RHM FROZEN FOODS LIMITED v MRS J KING [2003] UKEAT 1449_01_1403

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1449_01_1403Case No Appeal No. EAT/1449/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
RHM FROZEN FOODS LIMITEDAPPELLANTMRS J KINGRESPONDENT
Before
Mr Justice Rimer Ms P Tatlow Mrs R A VickersDate 14 March 2003
[1]APPEARANCES For the Appellant MISS KATE GALLAFENT (of Counsel) Instructed By: Messrs Farrer & Co Solicitors 66 Lincoln Inn Field London WC2A 3LH For the Respondent MISS JACQUELINE LULE (of Counsel) Instructed By: Employment Law (UK) Limited Second Floor 29 London Road Sevenoaks Kent TN13 1AR THE HONOURABLE MR JUSTICE RIMER This is an appeal by RHM Frozen Foods Limited ("RHM") against a decision of an employment tribunal sitting at Ashford, Kent over eight days in April and July 2001 and chaired by Mr N. Mahoney. The tribunal's extended reasons were promulgated on 9 October 2001. The applicant before the tribunal was Mrs Joanne King, a former employee of RHM. The tribunal decided that RHM did not discriminate against her on the grounds of her disability, but did find that it had constructively dismissed her and upheld her claim that she had been unfairly dismissed. RHM, which was represented before us by Miss Kate Gallafent, appeals against the latter holding. Mrs King was represented by Miss Jacqueline Lule, who also represented her before the employment tribunal. Our summary of the facts is taken from the tribunal's findings.[2]Mrs King was originally employed as a cold store superintendent with Tiffany's Sharwood Frozen Foods. She had commenced work with them on 10 April 1995. Her employment was transferred to RHM on 4 May 1997 under the TUPE Regulations 1981. The effective date of termination of her employment with RHM was 23 June 2000.[3]By 1998, Mrs King held a responsible position running four frozen food warehouses on two adjoining sites. She supervised about 10 people: warehouse operatives, forklift drivers and a chargehand. She alternated between morning and afternoon/evening shifts. In early 1999, there were some occasional problems with the operation of the warehouses, but her work was regarded as satisfactory by her then immediate line manager, Mr Evo, and also by her ultimate line manager, Mr Harris. Occasionally, however, Mr Harris had to speak to her about matters that had gone wrong. By late 1999, however, a series of problems involving Mrs King arose, which came to Mr Harris's attention. They arose at a time when the warehouse supervisors were under a lot of pressure.[4]On 16 December 1999, there was an incident in the smokers' rest room. Mrs Atkinson, Mrs King and other staff members were there and Mrs Atkinson remarked, in relation to Mrs King's red painted fingernails, "How can you take her seriously with nails like that?" Mrs King was offended and complained to Mr Evo. He advised her to speak to Mrs Atkinson about the matter and endeavour to make peace, and told her that if she was not satisfied she should make a formal complaint. Mr Harris learnt of the incident later and spoke to Mrs Atkinson, who was taken aback that she had apparently caused such offence. Mrs King did not take out any formal grievance about the matter.[5]This incident does not appear to have been taken further by anyone. But on the following day, 17 December, Mr Evo told Mrs King to see Mr Harris in his office. Mr Harris told her that a disciplinary hearing had been arranged for 21 December 1999. He did not tell her what matters were to be discussed and she was not supplied with any relevant documentation.[6]The hearing took place on 21 December in Mr Harris's office. It was attended by Mrs King, Mr Kirsopp (an RHM operative who was there as her colleague), Mr Harris and Mrs Vagg, a junior employee in the personnel office. Mrs Vagg gave Mrs King no advice as to how to conduct the disciplinary hearing and was entirely passive throughout.[7]Mr Harris raised a number of matters by way of complaint against Mrs King at the hearing, as follows. He asserted that: 1. She had not properly carried out a stock check of Sofrapain bread. 2. She had not discharged her responsibility of appointing a supervisor at all times over the Grosvenor House site during her shifts. 