MS D DOHERTY v BRITISH MIDLAND AIRWAYS LTD [2005] UKEAT 0684_04_0802

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0684_04_0802Case No Appeal No. UKEAT/0684/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS D DOHERTYAPPELLANTBRITISH MIDLAND AIRWAYS LTDRESPONDENT
Before
His Honour Judge McMullenDate 8 February 2005
[1]APPEARANCES For the Appellant MS CATHERINE RAYNER (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW For the Respondent MR JOHN BOWERS QC (of Counsel) Instructed by: Messrs Kemp Little Solicitors Cheapside 138 Cheapside London EC2V 6BJ SUMMARY Unfair Dismissal Employment Tribunal made findings against the Applicant relating to malice and motive which were not the Respondent's case and were not put to her. Lucas v Chichester Diocesan Housing Association Limited UKEAT/0713/04. Remitted to fresh employment tribunal with directions to consider ACAS conciliation of long running litigation. HIS HONOUR JUDGE MCMULLEN QC This case is about constructive unfair dismissal, said to be on the ground of trade union activities. The judgment represents the views of all three members. We will refer to the parties in the language of the 2004 Regulations as Claimant and Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against the Decision of an Employment Tribunal, sitting over six days at Watford, Chairman Mr N Mahoney, registered with Extended Reasons on 1 July 2004. The Claimant was represented there and here by Ms Catherine Rayner, of Counsel; the Respondent was represented there by a solicitor, who today instructs Mr John Bowers QC. The Claimant claimed constructive unfair dismissal on the ground of trade union activities. The Respondent contended the Claimant resigned and was not pushed, and it had nothing to do with trade union activities. The issues[3]As defined by the Employment Tribunal there were 17 separate issues, which were set out and summarised in paragraph 5, in headline form. The purpose of the summary was to delineate the structure of its Decision, which was as follows:
"35. In the circumstances the Tribunal concludes that there was not a series of cumulative acts continuing until the Applicant's resignation which amounted cumulatively to a fundamental breach of contract or a breach of the implied term of mutual trust and confidence. There was a minor breach regarding training prior to June 2002 and a fundamental breach in respect of the matters set out as part of Issue 10. However, as previously explained the Tribunal is entirely satisfied that that fundamental breach of contract was not the reason for the Applicant's resignation (even in part) and in those circumstances the Applicant's complaint fails."
The appeal[4]The Claimant appeals against that Decision, raising nine generic grounds and 11 specific grounds of perversity. The Respondent cross-appeals on one ground. I gave directions sending this appeal to a full hearing, together with the cross-appeal, setting out the steps to be taken for the adduction of evidence by agreement, which I am happy to see has been carried out. The legislation[5]The relevant provisions of the legislation are as follow.

(c) of the Employment Rights Act 1996 :

"95 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, only if) – … (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."
[6]Protection for trade union rights and activities is provided by TULRCA 1992 ,[7]section 152: "152 Dismissal on grounds related to union membership or activities(1) For purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee— (a) was, or proposed to become, a member of an independent trade union, or (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, or (c) was not a member of any trade union, or of a particular trade union, or of one of remain a member.(2) In subsection (1)(b) "an appropriate time" means— (a) a time outside the employee's working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union; and for this purpose "working hours" , in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.(3) Where the reason, or one of the reasons, for the dismissal was— (a) the employee's refusal, or proposed refusal, to comply with a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his not being a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, he must make one or more payments, or (b) his objection, or proposed objection, (however expressed) to the operation of a provision (whether or not forming part of his contract of employment or in writing) under which, in the event mentioned in paragraph (a), his employer is entitled to deduct one or more sums from the remuneration payable to him in respect of his employment, the reason shall be treated as falling within subsection (1)(c). Remedies are provided by section 146(1): "146 Action short of dismissal on grounds related to union membership or activities. (1) An employee has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the purpose of— (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so, (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, or Further rights are provided by section 170: "170 Time off for trade union activities. (1) An employer shall permit an employee of his who is a member of an independent trade union recognised by the employer in respect of that description of employee to take time off during his working hours for the purpose of taking part in— (a) any activities of the union, and (b) any activities in relation to which the employee is acting as a representative of the union. (3) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS.(4) An employee may present a complaint to an industrial tribunal that his employer has failed to permit him to take time off as required by this section. The Tribunal directions[8]The Tribunal directed itself by reference to those relevant provisions and what we hold to be the leading authorities which are cited in its Extended Reasons at paragraph 33.2, and which we need not rehearse. From those authorities it distilled the application of the law in a way which is accepted by both Counsel, and is as follows:
"33.3 The test under Section 95(1)(c) is whether the employer has been guilty of conduct which is a significant breach of the contract of employment going to the root of the contract or which shows the employer no longer intends to be bound by one or more of the essential terms of the contract, the employee has left as a result and acted promptly. There exists in the contract an implied term of trust and confidence; an implied term of co-operation and an implied term not to exercise managerial discretion in a capricious or arbitrary way. If an employer without reasonable and proper cause conducted itself in a manner likely to destroy or seriously damage the relationship of confidence and trust and/or of co-operation between employer and employee then that amounts to unfair constructive dismissal. Exercising a managerial discretion in a capricious or arbitrary way can also amount to unfair constructive dismissal. 33.4 Further, it is an implied term of a contract of employment that the employers will reasonably and promptly afford a reasonable opportunity to their employees to obtain redress for any grievance they may have. The right to obtain redress against a grievance is fundamental and a failure to provide a procedure for dealing promptly with an employee's grievances and instead allowing them to fester in an atmosphere of prevarication or indecision can amount to breach of an implied contractual term sufficiently serious to justify an employee terminating his or her employment (see W A Goold (Pearmak) Ltd. ) 33.5 The breach of the implied term of trust and confidence may consist of a series of actions or incidents on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so and the last action of the employer does not of itself have to be a breach of contract. The question is, does the cumulative series of acts taken together amount to a breach of the implied term? Further, if the employer is in breach of an express term of a contract, of such seriousness that the employer would be justified in leaving and claiming constructive dismissal, but the employee does not leave and accepts the altered terms of employment; and there is subsequently a series of actions by the employer which might constitute together a breach of the implied obligation of trust and confidence the employee is entitled to treat the original action by the employer which was a breach of the express terms of the contract as a part – the start – of a series of actions which, taken together with the employer's other actions, might cumulatively amount to breach of the implied terms. (see Lewis )."
[9]These deal with the test for constructive dismissal and the "last straw" principle, as it is known. They emerge from the following authorities, to which we will pay attention when we come to our conclusions. In Lewis v Motorworld Garages Ltd [1986] ICR 157, Glidewell LJ said as follows:
"The principles to be found in the relevant authorities can, I believe, be summarised as follows. (1) In order to prove that he has suffered constructive dismissal, an employee who leaves his employment must prove that he did so as the result of a breach of contract by his employer, which shows that the employer no longer intends to be bound by an essential term of the contract: see Western Excavating (E.C.C.) Ltd. v Sharp [1978] ICR 221 . (2) However, there are normally implied in a contract of employment mutual rights and obligations of trust and confidence. A breach of this implied term may justify the employee in leaving and claiming he has been constructively dismissed: see Post Office v Roberts [1980] I.R.L.R. 347 and Woods v W. M. Car Services (Peterborough) Ltd. [1981] I.C.R. 666,670, per Browne-Wilkinson J. (3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (See Woods v W. M. Car Services (Peterborough) Ltd. [1981] I.C.R. 666.) This is the "last straw" situation. (4) The decision whether there has been a breach of contract by the employer so as to constitute constructive dismissal of the employee is one of mixed law and fact for the industrial tribunal. An appellate court, whether the Employment Appeal Tribunal or the Court of Appeal, may only overrule that decision if the industrial tribunal have misdirected themselves as to the relevant law or have made a finding of fact for which there is no supporting evidence or which no reasonable tribunal could make…"
[10]To this principle can be added the judgment of the Court of Appeal in Omilaju v Waltham Forest London Borough Council (No.2) [2005] IRLR 35 , in which it was made clear that the application of the "last straw" principle invokes a consideration of the "last straw" being something more than utterly trivial, but nevertheless relatively insignificant, in language which Mr Bowers accepts is difficult for a Tribunal to apply, as set out by Dyson LJ. In any event, the proposition advanced is that, for the operation of the "last straw" principle, something must happen at the end of the chain of events which is more than some utterly trivial event.[11]In Morrow v Safeway Stores plc [2002] IRLR 9 EAT, Mrs Recorder Cox QC and members held that a finding that there has been conduct which amounts to a breach of the implied term of trust and confidence will mean, inevitably, that there has been a fundamental or repudiatory breach, going necessarily to the root of the contract and entitling the employee to resign and claim constructive dismissal.[12]The approach in this case, it is common ground in the written arguments of Counsel, includes an examination against a requirement that it is for the Claimant to prove the following matters:
"(1) The existence of a relevant express or implied contractual term; (2) The breach of such a term by BMI (either an actual or anticipatory breach); (3) That such breach is sufficiently serious to justify Ms Doherty's resignation, or that it is the last in a series of incidents which justifies her leaving; (4) That Ms Doherty resigned in response to the breach (the causation question); and (5) That Ms Doherty did not delay too long in terminating the contract in response to BMI's breach (waiver). See eg BG v O'Brien [2001] IRLR 496"
To those principles can be added that the activity of the Respondent, subject to the criticism, must be without cause or justification in order for it to constitute the relevant breach.[13]Before the EAT, a claim of perversity will succeed only if an overwhelming case is made (see Yeboah v Crofton [2002] IRLR 634 ) and it is not for the EAT to comb every document and every minute of a meeting in order to hold whether or not perversity has been made out.[14]A tribunal is required to make findings on the relevant issues in the case ( Meek v City of Birmingham District Council [1987] IRLR 250 (CA)), although a tribunal is not required to make a finding on every single piece of evidence which it has heard (see UCATT v Brain [1980] ICR 779).[15]In the approach to the protection given to trade unionists, the definition of trade union activities is, to use the phrase advanced by Mr Bowers, to be given a generous treatment (see Dixon v West Ella Developments Ltd [1978] IRLR 151).[16]Finally, in considering cases of constructive dismissal, notwithstanding the somewhat artificial approach to language which is involved, the two-stage test for unfair dismissal must be conducted (see Savoia v Chiltern Herb Farms Ltd [1982] IRLR 166, per Waller LJ), which is to determine whether there was a breach and what was the reason for it. The facts[17]The short summary of the facts is given by the Employment Tribunal as follows:
"7.1 From the evidence before it the Tribunal makes the following findings of fact:- 7.1.1 The Respondent is an airline whose Head Office operations are at Donnington Hall Castle Donnington East Midlands, which is close to East Midlands airport. This is the Respondent's second largest base. The largest base is at Terminal 1 Heathrow Airport ("
Terminal 1"). The Respondent operates passenger services from both these airports and a number of other destination in the United Kingdom. 7.1.2 The Applicant was employed by the Respondent as a ticket agent at Terminal 1 on 12 th June 1993. 7.1.3 On 13 th May 2000 the Applicant was elected a staff representative of the GMB, and independent trade union which had exclusive negotiating rights in respect of ground based airport staff at all the Respondent's UK operations. 8.1 The agreement between the Respondent and the GMB was set out in a Memorandum of Agreement and Terms and Conditions of Service 1996/1997 ("the GMB/Respondent Agreement") (pages66-88)."[18]The structure of the Employment Tribunal's Reasons is important first to describe the collective bargaining framework, in which the relationship between the Claimant, her employer and the recognised trade union, the GMB, was conducted. Then it turned to the history leading to the claim of constructive dismissal which is the subject of today's appeal.[19]It then considered the history of events between the lodging of proceedings before what became known as the Adamson Tribunal, and that of the Weekes Tribunal. These two pieces of notation refer to judgments respectively of an Employment Tribunal sitting at Watford under the Chairmanship of Mr B J Adamson, registered on 9 May 2002, following a four day hearing. In that case it was held that the Claimant succeeded in her case that she had suffered a detriment in that the Respondent had taken action against her for the purpose of deterring her from taking part in the activities of the GMB, at an appropriate time, and penalising her for doing so. She was awarded £2,058.82, and that was not the subject of an appeal. Her claim for unlawful deduction from wages was dismissed.[20]The Weekes Tribunal refers to another constitution of an Employment Tribunal sitting at Watford, this time under the Chairmanship of Ms Anesta Weekes QC, held over six days in 2003, registered with Summary Reasons on 11 April 2003, and registered with Extended Reasons on 13 April 2004, that is one year later. The outcome of that case was that the Claimant suffered a detriment within the meaning of section 146(1)(b) of the 1992 Act; actions taken by the Respondent were taken for the purpose of penalising the Claimant and two others for taking part in the activities of the GMB at an appropriate time. The Claimant was entitled to compensation, which was in due course assessed at £3,000.00 for injury to feelings, including £1,000.00 for aggravated damages, giving her a total of £5,986.91, including other matters. That Decision, on liability and on remedies, has not been the subject of an appeal.