LAND SECURITIES TRILLIUM LIMITED v MS J THORNLEY [2004] UKEAT 0603_04_2806

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0603_04_2806Case No Appeal No. UKEAT/0603/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LAND SECURITIES TRILLIUM LIMITEDAPPELLANTMS J THORNLEYRESPONDENT
Before
Mrs Justice CoxSir Alistair Graham Kbe Baroness M T ProsserDate 28 January 2005
[1]APPEARANCES For the Appellant MR TOM LINDEN (of Counsel) Instructed by: Messrs. McDermott, Will & Emery Solicitors 7 Bishopsgate London WC2N 3AQ For the Respondents MR STUART BRITTENDEN (of Counsel) Instructed by: Messrs. Thompsons Solicitors Congress House Great Russell Street London WCIB 3LW SUMMARY Unfair Dismissal Unfair constructive dismissal of an architect where the Employment Tribunal found that changes in her contractual duties required by her employers had the effect of deskilling her as an architect and amounted to a fundamental breach of contract entitling her to resign. Employment Tribunal Decision upheld on appeal. THE HONOURABLE MRS JUST1CE COX Reserved Judgment In this matter the respondent employers, Land Securities Trillium Limited (the Appellants), appeal from the Decision of a Central London Employment Tribunal, promulgated on 7 May 2004, upholding the Applicant's complaint of unfair constructive dismissal. The Applicant is by profession an architect and she was employed in that capacity for some twelve years until she submitted her resignation in protest at her treatment on 13 February 2003. The Appellants' primary contention is that the Tribunal misconstrued the Applicant's contract of employment in concluding that the Appellants were in fundamental breach; they also contend in this respect that a number of the Tribunal's findings were perverse. The Appellants further complain that the Tribunal erred in finding both that the reason for the Applicant's dismissal was redundancy and that her dismissal was unfair; and in deciding to award her£76,032.73 as compensation.[2]The Applicant resists all the grounds of appeal save, in part, those grounds which relate to remedy. Her case is that this was a detailed, well-reasoned decision and that the Tribunal did not err as alleged in concluding, as they were entitled to on the evidence, that the Applicant was unfairly constructively dismissed. The principal and interesting issue raised by this appeal is whether the terms of the Applicant's contract permitted the changes in her duties which the Appellants required of her, but which the Applicant contended, and the Tribunal found, would have the effect of deskilling her, professionally, as an architect. The Facts[3]The Tribunal heard evidence over five days from the Applicant and two officers of her trade union BECTU, Gerry Morrissey and Willie Lesslie; and from Norman Lucey, Associate Architect, Keith Shields, Managing Director Services Group, and Adrian Goldacre, Human Resources Executive for the Appellants. They found the following relevant facts, which we shall either summarise or incorporate in full into this judgment, as appropriate.[4]The Applicant was originally employed as an architect by the BBC in its Construction Management Department (CM) in October 1990. She was engaged initially as a Project Leader in the Architecture and Civil Engineering Department (ACED) and in 1992 she was promoted to the post of Senior Project Leader, but in practice she was always called an architect and she always carried out the duties of an architect. Her specialist expertise is in the design and construction of broadcast studios. On 12 November 2001 a substantial part of CM, including the architects, was transferred to the Appellants in accordance with the Transfer of Undertakings Regulations.[5]Clause 1 of the Applicant's contract states, materially, as follows:
"You will perform to the best of your ability all the duties of this post and any other post you may subsequently hold and any other duties which may reasonably be required of you and will at all times obey all reasonable instructions given to you."
Her duties were set out in a job description dated 7 January 1988, which she worked to from the time of her promotion to the senior position in 1992. This document was entitled "Role Specification, Senior Project Leader ACED". It set out her main duties, all of which she carried out save those referred to at paragraph (d), which were carried out by a quantity surveyor; and those at (i), which she was not in fact required to carry out but which she accepted she could have beep asked to perform., The Tribunal summarised these duties at paragraphs 12 and 13 of their Decision but, in view of their importance in this appeal, we shall refer to them in full:
"Aims of the Job To undertake, within the framework of Departmental and Corporation procedures the overall design, planning and management of major projects which pose particularly complex problems; the monitoring of consultants; the control of Design and Build contracts; all dependent on the procurement method selected by the Department's management. Main Duties (a) The post holder will be nominated Project Leader, or ACED Co-ordinator, for major and important projects or for a number of interrelated projects. (b) Liaison with the Users and other Directorates to ensure that all relevan1 factors affecting the project are discerned and evaluated. (c) Responsible for the preparation of feasibility studies, outline designs, budget estimates and target programmes for the implementation of capital projects. This aspect is particularly important when a project is ultimately to be handled by consultants. (d) Responsible for estimating costs, including obtaining contributions from other Departments and assisting in progressing the project to financial authorisation. (e) Responsible for the co-ordination of 'the efforts of other contributing Departments, consultants and contractors in executing the project to agreed cost and time targets. (f) Responsible for maintaining control of project funds and advising on the possible financial and time impacts of User variations and ensuring that these receive appropriate financial authorisation in good time during both the development and execution stages. (g) Responsible for keeping Senior Management informed of the state of the project and drawing attention to possible problems that may impact on project cost or· progress, or the Corporation's overall plans. (h) The post holder may be the Corporation's leading expert on a specific area of building and engineering work on broadcasting facilities (eg acoustics) and will maintain contact at the highest level with industry, consultants and advisor committees. (i) The post holder may control these aspects of a Group's work which call for a measure of standardisation throughout the Corporation and will act as the Departmental contact on such matters seeking senior advice on matters of policy. This aspect may involve the development of new expertise rather than project responsibility. (j) The post holder will be responsible for staff allocated to him eg Project Leaders, Architects and Engineers. Required Knowledge and Expertise He/she should satisfy the requirements for Corporate Membership of an appropriate professional Institution. The post holders should have a deep understanding of the requirements of broadcasting building facilities. He/she must have considerable experience of substantial capital project works and be able to communicate and motivate a range of professional staff, consultants and contractors. This calls for qualities of diplomacy and . management skills of a high order."
[6]The appropriate professional institution was, in the Applicant's case, the Royal Institute of British Architects (RIBA); and its standard form of agreement-for the appointment of an architect .contained the main duties' which an architect can be expected to undertake. These are "work stages" A-L and each stage is sub-divided into a number of tasks. A project that requires the architect to carry out all the work stages is referred to as "full service". Architects view a full service project as one in which their involvement is "hands-on" from inception .to completion. There was no dispute, however, that an architect who specialises only in some of the work stages is nevertheless still perfom1ing the role of an architect. The parties agreed that the relevant work stages in this case were those set out by the Tribunal at paragraph 16 at follows:
"Preliminary services: A Inception - discuss the client's requirements including timescale and costs, give general advice on how to proceed. B Feasibility - carry out studies to ascertain the feasibility of the client's requirements Basic services: C Outline proposals - with other consultants, analyse the client's requirements, prepare outline proposals and an approximate cost for preliminary approval. D Scheme design - with other consultants, develop a scheme design, prepare a cost estimate, give possible start and completion dates. The scheme is designed in sufficient detail to allow the client to agree the spatial arrangements, materials and appearance. Make where required a planning application. E Design detail - with other consultants develop the scheme design, obtaining the client's approval for type of construction, qualify of materials, coordinate any des.ign work done by consultants, specialist contractors, sub contractors and suppliers, obtain quotations in connection with specialist work. Carry out costs checks where necessary, advising the client of the impact of any subsequent changes on the cost and programme. Make applications for building control and other statutory requirements. F & G Production information and bills of quantities - with other consultants, prepare production information including drawings, schedules and specification of materials and workmanship; provide information for bills of quantities, information completed in sufficient detail to enable a contractor to prepare a tender. H Tender action - advise and obtain the client's approval to the list of tenderers. Invite tenders from approved contractors, appraise and advise on tenders submitted. J Project planning: - advise the client of the contractor and the responsibilities of the client, contractor and architect under the terms of the building contract and arrange for it to be signed by the client and the contractor; provide production information as required by the contract. K Operations on site - administer the terms of the contract during operations on site; visit the site as appropriate to inspect the progress and quality of the work; with other consultants make regular financial reports to the client including any variations on the construction cost. L Completion - administer the terms of the contract re)ating to the completion of the works; give general guidance on maintenance; provide the client ,with a set of drawings showing the building services."
[7]Over the two years before the decision to "outsource" the CM Department and the transfer to the Appellants, the number of CM staff at the BBC had been reduced. These reductions included the architects, whose numbers fell from 20 to 12. The inevitable consequence was that fewer building projects, especially large ones, could be carried out by !n- house staff as full-service projects, so that an increasing number were contracted out in part to external consultants, or as "design and build" projects, that is where external contractors carry out all but the initial design stages.[8]The Appellants made it clear from the early stages of their transfer negotiations with the BBC that they intended to restructure the CM Department within six to nine months of the transfer. The architects all expressed their concerns to Mr Lucey and to management via their BECTU representatives. Rapidly evolving materials, technology, design and contractual arrangements mean that an architect's specialist knowledge can quickly become obsolete. The architects all feared that, with too few of them to carry out substantial, full-service projects, they would become little more than managers of external consultants and would soon become. deskilled in the hands-on work of an architect. Thus, if they had to seek fresh employment outside their specialism, they would have little to offer. The union sought and obtained from the BBC and the Appellants at a formal BBC National Joint Council meeting an express assurance that the transfer would not affect the quality of the work undertaken by the architects.[9]Until April 2001 this trend away from full-service projects did not affect this Applicant's work, although she shared the architects' concerns. Of seven projects assigned to her between 1994 and April 2001, when the Bm conversion of premis.es for BBC London finished, she carried out a full-service on five of those projects, - with an average value of £1.66m. One of the others was a smaller project undertaken in a gap between the larger ones. She was involved only in -the ,early ·work stages of the second because she was too busy with the other projects so that it was completed as design and build. In addition, she carried out other smaller projects whilst engaged on the larger ones.[10]The Tribunal did not accept Mr Lucey's evidence that delegation to external architects of any task in a work stage did not mean that a project was not full service. They found that, in order to be full service, it was not necessary for every task in every work stage to be carried out. Not every project would require a planning application or specialist consultants for example. They preferred the Applicant's evidence that she always carried out a full service, save that it was necessary, occasionally, to use specialist$ for particular items. In those cases the Applicant herself decided whether specialists were needed and if so who they would be. Furthermore Mr Lucey accepted that before the transfer there was sufficient work for the architects. to do full service and that all of them had the opportunity to carry out full service. The Applicant in fact had more opportunities than most of the other architects because of her particular expertise, one consequence of which was that she was the one who carried out the full service projects. The Tribunal found that the Applicant was regarded as "especially able".[11]Having considered the evidence relating to the Applicant's duties, the Tribunal held as follows at paragraphs 22-23:
"22. The Tribunal took into account that the Applicant's first duty was to be project leader or ACED coordinator for "major and important" projects. Furthermore, the first "aim of the job" was to undertake the "overall" activities necessary for "major projects" .. We took into account as well that, although the specification did not appear expressly to require her to undertake all RIBA work stages, she was instructed almost invariably to undertake them. The "procurement method" selected by management for the projects she was selected to lead was very largely the full service method. 23. Given the terms of the specification, the depth of her expertise and experience, and the work she was actually assigned at the BBC, we found that her principal contractual duty was to lead on large or complex projects in which she would have a hands-on role from inception to completion. Although the BBC could, and on occasions did assign her to projects. that fell short of that role, the parties intended those projects to be a secondary or subsidiary part of her work. Alternatively, we found the duty was incorporated into her contract by custom and practice. At the time the parties entered into the contract, they must have intended to incorporate such a term, which did not contradict the express terms, and was required in order-to give business efficacy to the contract. In the absence of such a term, the BBC may not have been able to require the Applicant to undertake those projects. Such a term, furthermore, was reasonable and, by the parties' conduct over a substantial period, it was established, well known, and certain."