3. She had made quite a serious error on the Safeway Hub paperwork, resulting in part of an important delivery not being made. 4. She had failed to pick up and correct errors on the paperwork supplied by Ferndale Limited and further errors made by RHM's distribution office. 5. Mr Slater, a forklift driver on Mrs King's shift, had raised with Mr Harris a number of grievances about conditions in the coldstore affecting his health. 6. Mr Sargison, a warehouseman, had been dismissed as a result of writing an offensive note on some RHM paperwork and that, although Mrs King knew of the note, she had done nothing about it. 7. She had failed to fill out daily shift monitor sheets and to supply them to Mr Harris promptly, and there was a large backlog he had not seen. 8. She had allowed a situation to develop in which there were insufficient store men trained in forklift driving, despite an earlier instruction to her to make sure such training was put in hand. 9. She had revealed to some of the workforce confidential matters discussed at meetings she had attended. 10. She lacked effort.[8]At the end of the hearing, Mr Harris gave Mrs King a verbal warning. She had been very upset by the hearing and left it in an emotional state. She was shaking. She drove her car to the river where she contemplated suicide. Her husband found her there and took her home. She consulted her GP who signed her off work. She never returned to work for RHM.[9]On 22 December 1999, her husband rang RHM's personnel department to tell them that she would be off sick until the New Year and not to contact her. On 23 December, Mr Harris wrote to Mrs King confirming the verbal warning and reminding her of her right of appeal. On 6 January 2000, Mrs King wrote to Miss Patterson, RHM's human resources' director, explaining her wish to appeal against the verbal warning. The tribunal made no detailed reference to this letter in their reasons, although we were provided with a copy. It is a carefully written, seven-page letter, in Mrs King's manuscript. It sets out the basis of her appeal very fully. She opened it by saying that the outcome of the hearing was not just a verbal warning, she regarded it as the first step towards her summary dismissal, and so she took it very seriously. Contrary to the tribunal's findings, her letter suggests that on 17 December she was provided with at least some documentation relating to the forthcoming hearing.[10]Mrs King remained on sick leave, supplying sick notes to RHM. By letters of 25 January, 18 and 25 February and 6 March 2000, RHM sought her consent to be examined by RHM's doctor. She did not reply to them.[11]In March 2000, Employment Law (UK) Ltd ("ELUK"), employment consultants, came on the scene for Mrs King. ELUK wrote to RHM on 6 March, saying that all correspondence should be addressed to them, refusing RHM's request for their doctor to examine Mrs King and declining to release her medical notes to RHM. On 27 March 2000, ELUK promised to provide RHM with a medical report on Mrs King's condition, but never did. There was further correspondence between ELUK and RHM in the period up to 3 May 2000, during which ELUK continued to refuse RHM's request for their doctor to examine Mrs King. A counsellor/therapist, Mr Philip King, provided a written report about Mrs King on 10 May, which was forwarded to RHM on 21 May. Mr King was not medically qualified.[12]On 14 May, Mrs King wrote to Miss Patterson of RHM, referring to the latter's letter of 12 May to her, which she said had once again caused her much distress. She said her underlying condition had been caused by an "unacceptable level of bullying and harassment from Mr Harris over a period of time." She said she had tried to discuss this in February 1999, and that Mrs Patterson would not arrange an appointment but had just passed her letter to Mr Harris so that she suffered more abuse, threats and bullying. She wrote that she was currently considering her position with RHM, but could not see how she could return so long as Mr Harris was there. Her main concern was whether, if moved to other employment, she would get a reference from RHM; and she mentioned that Mr Harris had told her in the past that RHM would not give her one, and would "stick the boot in." She added:
"I was until this weekend making good progress and was being weaned off my antidepressants, my solicitor should be sending you a report today, I trust you will reimburse me for the £25 fee."