[21]Returning, then, to the structure of the Decision under appeal, having set out the background as it saw it, by reference to those two successful complaints made by the Claimant, broadly speaking alleging abuse of her trade union rights by the Respondent, the Tribunal then went on to consider what are described as the 17 issues before it. On its way, it concluded that both of the preceding Tribunals' Decisions could form part of its judgment in that the Adamson Extended Reasons and the Weekes Summary Reasons would be appended to the Decision. In order to make the position absolutely clear, the Tribunal incorporated the findings of fact by the two Tribunals.[22]Of the 17 issues, the Tribunal went through the list one by one, setting itself the task of determining whether they constituted cumulatively a fundamental breach of contract. It made a number of condign criticisms of the Claimant in so doing. It summarised again its conclusions at paragraph 34, when, in summary form, it disposed of each of the 17 allegations. Two, broadly speaking, were found in the Claimant's favour; the rest were rejected for a number of reasons. One of these is the subject of the cross-appeal. The outcome, therefore, was that the Claimant had not proved her case of a fundamental breach of contract entitling her to resign, although it is true to say that the Tribunal identified at least one fundamental breach (issue 10), but it did not bring about the Claimant's resignation.[23]The background to this case also includes the subject-matter of the Weekes Tribunal, which consists of a letter written by Mr Bough, who certainly in the Claimant's eyes is regarded as her excoriator since Mr Bough joined BMI and came into her working life. This letter is set out in paragraph 12.2 and is as follows:
"UNACCEPTABLE BEHAVIOUR AND PERFORMANCE OF UNION REPS. I am writing to you in relation to events of 21 st March 2002 and our subsequent meeting the same day. During my short time at London Heathrow I have attempted to work with all the GMB Union Reps in an effort to build a worthwhile and professional relationship between both parties. I did believe that we were beginning to make progress in this area and was encouraged by some of the recent discussions we had held. However, your actions on 21 st March have resulted in breaking my trust and confidence in the GMB Reps at Heathrow and have led me to have to review my position. In particular I make reference to your meeting on 21 st March. You are aware that I sanctioned that a meeting was convened at short notice on this date in the interests of working together. However, I was led to believe that the purpose of the meeting was quite different to the purpose for which it was actually convened. This level of dishonesty gives me great cause for concern. A particular concern to me was the fact that a new and unknown national officer Alan Black attended your meeting and one other GMB Official whose full name I was never provided with. Whilst I had agreed to you having 5 minutes to meet with Alan Black prior to your meeting, I never agreed for him to be in attendance at your meeting or present on bmi premises. What concerns me further is that he was introduced as the official who would be taking over matters in London and yet having investigated this matter further, your own full-time Official Jed Purkis appears to be totally unaware of this. Regardless of the purpose of the meeting what is of greatest concern to me is that you invited two external personnel onto bmi british midland company premises without my knowledge, into a secure area. You have no right to invite external personnel onto company premises without the express permission of a member of the LHR management team. These actions show a complete rack of respect for the management team at Heathrow and in addition and of most concern is that your actions demonstrate a complete lack of regard for company Security and Health and Safety. This sort of behaviour can simply not be tolerated. In addition to the meeting two GMB reps were also witnessed, during the course of the same day, disturbing employees in the workplace and putting pressure on them to sign grievance letters to the company. Again this is totally unacceptable for you to disturb employees in the workplace with union business. This is not a practice that I will tolerate. Your behaviour has again demonstrated to be completely inappropriate and you have damaged the trust that I have been trying to build. As a result you leave me with no choice but to be confident that I know exactly where you are when you are on shift and what you are doing on company premises. I therefore have no option than to take the following actions. With immediate effect you will no longer be afforded time away from work to perform union activities without the express permission of myself, until I am confident that I have sufficient trust, know where you are and can be sure that you are acting in a manner that shows proper regard for Security and Health and Safety. All other Union Time allocated to you will be suspended until I see a distinct improvement in your behaviour and attitude in relation to the LHR management team and the areas highlighted above. This includes surgery time and time to attend other formal meetings. The monthly GMB/Management meetings will also be suspended. In addition the facilities that have been afforded to you over recent weeks such as the office space will also be withdrawn. Following receipt of this letter and until I inform you in writing otherwise, if I find that any GMB Rep whilst on duty is away from the workplace performing non-work related activities without my express permission, then this will lead to formal disciplinary procedures being instigated against that individual. This in turn could lead to your dismissal. It is with extreme sadness and disappointment that I find myself having to take this action, however you recent inappropriate behaviour has left me with no choice."
