement the other initiatives currently proposed."
[14]Attached to that email was a document which is headed up " List of projects to manage and resource. Reforecast 2000/2001 Budget. " 22 matters are set out as part of the list of projects to manage and resource, in relation to which, as can be seen from the email, the Applicant was suggesting a culture change approach.[15]Against each of those 22 items there were 'Man Days' estimated that were required. The Man Days totalled 859 days. It appears apparent to us that that must, because of course it exceeds the number of days in a year, and it is on the face of it relating to a year's budget, refer to Man Days to be devoted not simply by the Applicant but by members of her department. The note at the bottom says "This is with reduced staff in finance and major training is required due to change of workload and responsibilities." Reference is then made to three of the members of staff.[16]The mathematical calculation of Man Days required is then compared with the total available days, and an excess workload is then calculated of 85%, indicating that it is quite clear, on the Applicant's case, that with existing staff, without that culture change, the responsibilities being required from her and her department cannot be complied with.[17]The response by Mr Marshall came the following day by email and it read as follows:
"Shirley We need to knock our heads together. I think that we should replace our next management meeting with a half day session (including a free lunch!) to discuss how we are going to achieve this. In the meantime. I will ask Gay to get a hold of Aerospace pro-formas that are used by each department for budgeting. They are logical spreadsheets designed to go into a central budgeting spreadsheet."
It would appear that that is, at any rate, the beginnings of a constructive response to Mrs Osborne's suggestion that the numbers, as it was put, should be worked out by the individual departments, rather than by the Finance Department itself. "If you are in agreement, let me know."[18]The response from Mrs Osborne is first of all at 11.45 a.m. on 7 June, a constructive response to the detail about the spreadsheets, indicating what was going to be needed in relation to the spreadsheet and concluding:
"Do we firstly agree that we are going to push down responsibility for the costs – if so then this is where resource needs to be given in training and educating as well as re-defining the report layouts to take into account of the changes mentioned above."
[19]A further response, sent some three hours later by the Applicant, says:
"It's not only just budget – did you read the other list?" and then the response by Mr Marshall at 7.10 a.m. in the morning on the following day, 8 June, is: "
Yes I did! I have also spoken to Bill."[20]The next management meeting, which was referred to by Mr Marshall in his first response email of 7 June, was on 16 June which was the following Friday, 6 June being a Tuesday; and thus the responses which we have read followed on the Wednesday and Thursday of that week.[21]The Tribunal made the following findings in relation to the meeting of 16 June. 3 (i) "The next MSV "Management meeting" was held on the afternoon of Friday 16 June on the premises in Staffordshire of another company with which MSV had joint venture arrangements. [and then there was set out who attended – a number of different people]. In fact, the press of other business at that meeting prevented any discussion whatsoever of the budget information and overwork issues which the Applicant had raised with Mr Marshall and at the end of the meeting he left without seeking to conclude any fresh arrangements for that purpose."[22]Mr Linden has submitted that that is, to put it as its lowest, a somewhat surprising summary of the evidence that they had heard, if that is what it was, because the evidence (and this is common ground) which was given by the Applicant, Mrs Osborne, is that there were – and this is referred to in paragraph 30 of her witness statement – 15 minutes of discussion at the end of the management meeting on 16 June. When the case for Mr Marshall (which we shall describe in a moment) was put to her, she said in oral evidence that she could not remember whether there had been any agreement to discuss the matter further at a future occasion, but did not go so far as to make a positive case that there was no such discussion or agreement. So that, albeit that there was, on her case, limited discussion, at least there was some, so that it would not be right to say that there was no discussion at all.[23]Mr Marshall's evidence that he gave before the Tribunal is set out in his witness statement at paragraph 22. It read as follows: 22 "Having arranged to meet for half a day on 16 June the management meeting overran and we did not have enough time to discuss afterwards the various issues which Shirley had raised in her email. Added to this, we were both tired and so Shirley and I agreed that we would agree a date to site down and discuss matters. As a matter of fact, I also spent a significant amount of time with Shirley that day, 16 June, on another topic."[24]As we have indicated, there was oral examination in relation to that, and that case, which was repeated by Mr Marshall in oral evidence, was not positively challenged by or on behalf of the Applicant, who simply was unable to remember whether there had been any such agreement as Mr Marshall described.[25]That was Friday 16 June. There is, at any rate in the findings of the Tribunal and certainly in the witness statements which we have seen, no mention of what occurred on Monday 19 June, although we have been informed by Mr Barnett, on the Applicant's instructions, before us, that Mr Marshall was, so far as she recollects, not in the office on the Monday. But on Tuesday 20 June she resigned having, it appears, according to paragraph 3 (j) of the Tribunal's decision, over the weekend (17 th and 18 th ) considered her position, and concluded that "nothing was to be done to take account of her representations".[26]The letter that she wrote on 20 June, being her resignation letter, read as follows:
"Dear Robert, As you are aware I have been with MSV for 18 months during which time there have been ever increasing mountains of difficulties to climb. I have worked as the Finance Director since last July but now feel that this position is becoming untenable. This is because the level of workload I have acquired has meant my lack of involvement and time in assessing strategic financial options, which does not permit me to do this job to my satisfaction. This is illustrated by your comment made on Friday June 2, 2000 at the management review meeting, in front of Peter Burton, "we have many complicated financial deals coming up so we have better make sure we get this MBA person in to review them."
Since this date I have demonstrated the workload I currently have but from the lack of response it is clear to me that the company is not willing to enable me to fulfil the position of Finance Director. Given the current financial state of the business and the lack of investment that the company has received in the past and continues to receive – 'we'll just leave things as they are but make it better' suggests that the group sees that there is little chance of any future prospects. If a large order like Cogent were to be received, then given the current level of investment, this I believe would be difficult to fulfil. Due to the above reasons, I feel that it is time that I further my career outside of MSV and therefore I am submitting my 6 month's notice of resignation which will conclude on 15 December [2000]."[27]Mr Marshall responded by letter dated 22 June 2000, which letter reads, in material part, as follows:
"…we have a great deal of work to do to regain our basic management systems. Your work on Part Numbering and material control, in conjunction with my own work on Centralised Planning and job control are crucial to our long term success. We are struggling to regain control of our systems in parallel with the effort to give our key production staff the basic wherewithal to get performance from our work force. While this goes on, there is fire-fighting necessary to get produce out of the door and strategic issues are taking a back seat."