[12]After completion of BBC London the Applicant was assigned to BBC Norwich, a·£1.5m project. However, her assigned tasks were only those in work stages C and D and the other' stages were carried out by external architects. All that she was doing was, in effect, talking to the consultants, and the Tribunal found that this was a very unsettling time generally for the architects. All of them were concerned about the quality of the work they would end up with after transfer. The BBC at this time were talking to six different companies about the takeover of the CM Department. In May 2001 the Applicant wrote to the head of the Property Group to ask that she be made redundant. She did this because she hoped to trigger a discussion about BBC Norwich and about her concems generally over the work coming into the Department. She was not the only employee in CM to request redundancy at this time, although she was the only architect to do so.[13]By an agreement entered into between BECTU and certain employers, including the Appellants, the employer will not make an employee redundant unless the content of that . employee's work will change by more than 50%. The evidence was that, in order to evaluate any change, the union and the employer "look at what people are doing at the moment and compare it to what they will be doing in the future". If the change is more than 50% then the employee can be made redundant, whereby she or he will be entitled to an enhanced, contractual redundancy payment. Mr Morrissey of BECTU described the exercise as involving "a fair amount of subjectivity" but said that there is normally broad agreement. At paragraphs 5 to 7 the Tribunal indicated how this evidence would impact upon their decisions in this case as follows: "5 That way of deciding on a redundancy does not wholly accord with the statutory definition, and there was no evidence that the BECTU agreement was incorporated into the Applicant's contract of employment. In fact the contractual redundancy agreed statement simply recites the statutory definition as its own. Nevertheless, the parties acted in accordance with the agreement throughout the events leading to the Applicant's resignation, as if it were a contractual term, and they premised their evidence and arguments upon it before the Tribunal. We took into account as well that it is more advantageous to employees than are the statutory provisions. 6 In the circumstances, the Tribunal took the view that the 50% question was irrelevant to determining whether any variation by the Respondent of-the content of the Applicant's work amounted to a fundamental breach. The issues were whether the disputed content was contractual and, if so, whether any variation of it by the Respondent amounted to a fundamental breach. 7 However, in fairness to the parties, when we considered whether the Applicant may in fact have been redundant, as she contended, we did so in accordance with the terms of the BECTU agreement. Thus the issue for determination was whether the Respondent varied the content of the Applicant's work by more than 50%, because its business requirements for her to carry out the unvaried work had diminished. On everyone's view, working out the percentage change had to be a fairly subjective exercise, and we bore in mind Mr Youngson's frank acknowledgement on behalf of the Respondent that our decision on the point was likely to be a matter of "impression[14]In his evidence to the Tribunal Mr Lucey had described what he regarded as the historic attitude to redundancy adopted by BBC employees, namely that they should get redundancy if they are unhappy, regardless of whether or not a redundancy situation exists. The Tribunal however were not persuaded that that attitude was widespread and they rejected any suggestion that that was the "attitude of this Applicant. At this time? in the spring or early summer of 2001 and before a preferred bidder was chosen by the BBC, Mr Lucey had not considered the question whether the architects may in fact have been redundant because their employer's needs for employees to do the work they were doing had diminished by more than 50%, or at all. Moreover the Tribunal held that such employees in well-paid, highly specialised employment would not lightly seek redundancy, because of the anxiety that they could not be readily redeployed or engaged in fresh employment. The BBC' s redundancy provisions, including the B~CTU agreement, were specifically designed to give employees extra protection against dismissal for redundancy. In particular they found that the Applicant feared that, having spent most of her working life in a fairly narrow specialism, she would have difficulty securing fresh employment. It was plain in addition that she was very interested in and enjoyed her work at the BBC. She was not unhappy before she perceived that the content of her work was contracting, by reason Of the changed procurement practices arising from the substantial reduction in the number of CM architects.[15]A BBC briefing paper prepared in June 2001 before the transfer referred to the fact that the full workload currently carried out by the Construction Management team across the UK would transfer to the partner, together with the people currently employed within the CM team. It stated that there were "unlikely to be any guarantees on workload and the Partner will therefore be required to bear- the risk associated with future fluctuations in workload." The Tribunal found that the Appellants' requirements for the full range of expertise amongst the architects would in future be reliant on workload.[16]What this meant in practice for the architects, and for the Applicant in particular, after transfer was set out by the Tribunal at paragraphs 30 and 31:
"30 After the transfer in November 2001, the Applicant was not assigned any full service projects. The Respondent had framework agreements with external consultants, and typically used those for all but the early work stages. The financial value of her projects declined significantly, to an average of £0.58m, although a £7m project, for which she did work stages A-D before it went to external architects for detailing, was cancelled. Her time sheets show that her time was not being fully utilised. She said that, insofar as she was appointed as lead designer, she did only the scheme design, and that she had no real control over the detailing, as she would have had at the BBC. She said, "
If the external architects came up with detail I wouldn't do, I couldn't change it." She was not the only architect affected. The number of BBC projects coming into the department was significantly fewer than anticipated before the transfer. Furthermore, the team were not assigned to any other work in the Respondent's very large property portfolio, although they had been assured that it was likely to be available. 31 Mr Lucey gave evidence that had the Applicant not resigned, one of the projects to which she was assigned was full service, and on another three she would have worked "from inception to completion". That was contrary to the Applicant's evidence that the projects she did for the Respondent were in fact carried out, after the initial stages, by external consultants. On two projects, she was assigned at stage K. It did not appear necessary for us to decide this dispute. Our task was to examine the position at the time of the Applicant's resignation. There was no dispute that, at that time, she had not undertaken any full service project Furthermore, she did not believe the Respondent's assurances that its intention was for the architects to undertake the full range of architectural duties."[17]In March 2002 the architects produced a document in which they expressed their anxieties that the Appellants had no real commitment to the future "development of CM as a design practice that may grow and expand as a result of the huge Property Portfolio under LST management; and that there had been no communication with CM staff as to the strategic role they would play in future. They identified as a "major concern" that, instead of continuing to be project co-ordinators, they would become purely project managers; and that the Appellants erroneously assumed that project management was what architects did. They pointed out that, in the construction industry, project management is recognised as a distinct role. As BBC architects they designed a project and administered the contract, which naturally involved some management functions, but they were not project managers. They asked for greater involvement in the projects to. which they were assigned and for greater emphasis on the quality of design. They expressed the hope that there would be an "active debate" with management to resolve the issues.[18]There was no response from the Appellants at the time but Mr Lucey's response in his witness statement to the Tribunal was essentially that "co-ordinator" and "manager" were in practice synonymous. He accepted, however, that a "project manager" is a distinct specialism and an academic qualification in the construction industry, and that the BBC did 'not employ such specialists. He stated that someone involved in the project took on that role, usually the person leading the most important element of the project, and he believed that the Applicant had taken on this role on a number of occasions. At paragraph 35 the Tribunal stated:
"35 It appeared to the Tribunal that Mr Lucey perhaps missed the point of the architects' anxieties. The Applicant did not deny that, in the course of a full service project, a number of tasks were managerial in nature, and her role specification and the RIBA list show it to be the case. What concerned the architects is that they perceived their duties for the Respondent were becoming wholly or largely management duties, that they were no longer "someone involved in the project" as an architect, but as a manager of architects. The Applicant's unchallenged evidence was that, if she was not involved in work stages E-H, detail design, product information, tender action and project planning, then her specialist knowledge and skills would soon be obsolete. Furthermore, coming in only at stage K. contract administration, would be difficult because she would not [be] sufficiently familiar with the requirements of the particular contract."
[19]In March 2002 the Appellants undertook their review and produced proposals for restructuring the department, which were devised by Roger King, CM Director for the BBC contract. They were published in July 2002. The objectives for the new organisation included the following:
"Effective use of skills and experience within the workforce and appropriately designed posts to deliver contractual requirements; an optimum balance between the use of in-house and external resources to best provide the range of services demanded by the customer; an appropriately sized team with the ability to respond to fluctuations in work load."
The "key aims" included allowing designers "to respond quickly to changes in volume and a range of customer demands". The "structural considerations" for the proposals included the following:
" ... The almost total reliance on in house staff based in London has limited the breadth and responsiveness of the service provided to some customers. The new structure will separate Project Delivery from Project Design ... A reduced number of Associates will lead teams undertaking the full range of design work and will focus on design concepts at project inception, specialist design, design control, contract administration as well as delivery of single discipline projects .. Design will be undertaken by in house teams or external consultants depending on the location and nature of the work. Contract administration will be undertaken by either the Design or Delivery teams."