[13]On 23 May, RHM wrote to ELUK pointing out that they were no wiser as to Mrs King's underlying condition than when she first went off sick. On the same day, Miss Patterson wrote to Mrs King in response to her letter of 14 May. She apologised if her correspondence had caused distress. She complained politely that RHM had received no advice or information as to Mrs King's state of progress or expected date of return. She said she had arranged for Mrs King to see Dr Smith, the RHM medical adviser, on 7 June, who could see her either at home or at a hotel, whichever she preferred. She referred to Mrs King's appeal letter, and suggested that at that stage they should simply concentrate on her grievance, leaving the appeal on one side. She said RHM would be happy to cover the £25 fee, on submission of an invoice.[14]Mrs King's response was her letter of 25 May, by which she tendered her resignation from RHM, saying "I feel I can no longer continue as coldstore superintendent and that to return to RHM would be detrimental to my health and well-being." She presented her originating application on 1 August 2000.[15]Against that background, the issue for the tribunal with which we are particularly concerned was whether Mrs King had been constructively dismissed. If she had been, it does not appear to have been in question that the dismissal was also an unfair one. We will return to that issue in a moment, but it is also relevant to bear in mind that the other issue before the tribunal, also of some present relevance, was Mrs King's claim that RHM had discriminated against her on the grounds of disability. At a preliminary hearing of a differently constituted employment tribunal held on 12 February 2001 (chaired by Mrs Valerie Cooney), the tribunal had found that Mrs King did suffer from a disability within the meaning of s.1 of the Disability Discrimination Act 1995, a disability in the nature of an impairment affecting her ability to carry out normal day to day activities, and affecting her memory, ability to concentrate and understand. The finding was that Mrs King was suffering from that disability at least from December 1999; and the finding of the tribunal whose decision is under appeal before us was that Mrs King's "major depressive disorder with phobic anxiety disorder arose directly as a result of the disciplinary hearing conducted by Mr Harris" on that day. The issues raised by her disability discrimination claim included whether, amongst other things, RHM had failed to investigate various allegations she had raised against Mr Harris in her letter of 6 January 2000 and failed to reassure her that such behaviour would not recur. The tribunal rejected Mrs King's disability discrimination claim in its entirety[16]Reverting to her constructive dismissal claim, the event which led to Mrs King staying off work as from 22 December 1999 was the disciplinary hearing on 21 December 1999. The holding of that hearing in the manner it was held appears to us to have been a disgrace. According to the tribunal's finding, Mrs King was given no prior warning of the issues which were to be raised, and so had no opportunity to consider and investigate the heads of complaint or to prepare for the hearing in any way. The hearing ignored the most basic requirements of ordinary principles of fairness and, in particular, of the disciplinary procedure incorporated into Mrs King's contract of employment, paragraph 2 of which provided that "Employees will be given notice of disciplinary action to give adequate preparation time." The procedure further provided that no disciplinary action was to be taken until the situation had been fully investigated, which had not happened. Paragraph 6 of the disciplinary procedure provided for the formal procedure of a "disciplinary interview", which we assume the hearing of 21 December was, but it does not appear that RHM paid any regard to that, and Mrs King was not given any opportunity to test the evidence relied on by RHM or to call evidence of her own. We are not surprised that at the end of it she emerged somewhat shell-shocked. The tribunal's decision[17]In dealing with Mrs King's claim that she had been constructively unfairly dismissed, the tribunal referred first to s.95(1) of the Employment Rights Act 1996, the relevant part of which reads:
"95. Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if … (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."
[18]The tribunal then directed itself as to the applicable law as follows:
"12. An employee is entitled to treat himself as constructively dismissed if an employer has been guilty of conduct which is a significant breach going to the root of the contract or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. In such circumstances, the employee is entitled to leave with or without notice, but that conduct in either case must be sufficiently serious to entitle him to leave at once. See Western Excavating (ECC) Ltd. v. Sharp [1978] IRLR 27 . Further, in assessing whether or not there has been a breach of the implied obligation of mutual trust and confidence, it is the impact of the employer's behaviour on the employee that is significant. See Malik v. Bank of Credit and Commerce International SA [1997] IRLR 462 . Further, a delay between the final act entitling an employee to treat himself or herself as constructively dismissed and the decision to terminate the contract of employment can extend over a period of time if the employee was suffering from mental illness during that period and that illness has been the cause or principal cause of that delay: Bashir v. Brillo Manufacturing Co [1979] IRLR 295."