Then he sets out what he believed they had achieved over the previous two months, and that the next two months were critical to their future, and he set out their priorities. He then continued:
"As discussed, I would like you to work out your notice and we will review the situation at the end of August. If you still feel that you have not got a future with the company at this stage, we will "go public" on your notice and I will start the process of recruiting a replacement or of amalgamation with Aerospace. In the meantime, I would be grateful if you could keep your resignation a secret. Your work to control the materials and Buying functions and your effort to involve previously untrained managers in the budgeting process have been admirable and, in the circumstances, I make no apology for using your excellent management skills to best advantage. Though I realise that this involves giving your Directorial duties a back seat. I am hoping that the next two months will see resolution of many of the issues that you are struggling with and a significant up-turn in our financial performance as a direct result. If we are successful in accomplishing the immediate aims, I hope that I can sway you to change your mind at the end of August."
[28]By email of 27 June 2000, five days later, Mrs Osborne responded:
"Thank you for your response to my resignation letter, however, following a conversation yesterday with the Chairman I believe that you are not convinced of my intention. I am giving notice and do not see the advantage of waiting until August before deciding the transition from either replacing me or transferring my duties over to Aerospace. You have also confirmed in your letter, which is also one of the reasons for my resignation, that I am not able to fulfil my directorial duties because of the many operational problems and lack of resource."
And then there was a further response which we do not need to read from Mr Marshall.[29]In fact, it appears that the Applicant, when she left in August, as we have indicated, did have a serious problem, which is described in an unchallenged report from a Dr Long, which was put in evidence before the Tribunal. In that report, dated 29 January 2001, he estimated her condition as "fair to good" indicating that resolution of the issues surrounding her departure from the Applicant's employer was important to her psychological recovery and that such a resolution would be necessary before she could move on. It is thus clear that at any rate by August 2000 she had an unchallenged medical problem.[30]The Tribunal made clear findings so far as the lack of knowledge of the Respondent of that condition is concerned. In paragraph 3 (g) of the Tribunal's Decision it records the following: 3 (g) "On 17 May [2000] the Applicant had consulted her GP whose report in evidence includes the statement that at that date "the effect of her work stress was clearly having a very significant impact on her life and her health" such that her GP had then expressed the view that if some solution to the work pressures was not possible the Applicant should seriously consider leaving her job for the sake of her health. Mr Marshall was not at anytime made aware of this." And then in paragraph 10 of the Decision it was recorded that Mr Marshall was not aware that the Applicant's job was getting her down.[31]The only evidence that was given in relation to what could have made the employer aware of this position fell into two parts. First, and more particularly, what is set out in paragraph 3 (f) of the Tribunal's decision. There was evidence of an occasion in mid-May 2000 when, during a discussion between the Applicant and her colleague on the Board of equal seniority, Mr Knott, the Production Director, in Mr Knott's office, she indicated that she could not seem to cope. It appears from his evidence that he also said to her that he could not cope and she broke into tears during that discussion.[32]Neither Mr Marshall, nor indeed anyone else, was present at that discussion between Mr Knott and the Applicant and Mr Knott, it appears, as recorded by the Tribunal, commiserated with the Applicant, indicating that sometimes he felt the same way; indeed it is apparent that he was saying that he felt the same way at that time, but observing that they had all to work through what were very difficult times.[33]The Tribunal records that:
"Mr Marshall, although not present in Mr Knott's room, happened to see the Applicant, obviously red-faced and upset, through a window in the room and as soon as the Applicant had left enquired of [Mr Knott] about the apparent problem"
. It is common ground that "Mr Knott made some observation to the general effect that he thought that all would be well" and indeed reported back subsequently to the Applicant that he had so told Mr Marshall. Mr Marshall took no further action in the matter.[34]The other less particular evidence that was given and found by the Tribunal in paragraph 3 (f) of its decision is as follows: 3 (f) "Mr Dastur has stated in evidence that during his dealings with the Applicant he had seen her in tears "on two or three occasions."" - those occasions Mr Barnett no doubt tells us correctly, although unparticularised in date, must have post-dated November 1999 - "in addition to an occasion in early times when she was resisting his assertion that she ought not to be appointed Finance Director for MSV without, in effect, competing with two other Applicants for that post on a shortlist of three. He expressed the general view that "when Shirley doesn't get her way or gets wound up the waterworks come on" and indicated that he took her tears as an expression of frustration."[35]Only those two matters are in any way referred to by the Tribunal as indicative of anything which could fall within the discussion under the head of the health and safety term, apart of course from the email of 6 June itself which we have quoted.[36]We turn to the Tribunal's conclusions. It is apparent from what we said earlier that the health and safety term, which was in effect the Tribunal's own vehicle, was at the major forefront of their thinking and their conclusions.[37]In paragraph 8 the Tribunal recites as follows: 8 "Mr Hughes puts the Applicant's case on the basis that in acting – or, more accurately, failing to act – as [it] did [the Respondent put itself] in breach of the now well established implied term in every contract that an employer will not:
"without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee."
For the reasons given below we are satisfied that [the Respondent was] indeed in breach of that implied term by the time the Applicant tendered her resignation from their employ. However, we go further and are more specific in implying into the Applicant's contract of employment with [the Respondent] by way of qualification of the express terms quoted in paragraph 5 above [which are the terms in the Applicant's contract of employment relating to her job role and hours] the following further term:
"The Company will take such action as (having regard to the availability of its human and financial resources) may be reasonably practicable in the particular circumstances prevailing at the material time to avoid either imposing workload upon you or acquiescing in your assumption or workload which it is reasonably foreseeable may cause you physical or mental injury."
