THE HOME OFFICE v 1) MR P EVANS 2) MR I LAIDLAW [2006] UKEAT 0285_06_2609

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0285_06_2609Case No Appeal No. UKEAT/0285/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE HOME OFFICEAPPELLANT1) MR P EVANS 2) MR I LAIDLAWRESPONDENTS
Before
His Honour Judge McMullenDate 27 September 2006
[1]APPEARANCES For the Appellant MR JAMES GOUDIE (One of Her Majesty's Counsel) MS SARAH MOORE (of Counsel) Instructed by: The Treasury Solicitor (Employment Law Team) 1 Kemble Street London WC2B 4TS For the Respondent MR JAMES TAYLER (of Counsel) Instructed by: Messrs Wedlake Bell Solicitors 52 Bedford Row London WC1R 4LR SUMMARY Unfair Dismissal – Constructive dismissal Redundancy – Contractual scheme The Respondent employer represented to its recognised trade union representatives that if it were to close its immigration service at Waterloo International Terminal it would consult pursuant to a procedure incorporated in its employee handbook. But instead, following legal advice, it relied on a contractual Mobility Clause. This was a fundamental breach of the Claimants' contracts, which they accepted as repudiation, and resigned promptly having taken time to allow the Respondent to remedy its failing. The Employment Tribunal was correct to so find. It erred in finding that the Respondent's motivation was relevant but its Judgment was unarguably right. HIS HONOUR JUDGE McMULLEN QC This case is about unfair dismissal, breach of contract and, indirectly, Employment Tribunal procedure in dealing with a point which is said not to have been raised before it. The Judgment represents the views of all three members. A week after we gave it and before it was transcribed, the Court of Appeal decided Keeley v Fosroc International Ltd [2006] IRLR 961 . We clearly did not rely on it, but we note without submissions of counsel that it appears to support our view of the contract, and our reasons for refusal of permission to appeal. We will refer to the parties by name or together as the Claimants and the Home Office as the Respondent. The Claimants are members of the union which will refer to as PCS. There will be reference to Waterloo International Terminal ("WIT"), London Heathrow Airport Terminal 3 ("LHR") and a Home Office Notice ("HON") Introduction[2]It is an appeal by the Respondent in those proceedings against a Reserved Judgment of an Employment Tribunal sitting over seven days and four in Chambers at London (South), Chairman Mr I M MacInnes, registered with reasons on 7 March 2006. As today the Claimants were represented by Mr James Tayler, the Respondent by Miss Sarah Moore, today led by Mr James Goudie QC. The issues before it were as follow:
"1. This was a claim by the Claimants Mr Ian Laidlaw and Mr Peter Evans that the Respondent, The Home Office, had been in breach of Contract with them and constructively and unfairly dismissed them. 2. It was the Claimants' case that there had been a redundancy situation in the Immigration Service at Waterloo International Terminal (WIT) where they were employed that had engaged the redundancy Home Office Notice (HON) 3. The Claimants submitted that the Respondent had been in fundamental breach of Contract with the Claimants by: 3.1 Failing to follow the Redundancy HON … 3.3 Being in breach of the implied term of mutual trust and confidence in the way in which it had dealt with the closure of WIT 3.4 By seeking to apply a mobility provision in the Claimants' Contracts of Employment which did not apply, or if it did apply, that it applied that Mobility Clause irrationally and in breach of the implied term of mutual trust and confidence. It was the Claimants' case that they resigned in response to those breaches. 4. It was the Respondent's case that: 4.1 The Redundancy HON was not contractual and was in fact applied by the Respondent. 4.2 If the Redundancy HON was contractual it did not apply in the circumstances of this case, as no dismissals were anticipated. 4.3 The Claimants had Mobility Clauses in their contracts which were properly invoked by the Respondent. 4.4 The posting process undertaken by the Respondent in relation to the Claimants was not a breach of contract but was simply the mechanism by which the Respondent invoked the Mobility Clause under the Claimants' Contracts. 4.5 The Respondent denied any breach of the implied term of mutual trust and confidence. 4.6 The provisions by which the Claimants' Mobility Clauses were invoked were not irrational. 4.7 It was also the Respondent's case that the Claimants did not resign in response to the alleged breaches of contract but because they were posted to London Heathrow Terminal Four in the case of Mr Laidlaw and Terminal Three in the case of Mr Evans."