[24]The relationship between the Claimant and the Respondent came to an end on[25]25 July 2003, with the Claimant accepting, at a meeting, four weeks' money in lieu of notice, whether by way of her notice to the Respondent or its notice to her is unclear, but in any event the relationship ceased on that date. The appeal[26]The way in which we will approach our assessment of the issues in the appeal is to consider the claim made by the Claimant and the response of the Respondent and to draw our conclusions as we go. This may appear to be a somewhat fractured approach, but at least it follows the analytic, event by event approach of the Employment Tribunal. We say at once that we will not deal with every single issue which has been raised on appeal, but simply those matters which it has been necessary for us to deal with in order to reach a conclusion on the disposal of this matter.[27]The first issue is the claim said by Counsel for the Claimant to be novel and without authority. Unabashed by that, Ms Rayner made the same point to us as she made to the Employment Tribunal, which is that there is, as a matter of contract, a right which corresponds in language to the three statutory rights protecting trade unionists when they carry out trade union activities. That right of action in contract is not arrived at by reason of any of the conventional tools, such as necessity, business efficacy, to make the contact workable, or to reflect the intentions of the parties. On the contrary, it is there because the statute provides such a right. In an engaging exchange with the bench, Ms Rayner said, "as a matter of logic, it must be right. There is no authority on this point." In an equally engaging exchange, Mr Bowers said it must be wrong.[28]Let us just paint a picture of how this would work if Ms Rayner were right. Today, across the road in the Strand, there would be sitting half a dozen courts, presided over by judges of the Queen's Bench, determining, for example, whether an employee of a London borough had been discriminated against on the grounds of his or her race. Some of these claims would be very old, because the time limit would not be three months but six years. The expertise in dealing with these matters, which is presently in the hands of employment tribunals, consisting, as they do, of persons with specialist knowledge of race relations, would be missing. So would the specialist judicial officer. So would the informal and user-friendly cost-free regime in which such claims are heard presently by employment tribunals. Any breach of the Race Relations Act 1976, on this thesis, would be actionable as a breach of contract. There would, of course, then be issues of costs. In a case where there had been racial harassment, one person missing from the drama would be the very perpetrator, since, whereas in an employment tribunal such person can be brought in as an aider and abetter, in a breach of contract this person would be absent.[29]That is just a brief snapshot as to why Ms Rayner's proposition is wholly misconceived in our judgment. It cannot be right that, as she put it, the range of rights set out in Professor Peter Wallington's estimable handbook, which takes pride of place on our bench, constitutes a contractual rulebook, actionable at the suit of an employee for every single breach that there is. The sole basis upon which her proposition was advanced was a passage in a book written by Mr Selwyn, in which he says that certain aspects of the statute may be the source of contractual terms. That of course is true of Equal Pay Act 1970 , the National Minimum Wage Act 1998 , the Working Time Regulations 1998 , and other statutes which directly affect the contractual relationship. But in our judgment it does not provide a justification for the implication of a contractual term covering precisely the same territory as the statute. We reject this contention.[30]The second proposition is that the Tribunal erred in law in failing to adduce the full Reasons of the Weekes Tribunal. The Mahoney Tribunal expressed its irritation that it had not had before it the Extended Reasons which it will be recalled took a year to generate from the Weekes Tribunal. Witnesses before the Mahoney Tribunal attested to the difficulty they had in giving their evidence without the full Reasons in front of them. The solicitor and Counsel then before the Mahoney Tribunal had, before their written submissions, copies of the Extended Reasons and relied upon them; and yet the Tribunal refused to read them, returning them to the parties. It may seem a surprising conclusion for a Tribunal to have drawn, but it gave as its reason that these Reasons were not extant at the time of the oral hearing, and the fact that witnesses before the Tribunal had drawn that matter to their attention.[31]The real point, however, is whether or not the Tribunal, in excluding from its vision the Weekes Extended Reasons, had committed an error of law. We accept Mr Bowers submission that essentially this is a question of fact for it. What weight it places upon any particular piece of evidence is a matter entirely within its province. Surprising it may be that it so closed its eyes to the Weekes full Reasons, but in our judgment no error of law was committed, because we accept the very pragmatic approach Mr Bowers has put before us which is that when one looks at the substance of the conclusions, in summary and extended form, it is difficult to get a cigarette paper between them. Of course, more light is shed upon the reasoning of the Weekes Tribunal by its Extended Reasons, but the gist, the essential findings and, it has to be said, the essential condemnation of the Respondent, remain unalloyed. We hold there was no error of law by the Tribunal's failure to read the Extended Reasons. It had had the substance of the Weekes Decision fully in mind, for not only did it incorporate them, but it appended them as a part of its own document. This ground of appeal is dismissed.[32]The Weekes judgment does, however, have a continuing influence in this case. It is important to look at what is presently contended as being its relevance. The substance and form were the letter which we have cited from Mr Bough. The relevance of that letter is expressly included as an issue (issue 10) by reference to what were the consequences: the Claimant issued a grievance. We accept the submission that it was not part of the very detailed list of issues for it to determine the legal impact of this letter. True it is that certain aspects of the letter have some impact on our decision. But we reject the contention made by Ms Rayner that the Tribunal was duty-bound to make a finding as to whether or not there was a breach of the implied term of trust and confidence by that letter, or by that letter in combination with other matters. If that were to have been the subject-matter of this Tribunal, it would have listed it at issue 1. It is clear to us from the boxing-off of the Weekes Tribunal, and indeed the Claimant's proceedings against the Respondent within that Tribunal, together with the Mahoney Tribunal's approach to the chronology of this case, that it sits properly in the background, and the Tribunal committed no error in failing to make a positive finding on the lines that Ms Rayner now submits to us.