It is apparent that that is a term which was formulated by the Tribunal itself.[38]We turn then to consideration of that term, and of the health and safety question in general. Mr Linden has directed, at any rate in his Skeleton Argument, considerable fire at that term, which he calls the "new implied term", and has drawn our attention to the various authorities in the law of contract as to how implied terms can be said to be incorporated into contracts.[39]Mr Barnett immediately made it clear, by intervention indeed in early course in the argument but also in his Skeleton Argument, that he did not seek to say that there was any special implied term incorporated into this contract. In those circumstances, the argument quickly reverted to an analysis of the well-established implied term to which we will come, rather than to any justification of the Employment Tribunal's own implied term.[40]Suffice it to say that we consider it regrettable that it should have been considered appropriate for the Tribunal to manufacture its own term. That is not to say that a Tribunal is not entirely free to apply its own understanding of the law, irrespective of any submissions that may be made before it; it is always open to any judge to decide the case, particularly where the law is concerned, on an approach which has originated from the bench, particularly where, as would appear to be the case, it was understandably adopted by the advocate whose side the argument favoured. But it appears to us to be undesirable to put forward and seek to incorporate, or to say there is incorporation of, these kind of cumbersome implied terms. Of course there may be some special kind of contract, into which special implied terms may in appropriate circumstances be, on the usual basis, incorporated. But this term is a wholly cumbersome animal and Mr Barnett's case is that it is incorporated in all contracts of employment. That was what he submitted in his Skeleton Argument, and it soon became clear from his oral intervention that in fact he recognised that, as his case relies on a health and safety term which is indeed incorporated in all contracts of employment, he was unable to support the precise term that is formulated on his client's behalf in this Decision. It is not even clear what precisely it means, but as he himself accepted, it could not be right to say that there is in every contract of employment incorporated an obligation on a company to take reasonable steps to avoid acquiescing in an assumption of workload by an employee.[41]What was being done here by the Tribunal was an agglomeration into an alleged term of what its conclusions were going to be on whether there had been a breach of that term; and it is far simpler to stick to the ordinary law, namely that there is implied into all contracts of employment a term, as indeed there is a duty in tort at common law, that the employer should take reasonable care for the safety of their employees. That is the starting point. That term then needs to be analysed, and of course, just as in tort, the precise nature of the duty in the particular circumstances will need to be considered: the question of foreseeability of the harm; the nature and extent of the breach; and the question of causation arising out of any breach established. But what the Tribunal did here was to roll up into an alleged implied term issues which could and should have been considered separately.[42]We are entirely persuaded by Mr Barnett that, even though we are in those circumstances uncomfortable and unhappy with the implied term that is there set out by the Tribunal, we should nevertheless approach the Tribunal's conclusion as if it had simply set out the normal and well-established term.[43]The difficulty, however, is that, because of the way the Tribunal approached it, it did not consider separately the nature of the duty, the question of breach, the question of foreseeability and the question of causation. In particular, it did not consider the very important distinction which we referred to at the beginning of this judgment, namely that if there be a breach of the term established causative of foreseeable loss, it must be, in order to justify a case of constructive dismissal, a fundamental breach.[44]The Tribunal has certainly ostensibly reached the conclusion that there were fundamental breaches, or was a fundamental breach, by the employer, but it did so without any of the necessary linking or separate consideration of the individual units which go to make up its conclusion.[45]The fundamental requirement for a breach, both of the implied term as to trust and confidence and the health and safety implied term, is that there must be identified some conduct by the employer which, in the circumstances, is repudiatory conduct, or which creates or amounts to a fundamental breach of the health and safety term or a breach, unjustified by proper and reasonable cause, of the term as to trust and confidence.[46]Of course, it is necessary to look subjectively at the effect on the Respondent, simply in order to be able to establish the harm that foreseeably or otherwise is said to have been caused. But in order to amount to a dismissal there must be conduct by the employer which must be identified and castigated.[47]Of course, if there be deliberate conduct, knowing of the consequences, then that conclusion will be easily reached. If, however, it is not that case (and that was not suggested to be the case here) then the question will arise as to whether there was conduct which destroyed the relationship of trust and confidence on the one hand, or which amounted to a breach of the health and safety term on the other, because either the employer failed to take steps which he should have taken or took steps which he ought reasonably not to have taken, which led, in either case, foreseeably, to the harm in question, and which conduct amounted to a repudiatory breach of the contract of employment.[48]It must not be lost sight of that the authorities in this area, both those to which the Tribunal referred and those to which it did not, have largely if not wholly been in the area of claiming damages for stress. For the purposes of claiming damages for stress, it is sufficient to establish the breach of the term and the causation and thus the loss which is assessable in damages. Where the breach of that term is said to justify a case of constructive dismissal , then a fundamental breach must be established, and repudiatory conduct by the employer and no question of sounding in damages arises in the Employment Tribunal, because the Employment Tribunal is considering, at any rate so far as the issue before us is concerned, the question of unfair dismissal.[49]The significant issue, as it turns out here, is that there has been, since the decision before the Employment Tribunal, the persuasive and, with respect, helpful decision of the Court of Appeal in Sutherland v Hatton [2002] IRLR 263 . It is not the case that that is the first decision in the field. At the time when the Tribunal reached its conclusion there was decided, and indeed had some years before been decided, the case of Walker v Northumberland District Council [1995] ICR 702 , a first instance decision of Colman J. That itself was antedated by an earlier decision in the Court of Appeal of Petch v Customs & Excise Commissioners [1993] ICR 789, which, though referred to in Walker , was not specifically referred to in the Tribunal's decision.[50]So far as Petch is concerned, a central plank of the decision of the Court of Appeal in that case, as made clear by the judgment of Dillon LJ at 796, was as follows, namely that:
"…unless senior management in the defendants' department were aware or ought to have been aware that the plaintiff was showing signs of impending breakdown, or were aware or ought to have been aware that his workload carried a real risk that he would have a breakdown, then the defendants were not negligent in failing to avert the breakdown of October 1974."