[3]The Respondent denied breach, dismissal and unfairness. The Tribunal decided in favour of the Claimants and a remedy hearing is awaited. The Respondent appeals. The Claimants rely on the Judgment of the Tribunal but Mr Laidlaw cross-appeals and seeks to affirm it on different grounds. Directions sending this appeal to a full hearing were given in Chambers by Silber J. The legislation[4]The relevant provision of the legislation is section 95(1)(c) of the Employments Rights Act 1996 which says:
"For the purposes of this Part an employee is dismissed by his employer if … - (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."
[5]Section 139 gives the definition of redundancy and section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 sets out what is required in relation to consultation with trade unions and employee representatives when a redundancy is foreshadowed. Neither of those two latter provisions is directly applicable in this case but they are important for the construction of the documents since the Respondent, in order to observe best practice in employment relations as a matter of concession, represented that it would follow those provisions. The facts[6]The Respondent is the Government Department responsible for, among many other things, control of human entry across the borders of the United Kingdom. It controlled the immigration of persons into Waterloo, a mainline train station and terminus of the Eurostar, the under-Channel train service between cities in France and Belgium and London. The position of the Claimants in the Respondent organisation is set out in the Tribunal's findings:
"6.1 Mr Laidlaw started as an employee of the Civil Service on 4 September 1961 in Scotland. He then joined the Respondent as an Immigration Officer at Terminal One, Heathrow Airport (LHR) on 27 October 1 969. His letter of appointment [page 47] makes no reference to the incorporation of the Staff Handbook or to terms as to mobility. 6.2 On 26 February 1995 Mr Laidlaw transferred to WIT as an Immigration Officer. The documentation recording his transfer [pages 67 — 71] confirms that his conditions of service remained unchanged. Again there is no reference to the Staff Handbook or to what his terms and conditions of service were. However Mr Laidlaw considered his terms of employment were contained in the Staff Handbook of which he had a copy and which he updated from time to time as amendments were issued by the Respondent. 6.3 Mr Evans started work with the Respondent on 13 November 1989 as an Immigration Officer at LHR Terminal One. His letter of appointment is at [pages 50 -51]. The letter summarised the• main conditions of service and explained that "details of condition of service applicable to civil servants are to be found in the Staff Handbook Any significant changes will be notified by means of Home Office Notices or amendments to the Staff Handbook"
. On 17 January 1995, Mr Evans transferred to WIT. He subsequently requested and was provided with details of his current conditions of employment as an Immigration Officer with the Immigration and Nationality Directorate of the Home Office in a letter dated 9 th December 1996 [pages 59 -65] which stated that "details of civil servants conditions of service are contained in a number of codes, manuals and the Staff Handbook". Paragraph 7 stated: MOBLITY "As an Immigration Officer you can be required to transfer to anywhere in the United Kingdom or abroad [page 62]". The letter to Mr Evans [page 59] confirmed that any significant changes to his conditions of service "will be notified by means of Home Office Notices". Mr Evans understood the Staff Handbook to be part of his terms and conditions of employment. 6.4 The Staff Handbook details the main rules that apply to the conditions of employment. The matters covered by the staff handbook are listed at pages [769 — 773.] The General Advice at Chapter 1 of the Staff Handbook states that:- "Changes in condition of service and staff rules affecting large numbers of staff are usually notified in HONS and where possible the latest HONS on the subject will be referred to in the Handbook". A list of extant HONS is contained in Appendix 7 of the Staff Handbook. Appendix 6 to the staff handbook [pages 740 -746] is the Redundancy HON which took effect from 1 April 1995. The Redundancy HON was issued by the Respondent after consultation with the relevant Trade Unions but was not an arrangement or agreement with the Trade Unions. 9.1 Mobility Clause The first question we address is whether the Claimants' contracts of employment contained a Mobility Clause. In the case of Mr Evans the answer is an unequivocal yes. The Respondent's letter of 9 December 1996 was categoric (para 6.3 above). His letter of appointment also confirmed that "details of condition of service applicable to all civil servants are to be found in the Staff Handbook". In the case of Mr Laidlaw we find, as Mr Laidlaw accepted in evidence, that the Staff Handbook was incorporated in his contract of employment. (and of course it is his case that as the Redundancy HON was contained in the Staff Handbook it formed part of his contract). We have found as a fact (para 6.7) that Immigration Officers are in a grade which is equivalent to or above Executive Officer. The clause was clearly apt for inclusion in his contract of employment. It is therefore our unanimous Judgment that the Mobility Clause set out in chapter 12 of the staff handbook [777] was incorporated in Mr Laidlaw's contract of employment. 