[20]The Tribunal found that the effect on the architects would be the reduction of their number by half, that is from twelve to six. Only the architectural team was to be reduced so substantially. The two architects on-short-fixed term contracts would automatically be made redundant and then,' in the first instance, volunteers for redundancy would be sought "on the basis that it is a prerequisite that the team retains a skill base that is balanced in its capability and retains a strength in broadcast design, concept design and contract administration." Mr King set out the Appellants' view that "the teams currently undertake repair/replacement design, new works design, project management and contract administration." The proposals anticipated that "a range of appropriately skilled external consultants will increasingly be' used ... appointed on a project by project basis." The new structure was to be fully implemented by 31 January 2003.[21]After the proposals were published the consultation process with BECTU began, with Mr Lesslie representing the Members. The architects, including the Applicant, were contending that the work they currently undertook was more extensive than that set out in the proposals and that, with only six architects retained, it would be impossible for them to undertake all their architectural duties. Their concerns included the view that their role in future would simply be managing the process of building design procurement and monitoring the work of external consultants, with no more than a few "titbits" of design work added, to compensate them for having lost the far more interactive design role in which they had hitherto been employed, notwithstanding the earlier downsizing. The Tribunal found that these concerns were repeated at every opportunity throughout the consultation process. In his evidence Mr Lucey accepted that, with six architects, it would not strategically be possible to carry out as many full service projects as with twelve architects; and that at least half of the Appellants' projects were currently being undertaken by external consultants.[22]The first joint consultation meeting was held on 19 August 2002, when Mr King explained that his main aim in the proposals had been to ring fence the design requirements and separate those from the delivery of projects. He saw a continuing need for the conception to completion architectural role in the case of some projects, but the larger projects would in future probably be run by external consultants, or by a mixture of both teams. The reduced numbers he said "were an assessment of the impact of the future business model as well as steady-state work load expectations". Mr Lucey accepted in evidence that the proposals meant that design would be kept in house and that the rest of the work stages would go to external consultants. He said that they felt that all members of the in-house team would be involved in inception and feasibility, with greater emphasis on ~ar1y stages, ?ut ~ith external consultants at the later stages. He contended that this was not a strategic change or a "step change" because .. the trend had begun before, the transfer. However, the Tribunal found that, so far as the architects were concerned, their worst fears had been realised. Essentially, under these proposals, they would no longer be working as architects but as managers of architects.[23]In August 2002 Mr Lucey created a confidential document entitled "Construction Management - Architecture and Building Design Team Working Strategy". In this document he set out how he envisaged the new restructured department working, and he identified the architects' key functions as follows: "1 Full Service: "Where strategically necessary." 2 Inception. Where necessary to provide strategic advice at the outset. 3 Feasibility: where necessary to undertake studies to resolve options… 4 Presentations: necessary reports and presentations as required. 5 Design audits: as a team, undertake the necessary design audits at key stages. 6 Design standards: to establish, maintain and implement them. 7 . Specialist advice: as necessary on technical matters, e.g., procurement, contracts, construction failures. 8 Troubleshooting: As required, investigate problems and advise." This list was not fully inclusive but was said to give "an indication of the core functions and skills required". The goal was said to be "the marriage between design and business; .. a redefinition of the team's core skills and obligations ... " The Tribunal found that this strategy paper was not distributed until December 2002 and was then distributed only to the six retained architects.[24]During September a written response by Mr King to address the architects' concerns failed to reassure them. It was agreed at a meeting on 18 September 2002, which the Applicant was unable to attend because she was on leave, that new role specifications would be produced for the architects, so that they would have an opportunity to "express preferences against these"; and that a system would be set up to enable individual employees to ask questions about the restructuring. On 1 October the Applicant had a meeting with Mr Lucey, at which she explained that she did not consider that she would be fully involved in the complete design process following restructuring, and that she thought her position was therefore redundant. She wrote to him the following day expressing the view that her professional expertise was being dissipated by lack of involvement in brief development, design, detailing, contract administration and handover; and that, without this hands-on working, she was becoming deskilled, so that she would· find it difficult ever to obtain fresh employment. She restated her belief that her job was redundant and said that, unless the Appellants could confirm that the position and role for which she was originally employed, and to which she remained fully committed, was still available "I can see no position for me withjn the proposed structure".[25]On 23 October Mr Lucey, with input from Mr King, produced a formal job specification. The Applicant's title would change from "Senior Project Leader" to "Senior Architect". He set out the main duties and responsibilities in thirteen bullet points, which the Tribunal summarised at paragraph 54:• "To be a professional architectural specialist with a proven and demonstrable track record in a specified area of architectural expertise.• To contribute to management and resource planning of architectural expertise and advice.• To ensure standards of conduct, workmanship, quality and health and safety.• To be a source of expertise.• To assist the Associate in selection and monitoring of consultants.• To assist the Associate in drafting policy on methods and standards.• To contribute to health and safety within the organisation.• To be the lead designer for defined projects and coordinator for specified projects.• To maintain contact with industrial, commercial and professional bodies.• To ensure contract documentation is prepared so as to minimise dispute.• To assist the Association in selection and training of new staff .• Any other duties considered, by the Associate to be consistent with grade and general responsibilities of the post.• To undertake a full range of professional architectural functions. This point was followed by the list of functions in Mr Lucey's confidential August document set out in paragraph 48 above. The one change was that Full Service was moved from 1) to 8)." The new list of functions was therefore as follows:
"1 INCEPTION: Where necessary, to provide strategic architectural advice including design concepts at the outset of a scheme to ascertain that the project is correctly defined, the brief clearly resolved and the correct architectural resource appointed. 2) FEASIBILITY: Where necessary to undertake various design studies to resolve options and clarify the clients' intentions, aspirations and requirement. This will include the preparation of design proposals, analytical problem solving balanced with professional experience and knowledge of the clients business. 3) PRESENTATIONS: Prepare necessary reports and presentation materials as required. 4) DESIGN AUDITS: To undertake the necessary design audits at key stages to ascertain the brief, design and best practice have been met. 5) DESIGN STANDARDS: To establish, maintain- and implement design standards for all construction work both internally and externally in accordance with industry best practice. 6) SPECIALIST ADVICE: To advise as necessary and required 011 technical matters within the discipline, e.g. procurement, contract advice, construction failures etc. 7) TROUBLESHOOTING: As required to investigate problems and advise at any stage in the construction process including post-contract. 8) FULL SERVICE: Within set criteria undertake full professional architectural service where this is strategically necessary on business, broadcast, criticality or professional grounds. The high level of interaction with the client during implementation will underpin the professional - skill base. "
Following the list of functions was a list of seven specific health and safety responsibilities.[26]The Applicant accepted that the duties in the new job description could be done by architects and further that, in the course of a full service project, she would do some and might do others. However, her evidence, accepted by the Tribunal, was that the whole emphasis of her job had changed to that of a managerial role; and that her new duties were "at a remove" from the hands-on architectural work which she had previously undertaken. In her experience of working for the Appellants, being the "Lead Designer" did riot mean that she designed the project because functions (1) and (2), Inception and Feasibility, were leading not to designing the project but to presentations and managing external architects .[27]In October the Appellants asked for volunteers for redundancy and the majority of the architects volunteered. A joint consultation meeting took place on 15 October, for which the architects had prepared a written response to the new job specification. It opened with a "Statement of Declaration" that "all twelve posts are in fact redundant". It then set out the reasons for that statement, which included a repeat of the concerns they had been expressing throughout the process. They denied that their proposed new roles were the same as those for which the architectural staff had been employed at the BBC. They considered themselves in dispute with the Appellants.· Mr Goldacre of the Appellants indicated that the document would be carefully considered. Mr Lesslie of BECTU told the Tribunal that he found himself in the extremely unusual position of arguing that his employee members should be made redundant, when his customary role was to argue to the contrary. In order to respond to the architects' report Mr Goldacre asked Mr Lucey to produce an assessment which he could give to BECTU, the purpose of which was "to back up my assertion that there would not be a significant change in job duties as a result of the restructure". Mr Lucey then created a chart, which was the subject of considerable dispute at the hearing. His evidence was that, at the time, he did not know about the 50% criterion.[28]The problem with the chart was that it compared the first twelve bullet points in the new job description with nine duties set out in a draft job description dated 1991. However the Tribunal found on the evidence that the Applicant was working to the 1988 job description at the time of transfer, so that the chart did not address the relevant comparison which was necessary in order to assist them in determining the issues. They found that, if he had compared the new post against the 1988 specification, including the Applicant's duty to carry out full service projects, it was likely that he would have arrived at different figures. Further, his method of comparison was to set out the respective duties side by, side and then estimate the percentage content of the existing post and the new post so as to calculate the variance. The difficulty was that the percentage~ he used were not based on his assessment of the time or effort expended on a duty but on "value judgments", in respect of which he had had no documentation in support. The Tribunal found in addition that it was plain that he did not consult the other architects; and they found that he had not been able to explain his analytical method satisfactorily. Furthermore he never explained to the architects, or to BECTU, the basis of his figures .. In fact no one told the architects even by whom the chart had been devised, so that they did not have the opportunity to discuss it with the author.[29]Mr Lucey concluded, in the event, that there would be a 25% change in the Applicant's duties. At paragraphs 63-66 the Tribunal analysed in detail the evidence relating to this conclusion and to the Applicant's response. She produced her own chart to the Tribunal, which was also in dispute at the hearing. The Tribunal found, having considered the, competing arguments, that the Applicant's method was "a more intelligible and reliable way to examine the issue." Nevertheless, they decided that in order to determine if there had been a material change of role, the comparison they had to make was between the content of the new and the 1988 job descriptions. They bore in mind their finding that the 1988 job description included "the Applicant's principal duty to carry out major, full service projects."[30]Their findings, which are important in this appeal, were set out at paragraphs 68-71:
"68 After detailed consideration, we found that the duties in the new job description were substantively different from those in the old one. Where the old description made the Applicant "responsible" herself for carrying out or assigning the various tasks, the new description required her to "contribute" to a tas~, or to "ensure" that a task was carried out properly, or to "assist" the Associate in carrying out a task. We found further that, as the Applicant contended, the duties generally, although an architect might ordinarily discharge them, appeared substantially managerial in nature. The hands-on duties appeared to have been largely omitted. We did not overlook that the old description required the Applicant to undertake illter alia the " ... management of major projects", but we found that, in the context of her contractual work at the BBC, her managerial tasks were carried out when necessary in the course of her full service role; managerial tasks were not the substance of her role. 69 It appeared to us that Mr Lucey had, on business criteria rather than on consideration whether or not the Respondent was entitled to vary the Applicant's contract in such a way, selected certain tasks from the many, set them out as "main duties", and omitted the remainder. We found that he thereby transformed the Applicant's contract from one that required her principally to undertake all the hands-on tasks of major projects, to one that required her to undertake only the specified duties, and we bore in mind that "any other duties" got 0% on both sides of Mr Lucey's chart. It appeared that if the Applicant had been so minded, under the new contract she might have refused to undertake more than a very few large, full service projects, she could have relied on the Respondent's representation that large projects would be carried out by external architects, on the placement of full service at number eight on the list of functions, and on her description as lead "designer"