[19]The tribunal then concluded, in paragraph 18, that Mrs King "was constructively unfairly dismissed for the following reasons", which we will quote verbatim:
"(1) The complaints against her dealt with in the disciplinary meeting on 21 December 1999 had not been fully investigated by Mr Harris. (They had only been partly investigated.) (2) [Mrs King] had not been given adequate time to prepare her defence. (3) [RHM] should have provided [Mrs King] with an agenda setting out the items to be discussed. This should have been provided in advance, together with copies of all relevant documentation. (4) [Mrs King] was not allowed to question relevant witnesses as provided for by the applicable disciplinary procedure. (5) It is clear from the transcript of the tape, that the telephone rang on very many occasions and was very loud and was so disruptive as to make it impossible for the disciplinary meeting to proceed in a proper and appropriate manner."
[20]The tribunal then found:(i) in paragraph 19, that RHM's actions following the time when Mrs King went on sick leave did not amount to a breach of the implied term of trust and confidence in her employment contract;(ii) in paragraph 20, that, in view of Mrs King's mental impairment after 21 December 1999, she did not affirm the contract before her resignation letter of 25 May 2000; and(iii) in paragraph 21, that her mental impairment disability was as a result of the meeting on 21 December with Mr Harris, a conclusion said to be supported by the medical evidence of Drs Cooney and Ahmed. The appeal[21]On this appeal, RHM raises several grounds of appeal. Miss Gallafent is disposed to accept that, in paragraph 12, the tribunal's direction to itself as to the applicable law was essentially correct so far as it went (which was not in fact the whole way). But RHM's first ground of appeal, which has three sub-heads, is that the tribunal was in error(i) in making no finding as to a breach of any relevant term of Mrs King's employment contract;(ii) in finding that any such breach was repudiatory of that contract; and(iii) in making a perverse finding that there had been a repudiatory breach.[22]In considering this ground of appeal, it is instructive first to look at the way in which Mrs King advanced her constructive dismissal case in the originating application. She there alleged that:
"36. [RHM] has fundamentally breached my contract by failing to follow a proper procedure in its disciplinary process begun on 17 th December. In breach of section 10 of the Employment Relations Act 1999 Mr Harris failed to invite [me] to bring a companion to the initial meeting. In the disciplinary meeting of 21 st December Mr Harris was intimidating and unprofessional. In breach of 7.7 of its disciplinary procedure, [RHM] has failed to advise me of the nature of complaints against me. In addition complaints made against me were not substantive nor were they properly investigated prior to the meeting. Further [RHM] failed to supply me with a copy of either contemporaneous notes or summary notes taken at the meeting thus hindering my opportunity to appeal the decision. 37. Further, [RHM] has breached the implied and fundamental term of trust and confidence which exists in the contract. Mr Harris has subjected me to an unacceptable level of severe harassment over a period of time the effects of which were exacerbated by the failure of the Personnel Department to intervene or investigate complaints. 38. Further [RHM] has behaved unreasonably by insisting on contacting me directly following my absence from work, despite being advised on several occasions that I was depressed and anxious and that direct contact with [RHM] affected my health and exacerbated my condition."