[33]Ms Rayner then made a number of points relating to what Mr Bowers accepts were findings which were distressing to the Claimant and which, in some cases, were superfluous. Further, some aspects of these distressing findings were not put to the Claimant and were not advanced by the Respondent below. It is true that some of these findings are harsh. But the question is not whether or not they are harsh, but whether there was evidence upon which they could be made, and whether the issues were in play at the Employment Tribunal. For example, it is contended that the Tribunal erred when it made the decision that the Claimant had operated pursuant to a deliberate decision to make life difficult for Mr Bough. We bear in mind that we have not got the full record of the proceedings. Still less do we have any indication of the atmosphere in which evidence was given. The way in which the Tribunal has approached this aspect obviously is informed by having listened to the relevant actors in this drama over the six days of this hearing. In our judgment, without a full record before us, we do not have the advantage of the Employment Tribunal, and we would not be able to make the criticism, which Ms Rayner asks us to do, of that approach to the Claimant's evidence.[34]We then turn to the resignation point and the relationship to ACAS. Here, the Tribunal adds to its findings on the 17 points the following passage:
"31. ACAS 31.1 As a result of the determination of the Weekes Tribunal the Respondent and the GMB decided to ask ACAS to conciliate to improve their relationship, which both sides accepted was in need of considerable improvement. 31.2 ACAS allocated an officer to deal with the matter. Mr Bough and other members of the management team met this individual on two occasions and Mr Purkis met with him at least once. Unfortunately, the conciliator died before a conciliation meeting could be set up between the GMB and the Respondent. 31.3 A replacement ACAS officer called Mr Tombes, was then appointed and the Respondent and the GMB agreed that Mr Blissett, who was the GMB London Regional Officer, should also be involved to assist with the issues local to Terminal 1. 31.4 The Applicant was not involved in these meetings at all and her views were not sought by the GMB. In fact she knew nothing about the ACAS meetings until she received Mr Esam's letter dated 20 June 2003. When the Applicant found out about the conciliation that was taking place through ACAS she was furious and her anger increased over the following weeks as the extent of the conciliation attempts and her complete exclusion from them became apparent. Realising that her ambitions to advance in the trade union were likely to be thwarted and her future activities likely to be unsupported, the Applicant resigned from the Respondent as a result. (The Tribunal emphasises that it is categorical in making this finding of fact. In particular, the Tribunal disbelieves the Applicant's suggestion in her evidence to the Tribunal that she did not know about the ACAS meetings before her resignation.)"
As can be seen, the Tribunal makes condign criticisms of the Claimant in paragraph 31.4. We have, with the assistance of both Counsel, examined the agreed note of the proceedings before the Employment Tribunal insofar as it relates to this matter. We have also considered the concession made by Mr Bowers that it was not his client's case that the Claimant was "furious and her anger increased" or that the categorical finding by the Tribunal was one which was urged upon it by the Respondent.[35]The essential issue is to determine why the Claimant acted as she did on 23 July 2003, or alternatively 25 July 2003, when she attended a meeting. The record does not indicate frustration at the Claimant's involvement with the GMB and their future relationship, given the tension that there appeared to be between the Derby and the London offices of the GMB. It seems to us that the Tribunal was introducing a matter of its own. This is clear from the vernacular criticism used by the Chairman and his withdrawal of that criticism following a note of intervention by Ms Rayner, on behalf of the Claimant. It thus appears to us that the Tribunal has made this finding against the Claimant without supporting material, or at least upon the basis of a comment made by the Chairman which, upon proper objection by Counsel, was withdrawn.[36]The Tribunal also found against the Claimant on her evidence that she did not know about a meeting with ACAS being set up. We have looked again at the record of that and the Claimant does indeed indicate lack of knowledge, which is contrary to the written record, as indicated by a letter from Mr Esam shortly before. Thus, at least on that aspect, the criticism of the Claimant's credibility is one which the Tribunal was entitled to make.[37]It seems to us, however, that the involvement with ACAS, because of its timing in relation to the Claimant's resignation, was a matter which ought to have been the subject of proper findings by the Employment Tribunal, and the findings which it did make, recorded above, appear to us to have been made without a foundation, or at least without the opportunity of the Claimant being able to address those issues. On a more simple basis, since that was not the case being made by the Respondent, it was unfair to make a finding upon it against her, and particularly to do so categorically, without a categorical argument being advanced and evidence being put forward.[38]We then turn to what is properly regarded as the final straw. We can sympathise with the Employment Tribunal not writing this down, for it does not emerge boldly in the written record. The final straw, it is said, was Helen Murray walking past the Claimant and telling one of her GMB members that he must speak to the Claimant because that could only be done outside working time. That, it is said, is a continuation of the lingering effect of the 28 March letter, and constitutes the Claimant's case of "last straw". It is important to understand how she put it in her witness statement, and we bear in mind that this was the subject of cross-examination; but here is her approach to it:
"135. It was during the week I was sick, that [I] realised that I could no longer continue to work whilst being subjected to bullying by the Respondent and them placing obstacles before me and the other reps at every opportunity. During my sick leave I drafted a letter of resignation. I felt that I had no choice to tender my resignation on 23 July 2003, as it was clear that the Respondent would not change the way they treated me or the union representatives."