. We noted too that the Respondent never explained or set out what were the "set criteria" for carrying out full service projects, nor when it might be "strategically necessary" to do so, nor did it expand on what the "defined projects" might be on which the Applicant would be lead designer. Such terms might mean anything or nothing. In any event, they do not indicate that the Respondent intended the Applicant to be regularly working hands on. 70 Further, where the new job description required her to be the lead designer, the old one required her to lead on major fuIl service projects, and we noted the Respondent's intention that the architectural team would "emphasise" inception and feasibility, with larger projects being carried out by external architects either alone or together with the in house team. We took into account the Respondent's intention that the design function should "not become eroded by requiring all staff to undertake all functions". We took into account that the "full range of professional architectural functions" set out in the new description do not appear to reflect the full service duties in the RIBA list, and that "Full Service" appeared last on the numbered list. No duty in the new description appeared to require the Applicant to undertake work stages E-H, and it was just those omissions about which the Applicant complained. It did not appear to us on the evidence that a lead designer would be responsible for detailing, production information, tender action and project planning, and it was undisputed that the Applicant had done no such for the Respondent. We noted in particular that the Applicant's and Mr Lucey's tables agreed that design and construction should get the highest percentage, whether of effort or share of responsibility, under the old description, whereas lead designer got the highest percentage under the new in Mr Lucey's table. 71 Moreover, the duties numbered 3) through 5), and 7), appeared to us to have no equivalent, as distinct tasks, either in the old job description or the RIBA list. They were tasks an architect might carry out in the course of a full service project, but they were not the substance of any duty in the description on the list. We took into account as well the Applicant's undisputed evidence that, if she were not involved in work stages E-H, the duties at 4) through 7) would become progressively more difficult as she became progressively out of touch with developments in her field. We found that, if the Appellant worked to the new job description in the way proposed, she was likely to become deskilled in the way she contended. The new job description set out a different role to the one she performed in accordance with the old description."[31]On 29 October-a further joint consultation meeting was held to respond to the architects' report. The Tribunal found that Mr Goldacre and Mr King based their arguments on Mr Lucey's chart, although not referring expressly to it. Mr Goldacre informed the architects that the senior role change amounted to approximately 25%, according to "a documented analysis". Mr King did not accept that the reduction in numbers would mean a reduction in the breadth of work covered by the in-house team. He stated that the new job descriptions covered the full range of the many roles within the architect function, from design through to management of works. In stating this view he was basing his arguments on Mr Lucey's advice. He accepted however that "the aspirations of the architects to do the full range o£ work had not necessarily been realised since transfer." The architects then sought further clarification because they considered that there was no information as to how things would work in the future and no reassurance from the job description. Mr Lesslie stated that, if the Appellants did not accept that the new and the old roles were fundamentally different, the union wished to register a dispute. Mr Goldacre regarded that as inappropriate and indicated that the process of seeking volunteers had not been successful in this particular case, so that a selection procedure would be implemented.[32]After an adjournment the management position remained unchanged and Mr Lesslie confirmed that a dispute existed. In the end however the dispute did not go ahead because the Appellants made it plain that they intended to proceed in any event and the last stage or a dispute is a strike ballot.[33]On 7 November redundancy warnings were issued to the architects. The Appellants used a points system for redundancy selection. The Applicant had the highest score and accordingly, on the 28 November, the Appellants wrote to her to inform her that she would not be made, redundant. Of the six architects made redundant, four were volunteers and the other two were those on fixed term contracts. On 8 December the Applicant wrote to Mr King informing him that "a state of grievance exists between us regarding the imposition of the role of Senior Architect. .. J disagree completely that the new role of Senior Architect is comparable with that of the BBC's Senior Project Leader, which was the job specification I was working to when I was transferred .... " She set out once again the reasons for her disagreement and added that "we have not yet been informed how our Associate Architect believes he will run the architectural section ... despite repeated requests to see his strategy report". Three of the other retained architects also registered grievances.[34]At paragraphs 7fJ to $8 the Tribunal set out their findings of fact in relation to the grievances, the Appellants' response and the Applicant's resignation, as follows:
"79 All four grievances were heard together on 15 December 2002. Mr Shields, with Mr Goldacre attending, conducted the hearing and Mr Lesslie represented the architects. Mr Shields said in evidence that no one took notes: "
I believe I was able to retain the information." Mr Goldacre, however, told us he did take notes, but they had been "mislaid". In an event, no notes were available to the Tribunal. 80 Mr Shields's focus was the question of redundancy, i.e., whether the role changes amounted to more than 50%. He told us the grievance hearing was "a listening exercise" that took an hour or less. He said he asked maybe half a dozen questions, probably most about "what an architect does" from the RIBA full service list. He said,. as he is not an architect, it would be "difficult to say I understood all the points. I believe I had a grasp. I don't think I needed to be an architect to make a decision." He believed he was best placed to deal with the grievance, "as I was able to stand back from the situation and make an objective judgement," although he needed assistance, "to appreciate the technical points." He had not seen Mr Lucey's table before the hearing, and it was not mentioned. He did not believe there was any mention of "the 25'% change". Neither had he seen the BECTU Redundancy Report, but he knew the rest of the architects had expressed· concerns. So far as he understood it, the Applicant claimed her position was redundant because, "there would be no design element in her role ... " 81 The Applicant relied on a pre-prepared document that consisted of the RIBA list, plus her comments on each of the duties in the new senior architect job description. Under "8) Full Service", she wrote:
"What clearly is missing are the following stages identified by the RIBA as being key to the role of an Architect: detail design, production information, tender action, project planning, site supervision, completion."
The Tribunal found that Mr Shields's view of the Applicant's claim was significantly too narrow, and that that view was likely to have informed his subsequent discussion with Mr King and Mr Lucey, and thus his decision. 82 Mr Shields accepted that it was not possible for him to make decisions on the grievances without further investigation. He therefore spoke to Mr Lucey and Mr King. He did not believe he showed them the architects' various documents, but said, "I put across to them what the Applicant said". They talked about the 50% issue on a "generic basis", and then about each grievance. The four architects made different points, but "with a consistent approach that the job had changed by more than 50%." The three managers talked for about an hour and a quarter altogether, and for the first time Mr Shields was made aware of Mr Lucey's table:
"He walked me through it."
JIe told us, "I preferred Mr Lucey's analysis because he is an architect, and he worked in the BBC, so he understood the role of an architect", and in particular, "Mr Lucey had a better view of what the new role would entail", although he knew Mr Lucey took an opposing view to the Applicant's. 83 Mr Shields did not go back to the architects to get their views on the matter, "Because I believed I had the evidence to answer the grievance." He reread the Applicant's documents. "They did not show percentages, so I took Mr Lucey's chart, and I used that. I would have accepted Mr Lucey's information whatever, as he had held a supervisory role ... " In his statement, Mr Shields said:
"Indeed, Norman Lucey was the only person within LST who could assist me with the extent to which what Jane Thornley was being asked to do now differed, or did not ditTer, from what she had done at the BBC." 84 On 28 January 2003, Mr Shields wrote to the Applicant that, after hearing her grievance, he had decided that her position was not redundant. He testified that it was a standard letter to all the architects whose grievances he heard. In the letter he said, "
I acknowledge that to a degree there is a shift to Architectural duties that are concerned with project management and reviewing the work of other external Architects under our framework agreements. This is more apparent in the senior role although I understand from Norman Lucey that for a nUmber of years prior to your transfer to Land Securities Trillium this had always been part of the Architects responsibilities ... Managing advising and controlling the work of other contributors to projects is an activity that is consistent with an Architect's responsibilities and is by no mean~ a uniqu,e arrangement. .. The analysis conducted as part of the consultation exercise quantifies that the shift in;?le i~at most 25% for the Senior Architect ... This analysis was reviewed independently by the Construction Management Director." 85 The Applicant and Mr Lesslie testified that the letter contradicted what Mr Shields expressed during the grievance hearing. Their evidence was that Mr Shields said, as there was more tha'n a 50% job change, there was a redundancy situation. Mr Shields denied saying it. In her resignation letter, responding to Mr Shields's, the Applicant wrote, "I am surprised that you have completely reversed the opinion you expressed at our meeting after I had explained my position when you agreed there was more than a 50% job change al1d that this was therefore a redundancy situation." In his reply Mr Shields wrote, " ... 1 did not express this opinion." 86 The Tribunal took into account all that evidence, but also Mr Shields's and Mr Goldacre's contradictory evidence regarding whether or not notes were taken at the grievance hearing. In the circumstances, it concerned and surprised us that, if notes had been taken, Mr Goldacre subsequently "mislaid" them. We found that Mr Shields did make the admission attributed to him by the Applicant and Mr Lesslie. 87 On 13 January 2003, the Applicant wrote to Mr Shields giving notice in accordance with her contract. In addition to the passage set out above, she wrote, "I do not consider that you have dealt adequately with my grievance. I understand from reading your letter that the entire analysis has been done by Norman Lucey and Roger King, neither of whom can be considered as independent as they designed the disputed new structure ... the issues which concern me directly ... have not been addressed namely: the loss of the design, development, tendering and job running processes which were all integral parts of my previous role ... the new role which is being imposed on me fundamentally breaches my contract as I was employed by the BBC as an architect yet I am currently being denied the opportunity to practice all the necessary skills of an architect. I consider that I am entitled to resign without notice ... " Her last day was 12 May 2003 .. 88 In accordance with the evidence and previous findings, the Tribunal found that the effective cause of the Applicant's resignation was the Respondent's imposition of variations to the content of her contractual work." The Tribunal's Decision[35]The Tribunal had the benefit of detailed written submissions on fact and law from the parties' legal representatives; and they set out the law and the competing submissions at some length in paragraphs 89 - 93. Their conclusions in relation to constructive dismissal were as follows:
"94 The Respondent, by imposing the new job description on the Applicant, fundamentally breached the term of her contract that her principal duty was to lead on large or complex projects in which she would have a hands-on role from inception to completion. In effect, as we found, the Respondent thereby required the Applicant to cease doing her principal job and to take up a new one. The impact of the alteration was that, over a foreseeable period of time, the Applicant would be des killed. If she did not undertake, in particular, work stages E-H,. she would soon be out of touch with the rapidly evolving technology, etc. inherent in her specialism, and of course hers was not a lonely voice. Her colleagues came to the same conclusion. Thus, by imposing the new role on the Applicant, the Respondent evinced an intention not to be bound by her contract (Hilton v Shiner) ... 95. The flexibility clause Hi the Applicant's contract did not entitle the Respondent to change the content of her work so substantially as to change its nature. The Applicant was required to undertake "all" the duties of her post, not "some" or "any" of them as directed from time to time, "and" such other duties as were reasonably required. The "other duties" were additional to all the duties of her post, not a substitute for them and, on the Respondent's account set out in Mr Lucey's table, she had not been required before the transfer to undertake any such additional duties, nor would she be required to undertake them after the transfer, so it cannot be said that the new duties fell within the flexibility clause. Further, it cannot be a reasonable requirement that she discharge duties so different from those of her original contract that the effect would be to deskill her. 96 Given our finding that the effective cause of the Applicant's resignation was the imposition of the new job description, and the conclusions set out above, it follows that the Applicant was entitled to resign and to be treated as having been dismissed. She did not "jump" too soon, because her experience working for the Respondent over fourteen months was that its assurances of continued hands-on work were not founded in reality. Up to the time of her resignation, she was assigned no full-service projects, and her experience was that the projects on which she worked were contracted out to external architects after-the early stages, or that she was assigned at the end of the process, and she knew that that way of working was the Respondent's express intention in the proposals and clarifications, in Mr Lucey's strategy paper, and at the consultation meetings. Moreover; had She waited to see, she would have been at risk of being taken to have affirmed the new contract. As Lord Denning MR said in Western Excavating v Sharp , an employee " ... must make up his mind soon after the conduct of which he complains for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged." 97 Neither did the Applicant continue too long. She resigned within two weeks of the decision on her grievance, i.e., when it became clear that the Respondent had no intention of abiding by the contract. 98 The Applicant was accordingly constructively dismissed. 99 The Respondent's reasons for thus dismissing the Applicant was that its business requirements for her to carry out the unvaried work had diminished, i.e., her dismissal was attributable to redundancy. The Respondent did not require architects to carry out major, full service projects. It said as much. For that reason it substantively changed both her contractual duties and her actual functions, and we did not construe Murray as precluding consideration of the issue by way of those factors. It certainly did not say that we were permitted to ask only if the Respondent's requirements "for employees" had diminished. 100 The Tribunal concluded further the new job description entailed a change in her duties of more than 50%. We did not found that conclusion solely on the Applicant's table, although we took it into account, but we took into account as well that her union reps assessed the change as more than 50% and they, unlike Mr King and Mr Shields, had substantial experience assessing such change .. Moreover, as we found, the new description created a different role to that in the old one. In the new one, the Applicant was left with only a residue of narrow and sometimes vague duties. Thus, on the evidence, our considered view, our "impression", was that more than half the content of the Applicant's old duties changed or disappeared. Accordingly, she was redundant within the meaning set out in the BECTU agreement. 101 Further, we took the view that the Respondent was wrong to rely only on Mr Lucey's assessment, and not just because he was the begetter of the new description, although that ought to have been a consideration. Of equal significance, the Respondent plainly overlooked the obvious fact that, like Mr Lucey, the Applicant also worked for the BBC for many years, and that she too had supervisory experience. That experience is, after all, what they prayed in aid to argue that the management duties they proposed for her were nothing new. Likewise, they overlooked the expertise of the union. We considered that those failings were the hallmark of the Respondent's consultation process, and a fortiori of the grievance procedure. 102 The grievance hearing itself was seriously flawed. Mr Shields had seen none of the material on which Mr King and Mr Lucey based their view ... It is little wonder, then, that his impression was a change exceeding 50'Yo. More significantly~ although he knew that the 50%+ criterion was the issue, he did not ask any questions of the architects to get their view. A grievance hearing, like a disciplinary hearing, is to decide the matter at issue on' all the evidence, and it must be for the person with conduct to elicit crucial evidence if it is not presented by a party. Mr Shields, however, on his own account, had first to understand "what an architect does."