[51]There has been the subsequent decision, to which our attention has also been drawn, of Garrett v London Borough of Camden [2001] EWCA Civ 395 , which itself picks up both Colman J's decision and Colman J's citation of that part of Dillon LJ's judgment in Petch v Customs & Excise Commissioners .[52]However, the seminal approach towards questions of breach of the health and safety term in relation to a contract of employment leading to stress, and leading onto a psychiatric condition, is now the judgment of the Court of Appeal given by Hale LJ, in the four conjoined cases of Sutherland v Hatton; Somerset County Council v Barber; Sandwell Metropolitan Borough Council v Jones; Baker Refractories Ltd v Bishop [2002] IRLR 263 .[53]That was plainly intended to be a significant and major decision, because of the fact that it related to four conjoined cases on similar facts by the Court of Appeal, giving guidance to lower courts. Quite apart therefore from the fact that it is binding on this Tribunal, and of course would have been binding on the Employment Tribunal had it been decided at that stage, but must now be looked at as being declaratory of the law, it also, for the very reason of its significance, must give considerable guidance to courts dealing with similar cases.[54]Hale LJ not only deals with the facts of each of the four cases and reaches separate decisions in relation to each of them, and also summarises the Court of Appeal's conclusions as to both law and that guidance, but she also, by way of assistance, does two more things:(1) from time to time during her judgment she italicises conclusions which appear to us plainly therefore to be rationes , but certainly to be intended by her to be of particular significance; and(2) she summarises those conclusions, including the italicised conclusions, in a paragraph headed ' Summary ' at paragraph 43 of her decision.[55]That decision of the Court of Appeal was not available to the Tribunal, and, although Mr Barnett sought to argue that the decision of the Employment Tribunal was, as he put it, ' Sutherland compliant', it is apparent to us, for reasons which we will look at in a moment, that the decision can in no way be described as ' Sutherland compliant'.[56]Of course, it is not a comfortable task to allow an appeal against an Employment Tribunal decision because in the light of a subsequent authority, not available at the time to the Tribunal it can be seen to have been wrong. But we are satisfied that that is not anywhere nearly the only basis upon which we should interfere with and quash the decision of the Tribunal.[57]What Hale LJ has done is articulated, in very clear terms, the proper approach. But she has not changed the law. We are satisfied that by reference to any proper analysis of the implied term as to health and safety (to which we have referred) in the light of Walker and the other authorities which antedated the decision, this Tribunal did not approach the case properly in law.[58]Before we turn to the Sutherland case, therefore, we should assess the conclusions that the Tribunal did make. It sought to run together its consideration of the implied term as to trust and confidence which Mr Hughes himself had sought to put forward and the health and safety implied term which the Tribunal itself had put forward. That is done in paragraph 10 of its decision which begins as follows: 10 "Our conclusion that the respondents were at the time of the applicant's resignation in breach of both the implied terms referred to above follows from our consideration of all the particular circumstances obtaining during the twelve month period which ended with the Applicant's resignation and our conduct of the necessary balancing exercise implicit in it."[59]Mr Linden has criticised the reference to the purported 'necessary balancing exercise' and Mr Barnett accepts that a balancing exercise is wholly inappropriate in the context of considering whether there has been a breach of the implied term as to trust and confidence. Therefore, to that extent on any basis, the approach of the Tribunal must be looked at with some care. It must be concluded that, if a balancing exercise was relevant, it can only have been relevant for the purpose of consideration of questions of reasonableness, which would only apply in relation to the health and safety term, and not the trust and confidence term.[60]Paragraph 10, after that start, falls into three parts, although not so punctuated. The first part consists of the arguments, which the Tribunal accepted to be of some force, in favour of the employers. The second part contains the matters which the Tribunal saw as favourable to the Applicant. The third part was a fairly lengthy consideration of the resources of the Respondent, which appear to have been injected as a result of the way that the Tribunal formulated its implied term, to which we have referred above, and which dwindle into insignificance except for the purpose of consideration of questions of reasonableness, once the correct approach is established.[61]In the first part of the paragraph the Tribunal emphasised the very senior position of the Applicant, the fact that the business was in difficulty, that the Applicant had had time as a Financial Controller to assess the likely weight of the responsibilities of the post of Finance Director, a post which she aggressively sought when it became available, and that she knew what she was taking on and the Respondent knew that she knew; and in view of her enthusiastic attitude to it, and knowing nothing which might suggest the contrary, the Respondent was entitled at the outset to suppose that she would be capable of coping with the pressure of the work.[62]There is reference to Mr Marshall's assertion that he took the email and its attachment as a plain statement of the simple facts of the matter it set out, and not as a cry for help or as an indication that the Applicant's health was at risk; and that was held to be understandable "if the document alone were the only relevant consideration". The Tribunal further recites:
"Even at the point when the die had been irrevocably cast by the tender of her resignation the Applicant did not make it explicitly plain to Mr Marshall that her responsibilities had borne her down to the point where her health had been seriously affected."
The Tribunal takes into account the financial difficulties of the Respondent and the fact that Mr Marshall had not been aware that the Applicant's job was getting her down.[63]The conclusions of the Tribunal are born in the second part of paragraph 10, in which the counter-balancing arguments for the Applicant are set out, and which we shall read, but do not in fact emerge until paragraphs 11 and 12 of the decision. The relevant part of paragraph 10 reads as follows:
"On the other side of the equation we take account of the fact that only a few weeks before her resignation the Applicant had been in tears when in conversation with her Board colleague Mr Knott and had told him that she was feeling she could not cope: Mr Marshall had seen for himself that she was in some distress on that occasion but simply accepted Mr Knott's assurance that he thought there was nothing much to worry about and that the Applicant would get over it. Mr Dastur had seen the Applicant in tears on two or three occasions – in addition to the occasion on which she was lobbying him for the appointment as Finance Director…Despite the interpretation which Mr Marshall put on the 6 June email from the Applicant the fact is that it included a detailed log of the tasks the Applicant expected to have to perform over the next following six months with her estimate of the necessary time allocation against time available and a plain statement that she was "85% overworked."