[39]It will be seen in that paragraph that the Claimant relates both bullying and the placing of obstacles in her way. In response to Ms Rayner's contention that there is no mention by the Employment Tribunal of this matter, Mr Bowers contends that the finding by the Tribunal expressly against the Claimant's case of bullying is sufficient to encompass a finding on the "last straw". We respectfully disagree. It is clear from our citation above that two matters, bullying and obstacles, were mentioned by the Claimant. Thus they should both have been the subject of a finding by the Tribunal and were not. Since this is a case about the "last straw", at the very least a finding should have been made to determine whether or not it fell within the Omilaju (above) category. There was not. We reject the contention that the Tribunal has discharged its duty by saying that it rejected the Claimant's case on bullying, for this does not deal entirely with the case the Claimant was making.[40]We then turn to the contention that the Tribunal has misunderstood the law relating to the capacity in which Ms Doherty was conducting her duties. As we have indicated, a generous approach is enjoined upon Tribunals to deal with this matter. The Tribunal's approach to a number of the activities of the Claimant is to say that they do not concern her as she had no business interfering in those matters. There are two answers.a. Again, this depends upon the way in which the case was run by the Respondent below. It was never suggested by the Respondent that the Claimant was not, in what she did, engaging in trade union activities. We have examined the Notice of Appearance and some of the correspondence relating to these matters. At no stage does the Respondent say 'Ms Doherty, you have no business doing this for you are not a trade union representative, or this is not the proper territory of a trade union representative'. Thus it seems to us to be unfair for this point to be taken by the Tribunal when it was not taken by the Respondent. It is a good point for a Respondent to take, even against the background of generous interpretation set out in Dixon . But, to its credit, it did not. It decided to deal with the issues in the way it did. Thus, we consider it was unfair of the Tribunal to take this point against the Claimant, as it seemed to do in respect of six of the issues upon which it was determining the case, without the point being made to it.b. It follows from that that we need not deal with the second approach, which is to look at each one and see whether or not it was the appropriate activity of a lay representative in British Midland Airways at the time. But just as a matter of feel, we can understand how the Claimant responded to members' concerns about the fear of an outbreak of SARS, and would wish to raise those matters. There was undoubtedly the most prickly relationship affecting workplace relationships to do with the trade union, and it is true to say that the Claimant was required to put even her most trivial complaints in writing to Mr Bough. But, given that background, it seems to us unfair to draw fine distinctions between what was and was not within the remit of such a representative, facing the difficulties which she faced, and which, it has to be said, Mr Bough also faced, given this difficulty. Thus, on the trade union activities point, we hold that Ms Rayner's argument is correct; the Tribunal should not have determined this matter against the Claimant without it being put squarely to her, and it is not necessary for us to deal with the individual ways in which this is raised.[41]Ms Rayner also criticised the Tribunal's findings on the Claimant's credit and honesty, including the finding that the Claimant was malicious. This is a finding which would have been properly open to a Tribunal if it had been ventilated. It was not. The Respondent again, as a credit to it, did not run malice. From Lucas v Chichester Diocesan Housing Association Limited UKEAT/0713/04, we draw the conclusion that if a point, in that case it was bad faith, is to be made, it has to be made clearly in advance, so that a party, the object of such criticism, has an opportunity to deal with it. In Lucas , the case was remitted because the evidence disclosed that the bad faith point was not put. Similarly here, it is wrong for a Tribunal to make a finding of malice without that issue being put before a party who is the object of the criticism and it being put squarely by, we would have thought, the Respondent, but if the Tribunal considers the matter is relevant then it is itself bound to put the matter.[42]In those circumstances, we consider that the Tribunal has made a decision which cannot be supported. The high standard required for a finding of perversity is one which we have considered most carefully. It is sufficient for us to say that there are misdirections concerning the failure to have the matter ventilated before a decision has been made, and the way in which the Tribunal has approached the evidence of the "last straw", for us to indicate that this case should be remitted. We have unease about the submission of perversity, but we do not hold that this Tribunal committed the error in making a decision upon which there was no evidence. It is sufficient, for our judgment, to remit this case to an employment tribunal afresh, with our directions on the law, which we have given above, without our overturning it on the grounds of perversity.