He was not in a position to ask relevant questions. In those circumstances, not to go back to the Applicant and her colleagues for their view on what he subsequently learned about what an architect does, with the material in support, and then to act only on that new knowledge, is wholly inadequate. As Mr Shields candidly told us, he would have accepted Mr Lucey's view "whatever", because Mr Lucey was "the only person" who could assist. In effect, he concealed from the architects that, whatever their evidence, regardless of their arguments, he would delegate the decision to Mr Lucey. , 103 It is perfectly plain from our findings and our conclusions that the new job description was not an offer of suitable alternative employment. 104 It follows that, in all the circumstances, it was not fair for the Respondent constructively to dismiss the Applicant for redundancy. Her Application succeeds." We shall set out their findings as to Remedy later on, after determining the issues arising from their decision on Liability. The Issues on Appeal (1) The Contract of Employment and Constructive Dismissal[36]The legal framework for determining whether the Applicant had been constructively dismissed is well-established, since the decision in Western Excavating: Ltd v Sharp [1978] IRLR 27 ; and it is not in dispute in this appeaL She had to prove on the evidence that there had been a fundamental breach of contract by her employers and that she had resigned in response to that breach. In this case therefore the Tribunal had to determine whether the changes in the functions the Applicant was required to undertake, following the Appellants' restructuring of the department, were permitted by the terms of her contract. If they were not, the second question was whether the breach of contract was sufficiently fundamental for it to be said that it went to the root of her contract. It was not sufficient for her to establish that she had been treated unreasonably or that there had merely been a change of emphasis in her work.[37]On behalf of the Appellants Mr Linden, who did not appear below, presented a number of detailed submissions in seeking to impugn the Tribunal's decision, which we summarise as follows:(a) (A) (1) Clause 1 of the contract (see paragraph 5 above) authorised the Appellants to require the Applicant to undertake all or any of the duties of her post, and thereby conferred a power on the Appellants to require duties from her, rather than a right on the Applicant to undertake those duties. That clause contained further flexibility in that it permitted the Appellants to require her to perform "any other duties which may be reasonably required of you", referring to duties other than the duties of her post which were set out in the job description. This considerably widened the Appellants' discretion and, on its true construction, the only limitation on the additional duties which might be required of the Applicant was that they had to be "reasonably required". He accepts that this requirement of reasonableness would involve consideration of whether the additional duties were so different from those in her original contract that the effect would be to deskill the Applicant. However, contrary to the Tribunal's view, it did not follow from the fact that the change of duties would deskill the claimant that they were necessarily not reasonably required. Determination of the reasonableness issue also required the Tribunal to consider the interests of the Appellants, which they erroneously ignored in reaching their decision that the changes were not reasonably required. (2). In theory the Applicant could have argued that the Appellants' discretion was not sufficiently wide to cover the changes which were made or ~hat, even if they were within the scope of the contractual discretion, that discretion had to be exercised in accordance with the duty of mutual trust and confidence implied into the contract by law. However, she did not so argue before the Tribunal and with good reason. Such arguments would have presented her with a very high hurdle to surmount, given the wide contractual discretion there was in this case. Further, breach of this term would have required her to demonstrate that the employers acted without reasonable or proper cause. In fact, as the Tribunal found, the Appellants had rational grounds for the way in which they approached the restructuring exercise and the services which the Applicant was to provide in the new regime. Further, a number of authorities emphasise the importance of the scope of the contract in deciding whether changes in job content amount to a fundamental breach; and they suggest that the employee has an onerous duty to co-operate within the terms of his or her contract of employment. Mr Linden relied in particular in this respect on the cases of Nelson v BBC [1977] ICR 649; Cresswell v Inland Revenue [1994] ICR 508; and Peter Carnie & Sons Lid v Paton [1979] ILR 260. Whilst there have been decisions in which changing the job. content of the employee has been held to amount to a fundamental breach of contract, these have been c.ases where the scope of the contract was clearly limited, there was no flexibility clause or no job description, and the changes were clearly fundamental. See for example Hilton v Shiner limited [2001] IRLR 727 and Coleman v S & W Baldwin [1977] ILR 342. The Tribunal relied on these authorities, one of which (Hilton) was not in fact cited by either party. In doing so they misconstrued the Applicant's contract. (3) In relation to the 1988 Role Specification, or job description, the aims of the job included "the monitoring of consultants" and "the control of Design and Build ~ contracts", both of which were essentially managerial or administrative roles and therefore clearly covered the functions about which the Applicant complained. Further, they were said to be "all dependent on the procurement method. selected by the department's management". Management therefore had a discretion as to the procurement method which would be selected for particular projects and this in turn would affect the role carried out by the Applicant. The contracting out which the Tribunal found to have occurred was therefore expressly contemplated and permitted by the contract. (4) Similarly main duty (a) provided that the Applicant might "be nominated Project Leader or ACED Co-coordinator for major and important projects or for a number of inter- related projects". The contract therefore contemplated that she might be a project leader or a departmental co-ordinator for major and important projects, that is she might not have a hands-on role in relation to such projects. Furthermore, she might also be co-ordinator for a number of inter-related projects, which were neither major nor important. At paragraph 22 of their Decision the Tribunal failed to take this into account when concluding that the Applicant's principal contractual duty was to lead on large or complex projects. The contract also contemplated, at main duty (c) that, projects might be handled by external consultants, which was the Applicant's main complaint. Further and generally all of the listed main duties involved essentially a managerial, administrative or co-ordinating function, and included a requirement that she communicate with and motivate a range of professional staff, consultants, and contractors. Finally, whilst the job description provided that the job holder should satisfy the requirements for corporate membership of an appropriate professional institution, the Tribunal erroneously described this as a main duty (k) and treated the RIBA standard form of agreement as if it was part of the Applicant's contract of employment, when~ it was not. (5) The Applicant's contract therefore conferred on her employers a wide discretion to require her to carry out a wide range of duties, including those of which she subsequently complained. Her complaint was essentially that, in future, the emphasis of her work would shift substantially in ''favour of the managerial aspects. However this could not amount to a fundamental breach of her contract of employment because the duties were within the scope of the contract. The Tribunal's conclusion to the contrary was an error of law.(b) (B) (1) In order to overcome this difficulty therefore the Tribunal sought to introduce into the Applicant's contract a rigidity which was not in fact there. At paragraphs 23 and 94 they adopted the device of grafting on to her contract a new or additional term that "her principal contractual duty was to lead on large or complex projects in which she would have a hands-on role from inception to completion". There was no basis for such a new term. Mr Brittenden, representing the Applicant below, never contended that such an additional term had been incorporated by agreement. The term appears to amount to a variation in the terms of her contract but, on the evidence, the parties had never agreed to vary the contract. The express terms did not give priority to any particular duty or limit the projects or the role the Applicant might have in relation to them. The Tribunal therefore went off on a frolic of their own. If, on the other hand, the Tribunal were construing the contract as including such a term, this amounted to an error of law. In paragraph 22 the Tribunal erroneously had regard to the subsequent conduct of the parties in determining what had been agreed between them at the time the contract was entered into. (2) Alternatively the Tribunal held that such a term was to be implied into the contract by reason of custom and practice, which had never been contended for by Mr Brittenden. The Tribunal clearly erred in implying such a term in the circumstances, in particular when it was inconsistent with the express term;> of the contract and fettered the contractual discretion which the Appellants had.(c) (C) Alternatively, the Tribunal failed to adopt a rational and consistent approach to the question whether, if there were breaches of the Applicant's contract, the changes which had taken or would in future take effect were so fundamental as to enable the Applicant to resign and to complain of constructive dismissal. In this respect they disregarded the fact that in April 2001 she was assigned the BBC Norwich project (see paragraph 24 of the Reasons), which was substantial, but in respect of which her role had not been hands-on. At paragraph 66 the Tribunal erroneously failed to take this into account. They also disregarded the fact that, on the Applicant's evidence, one of the projects undertaken by her prior to her transfer to the Appellants' employment was a Design and Build project for BBC London. Similarly, in relation to the Applicant's view that she had not been and would not in future be assigned full service projects, it was clearly relevant to decide whether Mr Lucey was correct when he said that, if she had not resigned, one of the projects to which she was assigned would have been on a full service basis and, on another three projects, she would have worked from inception to completion. If that was right her complaint that she would necessarily be deskilled if she remained in their employment would be seen in a very different light. However at paragraph 31 of their Decision the Tribunal erroneously failed to decide this issue and to take it into account.(d) (D) Alternatively the Tribunal's findings at paragraphs 68-71 were perverse. It was not the case that the Applicant's hands-on duties had been largely omitted, or that Mr Lucey had selected certain tasks from the many, set them out as main duties, and omitted the remainder. The new job description expressly provided that the architects would undertake a full range of architectural functions and listed the functions as including full service. None of the hands-on duties had been omitted. Accordingly the Tribunal's view that Mr Lucey transformed the Applicant's contract from one that required her principally to undertake all the hands-on tasks of major projects, to one that required her to undertake only the specified duties, was perverse, as was their view that the new job description set out a different role to the one she performed. In this respect the Tribunal erred in relying on the case of Hilton as this was a case in which the contract of employment contained no flexibility clause and there was no job description in existence. In any event the parties were not given an opportunity to make submissions to the Tribunal about this authority. We have considered all these submissions carefully but, having regard in particular to the Tribunal's findings of fact in this case, we find this analysis of their Decision unpersuasive for the following reasons. We agree with Mr Brittenden that, in examining the validity of Mr Linden's submissions, the starting point is the context for this particular contract of employment, which we regard as being of considerable importance in this case. This Applicant is a highly qualified and highly skilled professional who had, throughout her employment as an architect, exercised the skills of an architect in the work she was required to undertake and who had thereby satisfied the requirements for continued membership of her professional institution.[38]The authorities to which we were referred concerned a wide variety both of occupations and of contractual terms and conditions, none of which gave rise to the same issues which required determination in the present case. In that respect we regard them as being of limited assistance on the issues relating to this Applicant and this contract. The Applicant in Nelson v BBC was a producer, clause 8 of whose contract was expressed in very wide terms entitling his employers to require him to serve when, how and where they required and requiring the Applicant to comply with any such order. Notwithstanding these wide terms the Tribunal held that it was a term of his contract arising by necessary implication or to be inferred from the primary facts, that he was employed for the purposes of broadcasts to the Caribbean. The decision of the Court of Appeal (at page 656F) that: "It is a basic principle of contract law that if a contract makes express provision (as clause 8 did) in almost unrestricted language, it is impossible in the same breadth to imply into that contract a restriction of the kind that the industrial tribunal sought to do." must therefore be read with the particular contractual term under consideration in mind.