He clearly attached importance to that document given the fact that his immediate response was that he and the Applicant should set a half day aside for the purpose of considering the implications of what she was saying: he completely failed to do that. He thought it appropriate to speak to Mr Dastur about the issues raised by the email and still nothing was done. Mr Dastur had seen the Applicant in tears on three or four separate occasions. He must be taken to know that tears at work are a sign of stress of one kind of another – not necessarily work related but almost certainly likely, particularly if apparent on more than one occasion to have some impact on working capacity – and we cannot dismiss the conclusion that his own assessment of the Applicant's workload and his reference in evidence to her tears as "the waterworks" are indicative of a reluctance to make a purposive enquiry into the possibility that the Applicant's health might be at some risk." That is the summary of the points that were made in favour of the Applicant, to be set against those in favour of the Respondent.[64]The conclusions of the Tribunal are set out in paragraph 11: 11 "Balancing these factors out as best we can and taking account of the fairly obvious proposition that few senior executive employees are likely to be willing to acknowledge openly to their colleagues that they are overworked, we have concluded that during the two or three week period immediately proceeding the Applicant's resignation on 20 June last year it was, had Mr Marshall and/or Mr Dastur been as reasonably pro-active in these matters as they should have been, a reasonably foreseeably proposition that the Applicant's health might have been at risk by reason of the burden of her work; and that MSV failed during that period to do what it reasonably could have done – in particular by failing to take the Applicant aside to make in private specific enquiries of her directed to seeking reassurance about the state of her health – to take reasonably practicable steps to avoid the injury to her health which her attempts to cope with her workload were then inflicting. To put it another way, we are unable to accept their protestations to the effect that "we did not know there was a problem and there was no reason why we should have known that there might be one". The facts of the matter were such as to have put Mr Marshall and Mr Dastur on enquiry but they failed to make any enquiry."[65]It is apparent, from that paragraph, that the basis of the Tribunal's conclusion is founded upon the failure by the Respondents to be proactive, and that, even in the event that they had been proactive, and had made private specific enquiries of the Applicant directed to seeking reassurance about the state of her health, the highest they could put it was that it was a reasonably foreseeable proposition that, had they been so proactive, the Applicant's health might have been shown to be at risk.[66]In paragraph 12 the limited ambit of the criticism of the employer is made clear: 12 "Accordingly we find that MSV was in breach of both of the general term implied in the Applicant's contract in relation to the maintenance of trust and confidence and also the more specific implied term set out in clause paragraph 8 above. Having no doubt that the Applicant's resignation was precipitated solely by the effect of her workload upon her mental health and by Mr Marshall's failure during the period after her 6 June email to him to take any step indicating that he might give consideration to ways and means of lightening the load, we find that she was indeed "constructively" dismissed by MSV and, secondly, that in the circumstances there can be no possibility of a finding that MSV acted reasonably in all the circumstances in treating the "reason" for that dismissal (whatever the reason may have been) as sufficient reason for her dismissal."[67]It is consequently clear, as indeed Mr Barnett accepted, that the basis for this decision of the Tribunal was limited to the period from 6 June (when it is said that the employer was first put on notice by the Applicant) until 20 June (when she resigned).[68]We turn to Hale LJ's informative judgment. Hale LJ points out a number of matters which were also, as is clear from the Decision which we have read, apparent to the Tribunal itself. At paragraph 11 (1) in setting out what she calls " Differences from other work-related harm ", she points out that the employer is much less aware of what is going on in his employees' minds or in their lives outside work than he is of what is going on in his own factory, school or office; and that the employee may very well wish to minimise or conceal the true state of affairs from his employer because no-one wants to be thought unable to cope; and at paragraph 11 (4) that, whereas the employer can be expected to take responsibility for keeping the physical risks presented by the workplace to a minimum, "responsibility both for causing and for doing something about its psychological risks may be shared between many people (family, friends and the individual himself) as well as the employer".[69]Again, at paragraph 14, she points out that: 14 "…if the standard of care expected of employers is set too high, or the threshold of liability too low, there may also be unforeseen and unwelcome effects upon the employment market. In particular, employees may be even more reluctant than they already are to take on people with a significant psychiatric history or an acknowledged vulnerability to stress-related disorders.[70]She then points out, in paragraph 15 that: 15 "No-one can blame an employee for being reluctant to give clear warnings to his employer of the stress he is feeling… [but that] …it may be difficult in those circumstances to blame the employer for failing to recognise the problem and what might be done to solve it."[71]She sets out, at paragraph 19, the nature of the duty, which of course is concomitant with the implied term, as Mr Barnett has accepted, on an employer to take reasonable care for the safety of their employees. It is quite plain, as indeed Mr Barnett has now accepted, that contractual claims by the employees themselves, who are primary victims, are to be equivalated to tortious claims by such primary victims.[72]In paragraph 22 she approves the dictum of Simon Brown LJ in Garrett , which was itself based upon the views of Dillon LJ at 796 in Petch . At paragraph 63 of Garrett Simon Brown LJ said as follows:
"Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation: be it simply overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown which the Claimant's employers ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability . [Hale LJ's emphasis]."