[23]Those paragraphs therefore identify three heads of conduct amounting to alleged breaches of Mrs King's employment contract. Paragraph 37 alleges various continuing, albeit unspecified, breaches of the implied term of trust and confidence. In essence, the complaint was that Mr Harris had harassed her and that RHM had failed to investigate her complaints about it. In her letter of 14 May 2000, Mrs King had in terms referred to the "unacceptable level of bullying and harassment from Mr Harris over a period of time" (almost a direct quotation from her originating application), and had referred to the fact that she had discussed this with Miss Patterson in February 1999, but that nothing had been done. Paragraph 36 alleges that the manner in which the disciplinary process was held in December 1999 constituted a further breach of contract; but although it also refers to Mr Harris, we do not interpret it as in terms alleging that the conduct of that process amounted to a further breach of the implied term of trust and confidence. However, Miss Lule told us, and we accept, that she argued before the tribunal that it did so amount. Paragraph 38 does not expressly allege that the post-21 December conduct amounted to yet further breaches of contract, but the inference is that that is what was being alleged, and the tribunal appears so to have understood it. They found, however, that that conduct did not constitute any breach of contract.[24]Turning to the arguments, Miss Gallafent was critical of every aspect of the tribunal's unusually economical reasoning, and we have to say that we regard the summary, and unreasoned, manner in which the tribunal disposed of the issues before them as profoundly unsatisfactory. But what does appear from their reasons is that they found:(i) that RHM breached Mrs King's employment contract in the five ways listed in paragraph 18;(ii) that RHM committed no further breach of contract in the manner it dealt with Mrs King after 21 December; and(iii) that Mr Harris's alleged continual harassment of Mrs King had not resulted in any breach by RHM of the implied duty of trust and confidence it owed her. Unlike the tribunal's express finding in relation to point (ii), there is no like express finding in relation to point (iii), but we infer that their list of breaches in paragraph 18 of their reasons constitutes the full extent of the breaches of the employment contract they found proved. Moreover, although in paragraph 36 of her originating application Mrs King had alleged that Mr Harris had been "intimidating and unprofessional" at the hearing on 21 December, the tribunal had the benefit of a taped transcript of most of the hearing and (in paragraph 5(13)) found that "the assertions … that Mr Harris acted in a rude and domineering manner were exaggerated and that on the one occasion when [Mrs King] complained about Mr Harris interrupting her, he apologised (which she denied in evidence before the Tribunal)." Again, that is not a comprehensive finding as to the nature of Mr Harris's conduct at that hearing, but it appears to us to be one substantially acquitting him of "intimidating and unprofessional" behaviour; and the tribunal's paragraph 18 findings include no express adverse finding against Mr Harris other than that he had not first fully investigated the complaints.[25]In these circumstances, Miss Gallafent submits that the net result was that Mrs King's case on the facts of this aspect of the case was substantially rejected, and the limit of her success was to prove that, assuming that the disciplinary process was incorporated into Mrs King's contract (which Miss Gallafent was unwilling to concede, but against which she did not seek to argue), RHM's breaches as to the manner in which it was operated between 17 and 21 December 1999 could not rationally be regarded by any tribunal as amounting to a breach of the employment contract which was so fundamental as to constitute a repudiation of it entitling Mrs King to walk away from it. Breaches of an employer's disciplinary process will from time to time occur, and they may result in injustices. But the disciplinary procedure will usually provide (as did RHM's) for an appeal against any disciplinary action resulting from the initial hearing. The whole point of the appeal process is to afford an opportunity of putting right that which may have gone wrong first time round, and the existence of such a process is in part in recognition that things sometimes will go wrong. If things do go wrong at first instance, that cannot of itself, at any ordinarily, be regarded as amounting to a repudiation by the employer of the employment contract of the employee affected by the error. She submitted that, if the tribunal are to be regarded as having implicitly found that the breaches were of a repudiatory nature, their decision was perverse.