[39]In Cresswell v Inland Revenue the Claimant was a member of staff involved in the administration of P AYE, whose duties were affected by the introduction of a computer system (COP) to perform tasks hitherto carried out manually by him. In dismissing his claim for a declaration that the defendants were in breach of their terms of service in requiring him to operate the new system, Walton J. held that an employee was expected to adapt to new methods and techniques in performing his duties, provided the employer arranged for him to receive the necessary training in the new skills and the nature of the work did not alter so radically that it was outside the contractual obligations of the employee; that it was a question of fact whether the introduction of new methods and techniques altered the nature of the work to such a degree that it was no longer the work that the employee had agreed to perform under the terms of his contract; and that although the introduction of COP changed the way the plaintiffs performed their duties, they were still administrating P AYE and performing the duties of tax officers which, in any event, could be varied under the terms of their contracts.[40]The AppliGant in Peter Carney v Paton was employed on general garage duties but spent some 25% of his time dealing with the reception side of the c9mpany's car hire business. This was the aspect of his work which he enjoyed most. However, his employers were not satisfied with the way he performed those duties and informed him that he would not longer be required to work on the reception side. The Applicant resigned and claimed constructive dismissal. The Tribunal found by a majority that, by removing that part of his job which he enjoyed most and by diminishing his status to some extent, the employers were in significant breach of contract, entitling the Applicant to terminate his employment without notice. Allowing the appeal the EAT held that the Tribunal had erred in law in concluding that the employee had been constructively dismissed. An employee who is engaged on general duties cannot, they held, insist upon doing only those duties which he likes most. In finding that by removing that part of the employee's job which he enjoyed most the employers were in significant breach of contract entitling the employee to terminate the Tribunal had applied a reasonableness test rather than the proper, contract test.[41]On the other hand the EAT allowed the employee's appeal against the Tribunal's decision to dismiss his complaint of constructive dismissal in Coleman v S & W Baldwin . The Applicant in that case had been employed by Covent Garden Supply Company since 1940. He had progressed to the position of Acting Manager, with one of his main duties being the buying of greengrocery which the firm sold. The firm was taken over by Baldwins in 1973 and in 1975 he was removed from the Acting Managership, a change to which he agreed. In 1976, whilst he was on holiday,' his buying duties were carried out by another member of staff and when he returned he was told "that this duty was to be taken away from him permanently. The Applicant resigned and claimed constructive unfair dismissal. The Tribunal found that he had not been dismissed in law. On appeal the EAT held that the Tribunal had erred in finding that,' on removing his duties as a buyer, an important part of the functions of his job, the employers had not in law dismissed the Appellant. They said as follows at paragraphs 9 and 10: 9 .... "It is quite clear on the evidence that not only were the buying duties from which Mr Coleman was removed the most interesting and enjoyable ones, and ones to which he attached considerable importance both in terms of job satisfaction and in terms of prestige, but that from a trading point of view they must have been very important; because, as far as Covent Garden Supply Co Ltd as opposed to Baldwins is concerned, he did virtually all the buying and therefore was responsible for the procuring of all the merchandise which it was the business of the company to sell. One has only to state this to see that, on any view of it, it was an important part of the functions of his job which were removed from him. 10. It is perfectly true that the employers had not gone on, as they might have done had Mr Coleman not walked out, to require him to undertake new and additional duties; which, as they would have been new, he could only have been 'required to undertake if he had consented. It may be that that was the thought which the Industrial Tribunal had in mind. While we appreciate that, it seems to us that there is a more positive way of looking at the matter, and that the correct and positive way of looking at it is this. Here is a man who had been employed by this firm for 36 years or thereabout and who previously had undertaken as part of his appointment certain well defined duties, an important part of which had been removed in 1975. He had assented to that. Then in 1976, a further very important part of his duties had been removed, to which he was not willing to assent, thus leaving him with only the residual duties which, although they might be important, were of a very humdrum character. In those circumstances, looking at it positively, it seems to us that even without imposing or seeking to impose other duties the employers had unilaterally changed the whole nature of Mr Coleman's job; that this was in fact a requirement for him to do something fundamentally different. That is not something which without his consent they are entitled to demand. They can ask, they can negotiate, but they cannot do it unilaterally and by way of ultimatum. In those circumstances we think that Mr Coleman was entitled to say, 'No, I am not prepared to continue to serve you on those terms,' and that this is in fact a true case of constructive dismissal where the employers by their conduct have intimated an intention not to be bound by the original and unchanged terms of the contract. We think that Mr Coleman accepted that, and that it was on that basis that he left on 3 September." In Hilton v Shiner the Applicant had worked in the Respondent's builder's yard for twenty years. His job description had never formally been reduced to writing but his principal job was to serve customers. He dealt with their purchases and payments and any cash transactions. The employers discovered that on three separate occasions a customer had left the yard with goods for which there was no sales invoice. The employers were not satisfied by his explanation and suspected that he had been guilty of acting dishonestly. However, in view of his long service, they decided not to dismiss him, but to transfer him to other work in the yard. He was told that he was not suitable to be employed in a position of trust and would no longer be permitted to deal with customers' payments or any transactions. The Applicant considered he had been constructively dismissed and resigned. The Tribunal dismissed the complaint. The EAT however allowed the appeal holding that:
"Requiring an employee to cease doing what has been his principal job and to take up a new - role will almost always be capable of being a repudiatory breach of contract. . Whether in a particular case the breach is sufficiently material to be repudiatory "has to be judged objectively by reference to its impact on the employee. The question whether the proposed change was justified \s a different and distinct question. Once the breach is sufficiently material to be regarded as repudiatory, the motive underlying it becomes irrelevant. Thus, the presence of an allegation of dishonesty against the employee makes no difference. In the absence of a written job description, it is open to an employment tribunal to determine what an applicant's duties under his contract were by looking at the conduct of the parties over the years. In the present case, given the tribunal's finding that the applicant's "principal job" was "serving customers" and that the work he was to return to was described as a "new role" which did not relate at all to dealing with customers, it was almost impossible to come to the conclusion that there had been no fundamental change in the applicant's job. Since it was not possible to say from the tribunal's reasons how they reached a conclusion which could only be justified with some difficulty, the appeal would be allowed. Although on remission, it would be open to the tribunal to conclude that there was here no change of duties which was sufficiently material so as to make the termination of employment a constructive dismissal, such a conclusion would be so surprising on the facts that the reasoning followed would have to be clear, cogent and full."
[42]While this case was not in fact one of the authorities cited to the Tribunal by the parties, we agree with Mr Brittenden that it does not establish any new principle of law, rather than provide a further example of the application of the legal principles which, as was common . ground, fell to be applied to the facts of this case. In oral submissions Mr Linden did not contend that the Tribunal's reference to it in their Decision amounted, on its own, to an error of law and we do not consider that it was. It is also clear from the facts of that case that there was no written job description or any contractual term of the kind under consideration in the present case.[43]It is clear from the authorities therefore that cases in this area of the law are fact sensitive, depending upon the duties of the employee, the terms and conditions of the particular contract and the context in which the contract of employment was agreed. In relation to this aspect of the appeal, namely the Applicant's contract and constructive dismissal, we consider that the issues to be determined are whether the Tribunal.erred in arriving at the conclusion they did as to:(a) what the Applicant's duties under her contract were;(b) the extent to which those duties were changed by the Appellants;(c) whether the Appellants were entitled to change her duties pursuant to Clause 1 of the contract; and(d) if not, whether ,their breach of contract was a fundamental breach entitling her to resign . (a) In relation to- the. Applicant's duties under the contract we see no basis for the suggestion that the Tribunal erroneously grafted on a new contractual term by variation or that they erred in construing the existing contractual terms by considering what duties the Applicant subsequently carried out. Having considered the contents of the 1988 job description the Tribunal concluded, as they were entitled to on the evidence before them, that her principal contractual duty was to lead on large or complex projects in which she would have a hands-on role from inception to completion. They so concluded having carried out an analysis of the duties described in the job description, and having considered on the evidence how those duties operated in practice, including the actual work the Applicant was given and why. This was in our judgment not only a legitimate approach but also one which was wholly in accordance with reality. Job descriptions are not prescriptive documents. They frequently fail to represent, or represent either accurately or fully, the actual duties in fact undertaken by an employee in his or her post; and the duties are often described in vague terms so that, when interpreting them, a Tribunal is required to put some flesh on the bones, as it were, in order to understand what exactly the employee's duties comprised. The Tribunal were therefore entitled to consider her duties in this job description by reference to what this Applicant had in fact been doing.[45]The considerable experience of all the members of this Appeal Tribunal is that job descriptions invariably commence with the most important duties identified at the head of what is often a lengthy list of duties. In this respect, as is clear from paragraph 22 of their Reasons, the Tribunal considered in particular the expressed aims of the job and main duty (a) as being of particular significance. The aims referred to the Applicant undertaking the "overall" design, planning and management of "major" projects posing particularly complex design problems . . The first duty listed provided that she "will" be nominated Project Leader or ACED Co-ordinator for major or important projects or for a number of inter-related projects. In our view that last phrase, on which Mr Linden places reliance, suggests no more than a number of projects -with a particular link 'or theme, but we repeat that the job description is not prescriptive. Further, many of the tasks identified further on down the list would be neither time consuming nor important. The Tribunal were entitled, in our judgment, to look at main duty (a) heading the list; to look at what she actually did (including the fact that out of seven projects assigned to her between 1994 and 2001 she had carried out a full service on five of them because she was regarded as especially able); to find that she was instructed almost invariably to undertake all of the RIBA work stages; and to regard duty (a) as her principal duty under the contract. There was ample evidence to enable them to reach the conclusion they did as to her principal duty under the contract, which accurately reflected the stated aim of the job that she would be responsible for the overall design, planning and management of major projects and/or that she would be a project leader for major projects.[46]Further, it is clear from paragraph 22 of their Reasons that the Tribunal expressly considered whether the job specification required the Applicant to undertake all ,RIBA work stages and found that it did not. Nevertheless they found that she was instructed almost invariably to undertake them. They also regarded the work stages as providing a good indication as to whether and to what extent her participation under the new job description would have affected these work stages, given that they found that her duties would have been confined to the early stages of a project and that she would no longer have been hands-on. The listing of the RIBA requirement as duty (k) at paragraph 13 of their Decision arose in our view , only from the mistaken impression given by a poorly photocopied document in the bundle before the Tribunal; andit has no bearing on the Tribunal's conclusion.[47]We can therefore identify no error in the way in which the Tribunal identified the Applicant's express duties, including the principal, duty, under her contract of employment. In relation to their alternative conclusion in paragraph 23. that such a principal duty was to be implied by custom and practice, Mr Brittenden fairly conceded in oral submissions that he had never raised this suggestion or contended that such an implied term could be incorporated in this case. We accept his submission however that this was expressed only as an alternative basis for their decision, their finding being material only if we had concluded that the Tribunal erred in their primary conclusion as to the Applicant's express duties. Since we uphold that conclusion it is unnecessary for us to consider this issue further.