[73]Mr Barnett refers, particularly, to paragraph 26 of Hale LJ's judgment, which is under the general heading of " Foreseeability ". She emphasises, when setting out the number of factors which were likely to be relevant, that "These include the nature and extent of the work being done by the employee ." That passage is italicised, and is relied upon by Mr Linden as a significant italicisation, in the light of the failure by this Tribunal, as we have quoted above, to address the nature and extent of the work being done by the employee.[74]Hale LJ then continues as follows:
"Employers should be more alert to picking up signs from an employee who is being overworked in an intellectually or emotionally demanding job than from an employee whose workload is no more than normal for the job or whose job is not particularly demanding for him or her. It will be easier to conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is in all the circumstances of the case unreasonable. Also relevant is whether there are signs that others doing the same work are under harmful levels of stress. There may be others who have already suffered injury to their health arising from their work. Or there may be an abnormal level of sickness and absence amongst others at the same grade or in the same department. But if there is no evidence of this, then the focus must turn to the individual…"
[75]Mr Linden refers to the paragraphs which follow, which we recite in material part: 27 "More important are the signs from the employee himself . Here again, it is important to distinguish between signs of stress and signs of impending harm to health. Stress is merely the mechanism which may but usually does not lead to damage to health. Walker is an obvious illustration: Mr Walker was a highly conscientious and seriously over-worked manager of a social work area office with a heavy and emotionally demanding case load of child abuse cases. Yet, although he complained and asked for help and for extra leave, the judge held that his first mental breakdown was not foreseeable" Mr Linden draws considerable contrast between the facts of this case and that of Walker in those circumstances. "There was, however, liability when he returned to work with a promise of extra help which did not materialise and experienced a second breakdown only a few months later. If the employee or his doctor makes it plain that unless something is done to help there is a clear risk of a breakdown in mental or physical health, then the employer will have to think what can be done about it. 28 Harm to health may sometimes be foreseeable without such an express warning. Factors to take into account would be frequent or prolonged absences from work which are uncharacteristic for the person concerned; these could be for physical or psychological complaints; but there must also be good reason to think that the underlying cause is occupational stress rather than other factors; this could arise from the nature of the employee's work or from complaints made about it by the employee or from warnings given by the employee or others around him. 29 But when considering what the reasonable employer should make of the information which is available to him, from whatever source, what assumptions is he entitled to make about his employee and to what extent he is bound to probe further into what he is told? Unless he knows of some particular problem or vulnerability, an employer is usually entitled to assume that his employee is up to the normal pressures of the job . It is only if there is something specific about the job or the employee or the combination of the two that he has to think harder. But thinking harder does not necessarily mean that he has to make searching or intrusive enquiries. Generally he is entitled to take what he is told by or on behalf of the employee at face value . If he is concerned he may suggest that the employee consults his own doctor or an occupational health service. But he should not without a very good reason seek the employee's permission to obtain further information from his medical advisers. Otherwise he would risk unacceptable invasions of his employee's privacy."[76]In that context, Mr Linden points to the fact that it would appear from paragraph 11 that the Tribunal has rested its own conclusions on a failure by Mr Marshall to be what it called "reasonably proactive," by "failing to take the Applicant aside to make in private specific enquiries of her directed to seeking reassurance about the state of her health".[77]It will suffice for us to set out only further from Hale LJ's judgment the other relevant italicised passages relating, first to foreseeability, and then to breach of duty and causation: (1) (paragraph 31):
"… in view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health, the indications must be plain enough for any reasonable employer to realise that he should do something about it ." (2) (paragraph 33): "… in every case it is necessary to consider what the employer not only could but should have done ." (3) (paragraph 34): "… the employer can only reasonably be expected to take steps which are likely to do some good ." (4) (paragraph 35): "
Having shown a breach of duty, it is still necessary to show that the particular breach of duty found caused the harm ."[78]It is perhaps apparent, simply from the reading of those last italicised passages, clear that this judgment cannot possibly be described as being " Sutherland compliant": (1) The Tribunal did not even address, in our judgment, the question as to whether the indications were plain enough for any reasonable employer to realise that he should do something about it. Mr Barnett valiantly sought to say that because the Tribunal from time to time uses the word 'plain' they must have considered the point, even though of course Sutherland was not around in terms to render it necessary for them so to consider. But the clearest passage appears to us to be at the end of paragraph 1 of the Decision, when setting out what they saw to be the issue which was denied by the Respondent as follows:
"The respondents deny…that there was anything in their relationship with the applicant at the material times which might have led them to suppose that she was dangerously overburdened with work and at risk of the breakdown which she ultimately suffered."