[26]Reverting to the three sub-heads to this ground of appeal, we say straight away that we are satisfied that the tribunal are to be taken to have found that the breaches were repudiatory ones. It would have been helpful if they could have dealt with the matter explicitly. But, having correctly directed themselves in paragraph 12 that a constructive dismissal claim required proof of a "breach going to the root of the contract or which shows that the employer no longer intends to be bound by one or more essential terms of contract," we cannot accept that they had simply forgotten that by the time they came to say what they did in paragraph 18. In our view, the only question for us on Miss Gallafent's first ground of appeal is whether their decision that the breaches were repudiatory ones was perverse.[27]We did not understand Miss Lule to argue with any great force that a mere breach of a company's disciplinary process will ordinarily amount to a repudiatory breach of an employment contract. The main emphasis in her argument was to the effect that the breaches found by the tribunal in paragraph 18 also implicitly involved findings that they were breaches of the implied duties of trust and confidence. But we are unable to accept that the tribunal made any such finding, either expressly or implicitly.[28]Miss Lule argued further that, in finding that the paragraph 18 breaches amounted to repudiatory breaches, the tribunal were entitled to take into account the direct and serious effect the hearing of 21 December 1999 had on Mrs King's health. They had expressly found that her "major depressive disorder with phobic anxiety disorder arose directly as a result of the disciplinary hearing conducted by Mr Harris on 21 December 1999." RHM's appeal also criticises that finding as being unsupported by evidence, but what does appear to be clear is that Mrs King was severely shaken by the hearing, and Miss Lule emphasised that the evidence showed that she suffered what appears to have been in the nature of a breakdown. She submitted that this factor entitled the tribunal to regard the breach as being so serious as to go to the root of Mrs King's employment contract.[29]We consider that Miss Lule's point has an attractive force. There appears to be no doubt that, for all practical purposes, the disciplinary hearing did bring Mrs King's employment at RHM to an end. It is, therefore, tempting to move from that position to the further one that this was not just a case in which an employer had breached an employment contract by disregarding certain features of its disciplinary procedure. Rather, it is a case in which its breach had the direct, and fundamental, consequence that the employee was unable to return to work, from which it is easy to be attracted to the further conclusion that the breach was one which went to the root of the contract.[30]Miss Gallafent's response to that was, however, that the taking of that last step in that argument would be a step too far. She submitted that, in the case of a breach other than that of the implied duty of trust and confidence, the answer to the question of whether or not it goes to the root of a contract cannot ordinarily turn on the effect it has on the other party. Had the makeup of Mrs King's character been more robust, she might have shrugged the matter off and returned to work on 22 December as normal, in which event the suggestion that the breach of the disciplinary procedure amounted to a repudiatory breach could not easily be made good. The fact that she was not of that makeup, and did not so return, could not of itself give the breach a nature it would not otherwise be regarded as having. The position might well be different if, at the time of the hearing on 21 December, RHM knew that Mrs King's sensitivities were such that to proceed with the hearing in the manner it did might well result in the suffering by her of a breakdown. In that event, so to proceed with the hearing might well amount to a fundamental breach of the contract such as to amount to a repudiation of it, probably because it would also amount to a breach of the implied duty of trust and confidence But the tribunal made no finding that Mr Harris knew or ought to have known of Mrs King's sensitivities. We accept Miss Gallafent's argument, and agree with her that the particular consequences which the events of 21 December had on Mrs King should be left out of account in assessing whether those events constituted a breach going to the root of her employment contract.