[43]We then turn to the question raised in the cross-appeal. It follows, for what might appear to be our very firm view about the contractual point (paas 25-27), that we find in favour of Mr Bowers' submission, and we will allow the cross-appeal. The Tribunal appear to have lost sight of the decision it had already made to reject Ms Rayner's point when it came to revisit this matter under issue 10. What remains is for the Tribunal, on remission, to consider the 17 issues which have now been refined by the Employment Tribunal, and to answer the question whether or not these acts, be they are acts or breaches of contract, cumulatively constitute a fundamental breach of contract.[44]We have also considered carefully the submission that the Tribunal, having set itself a correct direction on cumulative acts, lapsed into consideration of simple breaches of contract. We consider there is substantial force in this argument. We have indicated that in its final paragraph, paragraph 35, and in its unimpeachable address to the law, the Tribunal has considered whether cumulative acts constitute a single breach of contract, and yet in each of the 17 cases where there is a detailed examination of the issues, and in each of its conclusions, the Tribunal decides solely by reference to breach of contract. We cannot be certain that the Tribunal correctly applied its direction in looking at whether a matter, which is not sufficient to constitute a breach of contract, may yet be an act capable of adding up, in aggregate with others, to a fundamental breach of contract. For that reason too, we hold the Tribunal has misdirected itself as a matter of law. Disposal[45]We have considered the arguments addressed to us in relation to proportionality and tribunal confidence, set out in Sinclair Roche & Temperley v Heard [2004] IRLR 763 . Because of the errors we have detected, and because of the very firm criticisms made, without justification, of the Claimant as to her honesty and integrity, it would not be right to put this case back before the same Employment Tribunal. We also bear in mind that certain points have been decided without the Respondent raising them. That too is a factor. The interests of justice require this case be heard quickly, and it will be borne in mind that this will be the fourth outing of the Claimant's complaints against the Respondent. All three of us who have listened for two days to the careful arguments of Counsel have viewed with dismay the prospect of yet further litigation between these parties. This case is now back before the employment tribunal, when an opportunity arises for ACAS to conciliate. We are heartened to have seen that in the employment relationship, at least ACAS was prepared to be involved. We direct that the parties in this case, with their experienced advisers, will now consider most carefully a conciliated or negotiated solution to this long-running dispute, and will report to the Employment Tribunal within 28 days on steps which they have taken to carry out our direction. At that stage the parties will apply to the Employment Tribunal for a hearing of this matter and, if necessary, for directions to be given.[46]We would very much like to thank both Ms Rayner and Mr Bowers for their unqualified help, in writing and orally, in seeing us through the difficult issues in this case, and we hope that with their continued experience and help the parties will be able to see that their interests do not lie in further litigation of this matter. Appeal[47]An application has been made by Mr Bowers for permission to appeal, raising four issues. We will take the first and second together, for they are to do with the judgment we have given, which relates to two issues taken by the Tribunal, not advanced by the Respondent below. The short point he makes is that just because it was not raised by the Respondent below, and did not form part of the evidence, the Tribunal is not in error when it decides upon that basis. In our judgment there is no reasonable prospect of that appeal succeeding. We have seen the report of the judgment of the Court of Appeal in Uphill v BRB (Residuary) Ltd[48][2005] EWCA Civ 60 , in which the headline says it all – second appeals are truly exceptional. Technically, we are not a second appeal here, since we have, ourselves, the right to give permission to appeal. But this does indicate the parsimonious approach of the Court of Appeal to issues which do not stand out as truly exceptional. In our judgment, neither of these two points does.[49]The third ground was whether or not we had correctly construed the judgment of the Court of Appeal in Omilaju . We did in our judgment indicate that we were following the judgment of Dyson LJ, cited it, and indicated that we understood the correct approach to be that a "last straw" must be something more that "not utterly trivial". In our judgment, the Court of Appeal is unlikely to wish to revisit the law on the "last straw" so quickly after Dyson LJ's judgment.[50]Fourthly, it is contended that we have erred in our remission to a different employment tribunal. We have attempted to apply the reasoning in Sinclair Roche , and we do not detect an error which the Court of Appeal will see as having a reasonable prospect of success in the exercise of our discretion to send this to a fresh tribunal.[51]We are nevertheless grateful to Mr Bowers for his astringent approach to collating the real issues in our judgment. The application is refused.