[48](b) In relation to the- changes to the Applicant's duties it is clear, in our view, that the Tribunal found there to have been not merely a change in emphasis but a significant change in the content of her duties. They also took into account in considering those changes the context for this contract and the Appellants' statements as to their future intentions during the consultation process. The expressed aims of the Applicant's job, referring to her undertaking the overall design of major projects, had gone, or were found to be substantially reduced, as was the fate of the words "will," "major" and "important" from main duty (a).[49]We regard as unimpeachable the Tribunal's conclusions on the evidence before them that the Applicant's hands-on duties had largely been omitted from or were substantially. reduced in her new job specification; and that there were significant changes to her duties which would have the effect of deskilling her as an architect. They concluded at paragraph 68 that, whereas the Applicant had previously been responsible under her old job description for carrying out or assigning tasks, the language of the new description was materially different. The 1988 specification required her to lead on major full service projects and set-out "responsibilities" at paragraphs (c) - (g). Under the new job description she was expected, in contrast, to "contribute" or "assist". At paragraphs 69 and 70 they expressed as important the change to her duties which now provided that the Applicant would be "Lead Designer", which materially differed from her old job description at main duty (a), no longer referring to her as Senior Project Leader and Narrowing the focus of her work. Further, the requirement to undertake full service duties appeared last on the list of functions, thereby indicating its reduced role and importance; and the Appellants were found never to have explained or set-out what the set criteria were for carrying out full service projects, nor when it might be strategically necessary to do so. Nor did they explain or clarify what the defined projects might be on which the Applicant would be a Lead Designer. The Tribunal were entitled to conclude in these circumstances that such terms "might mean anything or nothing"; and that they certainly did not indicate that the Applicant would regularly be working hands-on.[50]Further, no duty in the new job description appeared to require the Applicant to undertake RIBA work stages E - H, about which the Applicant specifically complained. The Tribunal regarded it as significant that the "full range of professional architectural functions" specified in the last bullet point in the list did not appear to reflect the full service duties in the RIBA list. They were also qualified by the addition of the words "where necessary" throughout. The following were also found to be missing from the job description: detailed design, production information, tender action, project planning, site supervision and completion (see paragraph 81). They also found that the duties listed at numbers 3, 4, Sand 7 in the new job description had no equivalent in the Applicant's 1988 job description. Nor were they recognised in the RIBA list of work stages. These were found to be new or additional duties which the Applicant was expected to undertake, which reinforced the Tribunal's conclusion that there was a substantial change between both job descriptions.[51]For the reasons which they set out at paragraph 100 the Tribunal concluded that the duties contained in the new job description amounted to more than a 50% change in the Applicant's duties, that is that more than half of the content of her old duties had changed or disappeared. They also found on the evidence that Mr Shields had admitted that her duties had changed by more than 50% at the "'Grievance Hearing, although he later resiled from this, and the Appellants' notes of the Hearing were found to have been mislaid.[52]In these circumstances the Tribunal were in our judgment entitled to conclude as they did in relation to the changes to this Applicant's duties under her contract of employment. Her job title had changed, her leadership role had been omitted, there were no duties which mirrored or were comparable to main duty (a), she was referred to as being a Lead Designer where necessary, and she would no-longer have a hands-on role from inception to completion on large or complex projects.[53]In addition to comparing the two job descriptions, the Tribunal had regard to the Appellants' statements of intention as to the Applicant's future role made during the consultation process. As is clear from paragraphs 45 and 46 the Appellants confirmed at the meeting of 19 August that the main aim of the proposals had been to ring fence the design requirements and separate these from the delivery of projects; and that there was a continuing need for the conception to completion architectural role in the case of some projects. Larger projects however would probably be run by external consultants or by a mixture of both teams. Given the Applicant's original main duty (a) it was significant that Mr Lucey accepted in evidence that the proposals as outlined by Mr King meant that design would- be kept in-house and that the rest of the work stages would go to external consultants; and that there would be greater emphasis on the early stages for the in-house staff but external consultants would be used on the later stages. Thus the design element would be kept in-house and everything else would go to external consultants. Further, at paragraph 51, the Tribunal found that Mr King's proposals were that early designer involvement would be a key feature relating to the way in which the Appellants would operate; and that design would have greater emphasis during the inception and feasibility stages. He stated that the proposed restructure sought to ensure that design was a key component of service, which did not become eroded by requiring all staff to undertake all functions within the project process. The Tribunal it seems to us were entitled to regard this as a substantial narrowing of the Applicant's remit and of her contractual duties. Her employers wished her to focus on design and not to undertake all the RIBA work stages she had previously undertaken. There were further findings of fact in paragraphs 56 and 57, which indicated a substantial change in the Applicant's duties.[54]The phrase "all dependent on the procurement method selected by the department's management" in the aims section of the 1988 job description cannot, in our judgment, be relied upon by the Appellants as enabling them to carry out substantial changes of the kind found to have occurred or to remove what the Tribunal found to be important aspects of this Applicant's job.

(c) For convenience we repeat that Clause 1 provided as follows:

"You will perform to the best of your ability all the duties of this post and any other post you may subsequently hold and any other duties which may reasonably be required of you and will at all times obey all reasonable instructions given to you."
In our judgment this clause in the Applicant's contract of employment, correctly construed, does not grant to the Appellants the wide discretion for which Mr Linden contends. It is substantially different from the clause which was considered by the court in Nelson v BBC . Read as a whole the Tribunal were entitled, in our judgment and for the following reasons, to conclude that the extent and nature of the changes to the" Applicant's duties imposed by the Appellants did not fall within the scope of the discretion afforded. Firstly, we consider that the words "and any other post you ~'ay subsequently hold" indicate a different post which the parties to the contract may agree that the Applicant will hold, as a result of a consensual variation to the contract, and not a post which the Appellants require her to hold against her will. Secondly, the requirement that she perform to the best of her ability "any other duties which may reasonably be required of you" does not afford the Appellants carte blanche to require the Applicant to undertake any duties they wished her to, but expressly imposes a requirement of reasonableness on the employers' request. Once it is found that the duties required by the Appellants were unreasonably required of her, as the Tribunal found to be the case, the fact that there may have been valid, commercial grounds, as opposed to a wholly arbitrary basis, for the Appellants requiring her to undertake them, cannot in a contract of employment cure the unreasonableness of the requirement insofar as the employee is concerned. Employers will often be able to demonstrate that they have valid grounds, commercially, for example, for redeploying an employee to a wholly different department or location in circumstances which, for the individual employee, would be a wholly unreasonable requirement. Once such a requirement is found to be unreasonable for that individual employee, a reasonable basis for making the request cannot mean that it IS "reasonably required" of that employee.[56]In the case of Cresswell v Inland Revenue one of the considerations was whether the degree of change sought to be 'imposed was "sufficient to fall outside the original description of the proper functions of the grade concerned". In this case the Tribunal found at paragraph 95 that, given the extent of the changes sought and their impact on the Applicant, Clause 1 did not entitle the Appellants to "change the content of her work so substantially as to change its nature"; and that "it cannot be a reasonable requirement that she discharges duties so different from those of her original contract that the effect would, be to, deskill her". We agree. The Tribunal were entitled on the evidence in this case to find that the effect of the changes on this Applicant meant that she would no longer be exercising the skills of an architect; that she would thereby be significantly deskilled; and that in' consequence she would be materially disadvantaged in both her present and any future employment. (d) In the circumstances Mr Linden's main grounds of appeal against this Tribunal's decision on constructive dismissal fail. We consider that the Tribunal did not err in their construction of the Applicant's contract or in concluding as they did in relation to Clause 1 or that, by the changes they proposed to her duties, the Appellants had evinced an intention not to be bound by her contract. The Tribunal's Decision that this Applicant was therefore entitled to resign and complain of constructive dismissal was one which, in our judgment, they were entitled to reach.[58]Mr Linden's perversity challenges we deal with shortly, because we regarded them as an attempt, essentially, to reargue the facts and as not approaching anywhere near the high threshold he must cross in .order for such a challenge to succeed (Yeboah v Crofton r20021 IRLR 634) . There was ample evidence to enable the Tribunal to conclude as they did for the reasons we have set out above. In particular, in our view, the Tribunal were entitled to conclude at paragraph 31 that they had to examine the position as at the time of the Applicant's resignation and not have regard to what the Appellants suggested the position would have been in the future if she had not resigned, which was in any event disputed. Once an employer has committed a fundamental breach of contract entitling an employee to resign, what may have happened subsequently if he or she had stayed cannot be brought retrospectively to bear on the employee's entitlement to resign following that breach and to complain of constructive dismissal. That principle applied equally in our view on the facts of this case. (2) The Reason for the Dismissal[59]Mr Linden submits that, in any event, even ifhe fails in relation to his grounds of appeal against the decision on constructive dismissal, the Tribunal erroneously concluded that the reason for this dismissal was redundancy. Since the Applicant's contract of employment embraced the change of emphasis in her work and there was no intention to reduce the number of architects further, there was no diminution in the requirement for employees to carry out work of a particular kind, . as regards the Applicant, and this cannot therefore have been the reason for dismissal, having regard to the decision in Murray v Foyle Meats Ltd [1999J ICR 827. The Tribunal failed to refer to or apply the statutory definition of redundancy, or indeed the definition contained in the agreed statement on redundancy procedures and payments, on which the Applicant relied for the purposes of her claim for a contractual enhanced redundancy payment. Furthermore, even if the change in workload was not permitted by the contract of employment, it did not follow that the reason for dismissal was redundancy. The finding was contrary to the Tribunal's own finding at paragraph 88 of their Reasons that the effective cause of the Applicant's resignation was the Appellants' imposition of variations in the content of her contractual work. The reason for dismissal was thus the Applicant's refusal to accept such changes or "some other substantial reason" within the meaning of section 95 (1) Employment Rights Act 1996.