[31]Even so, we found this issue in the appeal a difficult one, and we reserved our judgment because at the end of the hearing we were provisionally divided on it. On considering the matter further we have, however, come to the unanimous conclusion that we should not accept Miss Gallafent's extremely persuasive argument that the breaches found by the tribunal did not go to the root of the employment contract. As Miss Lule pointed out, the question of whether a breach goes sufficiently to the root of the contract to entitle the employee to walk away is a question of fact for the employment tribunal to decide (see Woods v. W.M. Car Services (Peterborough) Ltd [1982] IRLR 413, paragraph 14). It is no part of the function of this appeal tribunal to substitute findings of fact for those made by the employment tribunal, and we cannot interpret paragraph 18 of the tribunal's reasons as conveying other than that they regarded the particular breaches they there identified as going to sufficiently to the root of Mrs King's employment contract as to entitle her to walk away from it. Unless that decision was perverse, in the sense that no reasonable tribunal could arrive at it, we consider that we cannot and should not review it.[32]We are not satisfied that it was perverse. We have no difficulty in accepting that in many cases a mere breach of a disciplinary procedure will not objectively be capable of being regarded as sufficiently fundamental to amount to a repudiation of the employment contract. But the breaches in the present case were, collectively, unusually serious, and resulted in the hearing of 21 December involving a substantial denial of justice to Mrs King. An employee is entitled to expect his employer to treat him or her fairly, and to respect the disciplinary procedures which provide for such fair treatment. In the present case, RHM effectively tore the rule book up and foreseeably treated Mrs King thoroughly unfairly. Their conduct in fact proved to have a shattering effect on her. But even if, as we do, we leave this out of account, we are nevertheless satisfied that the tribunal were entitled to regard this conduct as foreseeably likely to undermine her confidence in it as an employer and as to their treatment of her. It was conduct which showed they were prepared to ignore certain of the most basic rights she was given by her employment contract. We consider that the tribunal were entitled to conclude that it constituted a breach going to the root of that contract. We decline to find that in reaching such conclusion the tribunal committed an error of law.[33]Miss Gallafent's next point was that, even so, that conclusion helps Mrs King not at all unless her belated resignation on 25 May 2002 was in response to the events of 21 December 1999, or at least unless those events were the effective cause of her resignation. As to that, Miss Gallafent correctly submitted that the tribunal make no express finding to that effect at all. They simply do not address the point. All that they say and find in paragraphs 18 and 20 of their reasons is(i) that Mrs King was constructively dismissed by the five breaches they listed, and(ii) that she did not affirm the employment contract prior to her resignation letter.[34]It might perhaps be said that the tribunal must be taken to have make an implied finding that Mrs King left in response to her treatment on 21 December. In our view, however, that would be an unsafe conclusion to draw because not even in paragraph 12 of their reasons do the tribunal direct themselves that this particular issue is one they needed to address and make findings on: they there ignore the need to identify a causal connection between the repudiatory act and the resignation. In any event, as Miss Gallafent points out, there are further reasons why any such conclusion would be unsafe.[35]First, Mrs King's case was that she had suffered a continuing barrage of breaches of contract, comprising(a) Mr Harris's bullying during an unspecified period down to 21 December,(b) the conduct of the hearing on 21 December, and(c) RHM's unreasonable conduct since then. Of course, the tribunal rejected heads (a) and (c) of her complaints, and upheld her only on head (b). But it is illogical to proceed from that to an automatic conclusion that therefore the effective cause of her belated resignation was the head (b) breach. It could, for example, have been the head (c) complaints, but of course those complaints did not relate to anything that amounted to a breach of her contract entitling her to walk away from it.[36]Secondly, Miss Gallafent submitted that there was simply no evidence entitling the tribunal to make the implicit finding (if indeed they did) that Mrs King resigned in response to the events of 21 December. On this, she pointed out that the chairman's notes of evidence record that down to May 2000 Mrs King was displaying a wish to return to work at RHM and that it was only the receipt of RHM's letter of 23 May 2000 that upset her and caused her to write her resignation letter. Thus, in the course of her cross-examination, Mrs King said:
"1. The letter dated 23 May upset me. I'd asked to be left alone. I was being harassed about seeing the company doctor. My GP advised me not to see the company doctor. I don't think the company doctor was qualified in that field. 2. I highlighted there had been no investigation. I had no faith in a fair hearing. It convinced me I could not go back. I didn't know why they wanted medical records. 3. The letter of 23 May prompted my resignation. 4. Up to 23 May I still wanted to go back."