It is apparent there that what the Tribunal were recording that the Respondent denied was the issue which the Applicant supported and which the Tribunal in the end found; namely, that there was something in the relationship with the Applicant at the material time which might have led the Respondent to suppose that she was dangerously overburdened. Mr Barnett sought to say that the word 'might' should be read rather as 'should', on the usual basis that one should try not to read decisions of Tribunals as statutes. But of course even that would not be sufficient, because it would have to be 'plainly should.' We must recognise the reality of the exercise we are carrying out. This is, given that the Tribunal could not have complied with Sutherland in terms, when they did not know of it, and indeed the judgment had not yet been given, can it be said that the approach which in different terms the Tribunal was adopting, even if not ' Sutherland compliant', nevertheless reached the same conclusion as would have been reached if it had been ' Sutherland compliant'? What is it from which it is to be said that the indications were plain enough for any reasonable employer to realise that he should do something about it? The first matter to point out is that it is expressly said by the Tribunal in its conclusions that they were not (as Mr Barnett accepts); but it is only in respect of the period between 6 June and 20 June that the employer is to be blamed. In those circumstances the highest it can be put by Mr Barnett is that the Tribunal ought to have had in mind in some way the earlier events, albeit that they would not have been of themselves sufficient to put the employer on notice. Those earlier events, however, are extremely nebulous. There are the undated occasions when Mr Dastur is said to have noted that the Applicant was in tears, not the matter on which the Applicant herself relied in her evidence, and which were said to have been considered by Mr Dastur to have been events when she felt frustrated; and one can well understand, with the heavy obligations of a Finance Director, that there will be many times when she would be frustrated. One of them is said to have been when she was trying, out of an obvious sense of fairness, to persuade the employer to give other people the chance to compete against her for promotion. None of those of themselves are even said to have put the employer on notice as to the existence of stress, never mind psychological injury; but would plainly not amount to sufficient to come within Hale LJ's formulation of plain indications that the employer should do something about the Applicant's health. The other matter relates to the incident when Mr Marshall saw that Mrs Osborne, the Applicant, had been upset, and asked Mr Knott and was reassured by him, and such conversation in which Mr Knott reassured Mr Marshall was reported back to the Applicant, and she took no further step and nor did Mr Marshall. It appears to us that that is quite insufficient to amount to any kind of indication, plain or otherwise, that there was an injury to health which needed something doing about it. The only other matter then that is left on the findings of the Tribunal would have been the letter of 6 June. That, at any rate, without further consideration, would appear to be an unlikely candidate for a trigger for an enquiry about health. Indeed, it was, in the course of submissions, canvassed as to whether it would not rather be regarded as high-handed or capricious by the employer if their response, to a detailed email such as that sent by the Applicant, had been to question her physical or mental health. But at any rate, there was no addressing by the Tribunal of this important question and the Tribunal itself in paragraph 11 make it plain that it is not even sought, in the context of the findings that it made, to be said that there would have been a reason for such a conclusion without the so-called need for reasonable pro-activity; and that reasonable pro-activity (or at any rate its value) is expressly doubted by Hale LJ in paragraph 29 of her judgment, to which we have referred. (2) The second italicised passage which we have referred to self-evidently was not complied with by the Tribunal, namely, that in every case it is necessary to consider what the employer not only could but should have done; and we take together with this the further italicised passage that the employer can only reasonably be expected to take steps which are likely to do some good. On the assumption that the Tribunal has asked itself the correct question, namely was there a breach of the simple implied term, to which we have referred, that the employer had a duty to take reasonable care for the safety of its employees, the next question inevitably had to be, assuming that that was the term was it breached, what steps should the employer have taken? For that purpose it is essential to know, and to set out, as made clear by Hale LJ in her decision, precisely what work it was that the employee was doing which was said to amount to overwork; and then to address the question as to what the employer should have done but did not do; and, further, whether, had they done it, it would have done some good. Of course, in that context, questions will arise such as: whether the Applicant was genuinely acquiescing in the extra workload; whether she was genuinely enthusiastic about doing the work and determined to do it, notwithstanding offers of help, and indeed resisting intervention by her employers; whether indeed, as would appear to be suggested by her resignation letter, her complaint was rather that she was not allowed to get on with the work that she wanted to do, rather than that she was not capable of doing it because of psychological injury. But above all there would come into play the question as to what the employers should have done. This is where it becomes particularly significant that there is no express consideration, except in terms of generality, by the Tribunal as to whether the breach in question was a fundamental breach. In looking to see what it is the Tribunal conclude, that the Appellant either did wrong, which it should not have done, or did not do, which it should have done, the period has to be limited, on the findings of the Tribunal, to that between 6 June and 20 June; and of course, given the absence of Mr Marshall (uncomplained of and indeed unreferred to in the evidence) on 19 June, the period of time dwindles down to the period between 6 or perhaps 8 June (given that the correspondence continued until then) and 16 June. What the Applicant was asking for was a culture change, was a substantial consideration of a changed way of setting about the financial and budgetary approaches of the company, indeed possibly of the Group, no doubt more staff, and transfer of responsibilities from her department to other departments. There is no finding by the Tribunal that the response by the Respondent was a sham, or that the Respondent deliberately disregarded what she said and had no intention to do anything about it. The findings are limited to the facts: (i) that nothing was done prior to 16 June; and (ii) that the matter was not discussed and was left undealt with at the end of the meeting of 16 June. Mr Linden has already submitted, as we have indicated, that, insofar as there was a finding of some criticism of the employer for the handling of the meeting of 16 June, that would be perverse in the light of the evidence which both Applicant and Respondent gave before the Tribunal. But we do not need to consider questions of perversity here and can leave it simply on the basis that, put at its highest, the Tribunal found that there was an inadequate dealing with the complaints made by the Applicant; and not a deliberate failure to deal, or a sustained failure to deal. It was a very short period and the Tribunal itself found, as we have indicated, that the meeting on 16 June was taken up with pressure of business, rather than that there was any deliberate disregard of the points made by the Applicant or any deliberate decision not to deal with them. The other failure, to which we have already made brief reference, which is set out by the Tribunal, at paragraph 11 of its Decision, and relied on by Mr Barnett, is the failure to make in private specific enquiries of the Applicant directed to seeking reassurance about the state of her health; and we have already indicated that it appears to us that a decision by an employer not to take that step, but rather to hold a promised meeting, even though in the event there is not time to deal with the matter, can, put at its lowest, not be said to be a breach of duty; indeed, to have made any other response might itself rather have been regarded as being not the proper response of an employer, as we have already indicated. (3) (4) (5) The further matter, which is not far different from the second, is that, as italicised by Hale LJ, it is still necessary to show that the particular breach of the duty found caused the harm. The Tribunal did not address the question, given that it in the end limited the breach to the period between 6 or 8 June and 16 or 20 June, as to whether it was that breach of duty which caused the harm, the harm not in fact manifesting itself, it seems, until August 2000.