[60]We reject this submission. It seems to us that the Tribunal accepted that there was a redundancy situation for the reasons they set out in paragraph 99. They clearly applied the statutory definition and considered the same by referring expressly to the decision in Murray. Further they considered that the Appellants had in fact admitted in evidence that there was a reduced need for the Applicant to do the work that she had previously undertaken .. They also made relevant findings of fact at paragraphs 8, 129 and 131. Further, the nature of the change in the Applicant's duties-and the Tribunal's finding that her duties had changed by more than 50% did, in our judgment, satisfy the provisions of section 139 of the 1996 Act. There was a reduced need for the Applicant to continue to undertake the work that she previously carried out. This caused the Appellants to introduce a revised job description; and the reduced need for such tasks on her part was clear on the evidence and on the Tribunal's findings. This ground of appeal must therefore be dismissed. (3) The Fairness of the Dismissal[61]Mr Linden contends that, in finding that the dismissal was unfair, the Tribunal failed to refer to, to have regard to or to apply the necessary "range of reasonable responses" test. Instead he contends that they substituted their own view as to the adequacy or otherwise of the Appellants' conduct of the Applicant's grievance, and found that the new job description was not an offer of suitable alternative employment. They held that it followed that the dismissal was unfair. In fact this did not follow at all. The Tribunal's procedural criticisms of the Appellants' process had to be weighed in the balance in determining whether dismissal fell within the range of reasonable responses. This was not a case in which there had been no consultation whatsoever or where the Applicant had been expressly dismissed for no good reason without warning. Rather there had been an ongoing discussion as to the effect of current trends in the organisation of architectural work or the allocation of work to its employees by the BBC and then by the Appellants. The Tribunal made no criticisms of the Appellants' strategy in this regard. Moreover there had been a substantial number of meetings and discussions during which the Appellants had demonstrated their anxiety to retain the Applicant in their employment. This was an unusual case, where the Applicant herself wanted to be dismissed for redundancy. In these circumstances the Tribunal had to consider carefully whether they could sensibly conclude that the dismissal of an Applicant who wished to" leave in any event was unfair. It could not be 'said to have followed from their criticisms of the Appellants. The Tribunal allowed their own sympathy for the Applicant and their disapproval of the Appellants to lead them to conclude that the dismissal was unfair instead of applying objective standards of reasonableness.[62]Mr Linden also submits that the Tribunal reached a perverse conclusion in holding at paragraph 72 that Mr Goldacre and Mr King did not refer expressly to Mr Lucey's chart and in criticising the Appellants in· this respect. He contends that it was common ground before the Tribunal that the trade union and some of the architects, including the Applicant, had been provided with the chart on 29 October with a request for comment. Neither the Applicant nor Mr Lesslie had made any comments, which the Applicant said in cross-examination was a "big mistake". The minutes of the meeting of29 October clearly showed that express reference to the chart was made and that was not in dispute. Mr Goldacre had also written to Mr Lesslie to invite him toa meeting on 20 November to discuss this matter but Mr Lesslie had failed to turn up. Thus the information was not new and the Appellants were entitled to assume that the points which the architects made in the course of the grievance procedure incorporated their views on this document.[63]Mr Linden contends, finally, that in finding that the new job description entailed a change in the Applicant's duties of more than 50% the Tribunal had regard to an irrelevant consideration. The uncontroverted evidence was that it was the practice of the BBC and BECTU that the BBC would not make an employee compulsorily redundant unless there was to be or had been a change of more than 50% in his or her job functions. This was to protect employees from redundancy rather than to entitle them to termination 6f their employment. Further it was not possible to make a percentage assessment on the basis of a comparison of the "old" and "new" job descriptions "as the Tribunal purported to do. Their assessment on this basis was perverse.[64]We consider, however, that the Tribunal did properly consider the fairness of the Applicant's dismissal and that they did apply the range of reasonable responses test. There is nothing in the Decision to suggest that the Tribunal misdirected themselves in this regard. It is not mandatory to refer to section 98 (4) of the Act or expressly to the range of reasonable responses test and Mr Linden does not suggest that it is. It is clear that on page 33 of the Tribunal's Decision, under the heading of "Unfair Dismissal" and when referring to the Appellants' submissions, the Tribunal set out that it is not for them to decide what they would have done if they were the employers carrying out the reorganisation. In our view they clearly had the principle well in mind.[65]It seems to us that, in arriving at their conclusions, the Tribunal did not simply equate the inadequacies in the Applicant's new job, the fact. that it did not constitute suitable alternative employment and the Appellants' flawed handling of the grievance process with unfairness, although we accept Mr Brittenden's submission that these were factors which they were permitted to take into account. The Tribunal's findings in relation to unfairness are to be found at paragraphs 100 onwards of the Reasons. These paragraphs, in our judgment, clearly set out the reasons why the Tribunal found this dismissal to be unfair and to fall outside the employers' range of reasonable responses. They considered the fact that, since the new duties were substantially different from the Applicant's previous duties, the Applicant had been left therefore with only a residue of narrow duties, often expressed in vague terms. Mr Lucey's assessment of the changes to the Applicant's job was flawed and if was wrong for the Appellants to rely upon his assessment. The Appellants overlooked the Applicant's experience within the organisation when preferring Mr Lucey's views as to how and in what respects her duties had changed. The ,Appellants overlooked the experience of the trade union in considering the extent of the changes to her duties. The consultation process was flawed. At no stage did the Appellants provide clarification of the changes. The grievance hearing and the process were found to be seriously flawed for the reasons set out at paragraph 102. Mr Shields did not approach the grievance hearing with an open mind, admitting in evidence that he would have accepted Mr Lucey's view whatever (see paragraph 102). Further the revised job description did not constitute an offer of suitable alternative employment.[66]When considering the Tribunal's conclusions as to the fairness of this dismissal regard must also be had to their detailed findings of fact contained within the Reasons.' The conclusions that the consultation process, Mr Lucey's assessment of the changes to the Applicant's duties, and the grievance procedure were flawed, cannot be read in isolation from their primary findings of fact. Read as a whole we can see no basis for challenging the Tribunal's conclusions in their Decision as to the fairness of this dismissal. Nor can we see any basis for the contention that their finding in paragraph 72 was perverse. The reasoning as to unfairness was, in our judgment, perfectly clear and we reject the submission that this Tribunal substituted its own view for that of the Appellants or failed to consider relevant factors. (4) Remedy[67]We turn then to remedy. The Tribunal's conclusions in respect of remedy were set-out at paragraphs 104-112, as follows:
"104 The Applicant's claim for the enhanced redundancy payment is not, with respect to Mr Youngson, a claim in contract. Her claim, although we do not in the event have to decide it, was that she was constructively dismissed by reason of the Respondent's failure to make her redundant and pay her according to the contract. If we had had to determine that claim, . we would have concluded that the BECTU agreement does'- not e!ltitl~an employee to be dismissed with a contractual redundancy payment once slhe has demonstrated a 50%+ change of work content. The parties cannot have intended that the employer would be obliged to dismiss an employee in those circumstances. 105 On the other hand, die right to a redundancy payment is statutory, not contractual. Parties to emploYlllent' contracts may, as here, privately agree that, in the event of dismissal for redundancy, the_ employee will be entitled to a payment greater than the minimum provided by statute, but that does not affect the employee's right to the payment. . Such payments are said to be "enhanced", because they are more than the statutory minimum. "
Enhanced" does not signify a different legal nature. Thus, the award we make to the Applicant for the loss of a redundancy payment to which she became entitled upon dismissal for redundancy as defined in the BECTU agreement, is not, although by contract it is enhanced, subject to the cap on contractual damages in the Tribunal. 106 We made a Basic Award to the Applicant of twelve weeks times the statutory maximum of £260, but that sum will be deducted from the redundancy payment to avoid double payment. 107 The Applicant's contractual redundancy payment is calculated as annual substantive salary over twelve, times completed years of continuous service, i.e. a month's net salary for every full year of continuous service. The Applicant had twelve full years continuous service. We therefore awarded her £39,778.20 as a redundancy payment. 108 The Applicant's gross pay was £43,491.25 per annum, and her net pay was £3,314.85 per month or £764.97 per week. The period from her last working day on 12 May 2003 to the date of assessment on 9 December was thirty weeks. She was unemployed throughout the period, and there was no evidence that she had not mitigated her loss. She had been anxiously looking for fresh employment. We accordingly awarded her thirty weeks net pay for loss of earnings, a total of £22,949.10. She did not claim benefits, so the recoupment provisions do not apply. 109 We took into account that the Applicant is forty-eight years old, and is not finding it easy to get new work. However, architectural vacancies do exist, and she is an architect of proven ability and long experience. We considered that, within the next three months, she was likely to find a new job. We accordingly awarded her three months' net salary for her future loss of earnings, a total of £9,945.55. 110 Given her leading position and substantial salary, we awarded the applicant £300 for the loss of her statutory rights. 111 In addition, in accordance with the principle set out in Dalev v AE Dorsett., we decided it would be just and equitable for the Respondent to compensate the Applicant for the loss of her service-related notice entitlement. We awarded her four weeks' pay, a total of £3,059.88. 112 The Tribunal made a total award to the Applicant of £76,032.73, as per the schedule to this Decision, and we order the Respondent to pay the Applicant that sum."[68]Since the Notice of Appeal was filed in this matter the issues under this heading have narrowed. Mr Brittenden concedes on behalf of the Applicant that the Tribunal erred in proceeding to determine remedy. It appears that they invited the parties to make submissions on liability only and then, without warning, proceeded to determine remedy without hearing further from them. In so doing they failed to address a number of relevant matters, including the possibility of a Polkey reduction in circumstances where the Appellants wished them to consider an argument that dismissal was inevitable, given the Appellants' permissible strategy which was unacceptable to the Applicant. The Appellants also wished to make submissions as to whether it would be just and equitable to award the Applicant compensation in the particular circumstances of this case. The parties are agreed therefore that, as far as computation of the award of compensation IS concerned, this matter must be remitted to the Tribunal to be redetermined.[69]The only live issue before us therefore, in relation to remedy, is as to the Applicant's claim for a contractual redundancy payment. Mr Linden submits that her claim was . for damages for breach of contract and was therefore capped at £25,000. In any event the Tribunal erred in making any award under this heading because the redundancy agreement was not directed at constructive dismissal cases and was intended only to address cases of express dismissal or voluntary redundancy cases. It did not therefore give rise to any entitlement on the part of an employee, in circumstances where the Appellants had no control over the termination of her employment. Even if the redundancy agreement did apply to constructive dismissals Mr Linden submits that the Tribunal erred in failing to consider and apply the contractual definition of suitable alternative employment under clause 4.5 (a) of the agreement, namely "broadly similar work and location with no reduction in basic pensionable salary, reflecting the individual's experience and qualifications". He submits that this provision contemplated that the employee might be offered an alternative job and not one which she could be instructed to carry out. The definition therefore required the consideration of issues other than those which the Tribunal had addressed, in concluding that the Applicant had been constructively dismissed. The question under this definition was whether the work was "broadly similar" and reflected the individual's experience and qualifications. The Tribunal erred in failing to direct themselves in accordance with this definition, pursuant to which it was possible to conclude that the work, albeit that it was not permitted by the contract and was work of a different kind, was a suitable alternative .[70]In our judgment, however, in circumstances where this Tribunal found as a fact that the Applicant was unfairly constructively dismissed, that the reason for dismissal was redundancy, and that there was no offer of suitable alternative employment, they were fully entitled to calculate compensation for breach of contract on the basis of the redundancy payment that the Applicant would have otherwise received and/or to commute the difference in amount, which exceeded the Tribunal's contractual jurisdiction in contract, as part of the compensatory award on a just and equitable basis. We understand that the Tribunal were in fact referred to the Appellant's formula for calculating the enhanced redundancy payment at the end of the hearing, in response to the question posed by them to the parties' legal representatives. In our view the Applicant's entitlement to an enhanced redundancy payment under the redundancy agreement accrued upon her being constructively dismissed in the circumstances of the redundancy situation, which the Tribunal found to exist. In relation to suitable alternative employment, the Tribunal's findings make it clear that no suitable employment had in fact been offered by reason of the radical change to her contractual duties. The Tribunal were well aware of the appropriate considerations because this was canvassed in the submissions submitted by both parties.[71]For these reasons therefore this appeal is dismissed save that, in relation to the issue of remedy, the question of compensation is to be remitted to the same Employment Tribunal for redetermination, apart from the sum awarded in respect of the enhanced redundancy payment, which we uphold for the reasons given.