[37]Miss Gallafent submitted that the correct inference from that material is that it was not the events of 21 December which were the effective cause of the resignation. On the contrary, Mrs King's evidence was that she wanted to return to work. What changed her view was the letter of 23 May, which was an example of the post-21 December allegedly unreasonable behaviour of which she had complained, but which did not constitute a breach of contract.[38]Miss Lule's response to this was that it was implicit in the tribunal's reasoning that they had found as a fact that Mrs King did resign in response to the events of 21 December, and that, to the extent that Mrs King might have suggested otherwise in her evidence, we should infer that the tribunal declined to accept that evidence.[39]We have found this another troublesome aspect of this appeal. The problem is that the tribunal simply failed to direct itself as to the question it was required to answer, and failed to make the necessary findings of fact to enable it to be answered. There was, in short, a complete mistrial on this point. We cannot make our own finding on the matter, because that is not our function. We take the view that, because of this gaping chasm in the tribunal's decision, we have no alternative but to allow the appeal and to remit Mrs King's constructive unfair dismissal claim for a re-hearing.[40]That makes it strictly unnecessary to consider Miss Gallafent's further grounds of appeal, but we will refer to them briefly. Her next ground was as to the tribunal's finding that "in view of [Mrs King's] mental impairment after 21 December 1999" she did not affirm the employment contract prior to her letter of 25 May 2000. The point there is that it is said there was no evidence, from Mrs King or anyone else, that her mental condition after 21 December 1999 resulted in her having to delay for five months the decision as to whether or not to resign.[41]Miss Lule submitted the contrary. She identified various features of the oral evidence which she said pointed to the conclusion that Mrs King was simply unable to cope after 21 December; that she wanted to sever all contact with RHM, to the extent that she would hide behind the sofa when they telephoned; and that she engaged ELUK to try and stop any further contact. She said the report from Mr Philip King (the counsellor) supported this, pointing out, as it did, Mrs King's inability to cope and her wish to remain at home and escape the world. She referred also to the psychiatrists' reports which were before the tribunal. They do not provide material which expressly supports the tribunal's conclusion, but Miss Lule submitted that, collectively, there was evidence before the tribunal on the basis of which they could make the decision they did and this appeal tribunal could not go behind their finding.[42]We again view the way in which the tribunal dealt with this point as unsatisfactory. It was simply not good enough to deal with a difficult issue such as this in the unreasoned way they did. They did not identify the nature of the particular mental impairment which they held precluded Mrs King from making a decision on the point, nor did they identify what had changed by 25 May so as to enable her to make one. We would, in particular, have been interested to know what view, in this particular context, the tribunal took of Mrs King's letter of 6 January 2000. As it is, the tribunal ignored it.[43]We are, however, sensitive to Miss Lule's submission that, provided that there was some evidence justifying the tribunal's decision on the point, then it is not for this appeal tribunal to intervene, and we are provisionally inclined to conclude that there may have been just about sufficient evidence. If the outcome of this appeal turned on this ground, we consider it would be finely balanced as to whether it should succeed or fail. But as there is to be a re-hearing on all issues arising in the unfair dismissal claim, we propose to say no more about it.[44]That brings us to Miss Gallafent's last ground of appeal, namely that there was no evidential basis for the tribunal's finding that the hearing on 21 December 1999 was the direct cause of Mrs King's major depressive disorder with phobic anxiety disorder. This ground went to a finding of potential relevance in relation to the remedy hearing, but was not of direct relevance to whether the tribunal was correct in law to conclude that there had been a constructive dismissal. Since the tribunal's decision on liability is to be set aside, and there is to be a re-hearing, we have concluded that we ought not to express any views on this issue. It will be for the tribunal conducting the re-hearing to make any necessary findings of fact on it.[45]The result is that we allow RHM's appeal and set aside the tribunal's decision that Mrs King was constructively unfairly dismissed by RHM. We will remit Mrs King's unfair dismissal claim for a re-hearing. We will so remit it to be heard by a differently constituted tribunal. In doing so, we make clear that we are not to be taken as implying that the same tribunal could not approach the re-hearing fairly and impartially. We have no doubt that they could and would. We do so because we consider that this is one of those cases in which the appearance of justice will be better served if the case is dealt with by a different tribunal.