[79]We are entirely satisfied that, as articulated by the Tribunal, but even as rephrased by reference to an abbreviated and more conventional implied term, the Tribunal failed entirely to approach the question in accordance with the law, not simply because it did not have available the judgment of Hale LJ, but also because it is obvious that any approach towards this implied term must require consideration of precisely what it is that the employer did wrong and, above all, whether what they did wrong was a repudiatory wrong. Thus it must be that their conduct has to be identified and then found to be in repudiatory breach.[80]For all the reasons that we have indicated, we conclude that on the findings of the Tribunal the conclusion on the implied term as to health and safety, however formulated, cannot stand and must be erroneous in law.[81]We turn to the alternative case in trust and confidence. Mr Linden submits that there is inadequate consideration of this aspect, because it was so subsumed under the Tribunal's preferred route of health and safety. But, in the light of the considerable time that we have taken to analyse both the decision and the health and safety term in the course of this decision, we can deal with this point quite shortly.[82]Whatever may be the reason, and however far it can be said that on the face of it that the Tribunal said they were addressing a breach of this term and finding that it occurred, the Tribunal did not, it is clear to us, approach the question correctly in law.[83]We have been shown a recent helpful decision of Mr Recorder Langstaff QC in BG Plc v O'Brien [2001] IRLR 496, which emphasises that there is no implied obligation on an employer to act reasonably; and we entirely agree with the analysis that he has carried out. What has to be identified is conduct by the employer which is so serious as to amount to a repudiatory breach; that is, in the context of the mutual trust and confidence, to go to the root of the trust and confidence between the employer and the employee and destroy it or be calculated to be likely to destroy it.[84]No conduct, in our judgment, is even sought to be identified, but certainly is not identified by the Tribunal, which begins to come within this category. Turning again to the conclusory paragraphs in paragraphs 11 and 12, which follow on from the 'balancing exercise' in paragraph 10, it is quite plain that a failure to take the Applicant aside to make specific enquiries cannot possibly be said to be a repudiatory breach, or to be a breach of the implied term of trust and confidence (perhaps even rather the reverse, as discussed), and that the failure, such as it was, to deal with the email of 6 June, even as found by the Tribunal, as between 6 and 16 June – and even the failure as found by the Tribunal at the meeting of 16 June – cannot in our judgment conceivably (certainly without proper reasoning given by the Tribunal) be said to amount to such a breach. No effort is made by the Tribunal in any real sense to indicate what it is the Tribunal should have done by way of responding to the email of 6 June that it did not do; and in the light of its rejection of the evidence given by both parties as to what did occur on 16 June, once again it is unclear how it could be said that the events of 16 June evidenced or indicated the destruction of the mutual trust and confidence between the parties, without more.[85]There is, however, a further concern which Mr Linden rightly addressed, in our judgment, and that is that it is a fundamental part of the trust and confidence term, which we have already quoted, that if the employer does destroy or acts so as it is likely or calculated to destroy the trust and confidence between the parties, he is still not liable if he has proper and reasonable cause. That was not addressed at all by the Tribunal. For example, if it were the case that the failure to act before 16 June was, on the face of it, destructive of the trust and confidence, then it would need to be addressed as to whether it was proper and reasonable of the employer to wait until the meeting, if the failure to deal with the matter at the meeting were otherwise destructive of the trust and confidence; or indeed on 19 June when Mr Marshall was in any event not in the office, it would need to have been considered whether the fact that there was pressure of other business amounted to a proper and reasonable cause.[86]None of that was addressed. Mr Barnett has sought to refer to the conclusions set out in paragraph 12 of the Decision, that, once there had been a finding of constructive dismissal, there was no possibility of a finding that the Respondent acted reasonably in all the circumstances in treating the reason for that dismissal as sufficient reason for dismissal. That seems to us to be self-evident. In fact, in this case, if they had found that there was a breach of the implied term of mutual trust and confidence and properly so found, plus a constructive dismissal, it would not have been possible, in our judgment, to have made any other finding than that the constructive dismissal was unfair. But that does not begin to suggest that there was a proper consideration of whether there was a constructive dismissal at all, given that, although the term was referred to at paragraph 8 of the Decision, there was no further reference to the words 'without reasonable and proper cause,' never mind any consideration of it.[87]There were certain other arguments that Mr Linden put forward, particularly on causation, and on whether the Tribunal adequately addressed, or at all addressed, the question as to whether there was in fact an acceptance of the repudiation by virtue of the apparent mismatch, as he submits, between the resignation letter and any suggestion that there was a constructive dismissal by virtue either of a breach of the health and safety term or of a breach of the mutual trust and confidence term. But we need say no more about that further argument, save to say that there is, in our judgment, some force in it, particularly in relation to the health and safety term which, in any event, does not appear to have been in anyone's mind, until raised by the Tribunal.[88]In those circumstances we are entirely satisfied that this Tribunal's decision cannot be upheld. We have to ask what should be done? Mr Linden retained as his fallback the remission argument and, albeit that it was not in the forefront of his Skeleton Argument, he submitted forcefully, particularly in reply, that, in the light of our conclusions, we should not remit, on the basis that, on the findings of this Tribunal, there could not have been, had they been properly directed, a finding of breach of either of the two implied terms, but also on the basis that on the findings of fact that could be made no reasonable Tribunal could reach the conclusion that there were such breaches.[89]Mr Barnett submits that, if this matter were to be sent back, then the Tribunal, particularly if they were not concentrating or possibly even attending at all to the issue of the implied term as to health and safety but were rather looking at the term which Mr Hughes would prefer them to have looked at in any event, namely as to breach of the mutual trust and confidence term, findings of fact might be made by a fresh Tribunal which would (or might) lead to success for his client.[90]Certainly if one looks at the limited period between 6 June and 19 or 20 June, it appears difficult to identify what conduct of the employer could be characterised as repudiatory or destructive of trust and confidence, or indeed what conduct would even render them in breach as to what they should have done but did not do.[91]But Mr Barnett submits that at a re-hearing, particularly if a Tribunal was prepared to do that which this Tribunal was not prepared to do, namely to analyse the nature and extent of the work done by the Applicant, there might be a finding that by virtue of the overwork and by a proper application of the Sutherland test, a Tribunal might find a constructive dismissal.[92]We have found this a difficult question and we are far from confident that the Applicant has any real prospect of success at a re-hearing, but we are not prepared to say that there is no chance that she would succeed, and consequently we conclude that it is appropriate for the matter to be remitted for a further hearing of this application upon the present decision being quashed.[93]It would appear sensible for this to go to a different Tribunal unless either side have any submissions to make.