9.2 Was the Redundancy HON part of the Claimant's contract of employment ? We have found that details of civil servants conditions of service are contained in the Staff Handbook. Chapter One of the Staff Handbook [776] states as follows (under linings are the Tribunal's emphasis):- 1.1 When you join Home Office you will receive a written statement of your conditions of service. Conditions of service are the rules which apply to matters such as pay, hours of work, conduct and leave. Changes in your personal conditions, for example on promotion or transfer, will normally be notified either by a letter or in the form of a general announcement in a Home Office Notice from your personnel management unit. 1.2 Changes in conditions of service and staff rules affecting large numbers of staff are usually notified in Home Office Notice (HONS), and where possible the latest HON on the subject will be referred to in the Handbook. However where the HON is constantly being updated, reference will be made to "the current" of "the relevant" HON on this subject. A list of extant HON's can be found in Appendix 7 of this Handbook. It is in continual process of being updated, so contact the ICS if in doubt. The Redundancy HON was included in full in the Staff Handbook as Appendix 6. At paragraph 50 of her submissions Ms Moore submits:- Crown Servants are exempt from the statutory redundancy provisions (section 191 ERA 1996). It would therefore be very strange if the HON were found to have contractual force since this would introduce through the back door rights and obligations which Parliament did not intend to apply to situations such as the one which the Claimant's allege existed in the present case. Moreover, the rights and obligations created would be contractual once with all the consequent remedies, so that any deviation from the procedures set out in the HON would sound in breach of contract. This would place Home Office employees in a far more favourable legal position (for example as regards standing and damages etc) than applies to the vast majority of employees who rely on the statutory remedies. We take the opposite view. It is because section 191 Employment Rights Act exempts civil service employees from the statutory redundancy provisions that a promise that notwithstanding that Crown employment is generally excluded from redundancy provisions that the Redundancy HON is necessary — and of value to the Respondent's employees. It is an offer to the Respondent's employees of something to which they would not otherwise be entitled. It was not suggested that it was an arrangement falling within section 177(3) Employment Rights Act 1996. There is therefore valuable consideration (which would not be case if the Respondent's employees were entitled to protection of the statutory provisions in any event). The offer would have been accepted by new employees accepting employment on the terms and condition contained in the Staff Handbook and by existing employees (such as the Claimants) accepting by continuing in employment without objection following its incorporation in the Staff Handbook. This was not an issue of the incorporation of a collective agreement. The Redundancy HON was not agreed with the Respondent's unions (although they had been consulted upon it). It was imposed unilaterally by the Respondent and included in the Staff Handbook. Nor do we accept that it is not apt for incorporation in the Claimants' contracts of employment by reason of the language of the document or its reference to principles. The obligations taken on by the Respondent were expressed largely in the imperative — "will" at paragraphs 1, 5, 6, 7, 8, 9, 11, 12, 14, 17,18 and 19. The language is clear and suitable for translation into contractual rights. The statement consists partly of a statement of what is contained in chapter II of Part IV TULRCA and Chapter II Employment Rights Act 1996. It would be impertinent for an Employment Tribunal to suggest that the language of those statutes is not sufficiently clear for incorporation or that compliance with would what would otherwise be the law is an aspiration or a principle. Otherwise the statement consist broadly of what the established case law expects of an employer in the situation envisaged if it is to satisfy an Employment Tribunal that it has complied with its obligations whether under TULRCA or to an individual employee in considering the reasonableness of a dismissal for redundancy. We would emphasise that we find that the matters expressed in the Redundancy HON are those which the experienced lay members of the Tribunal regard as the normal principles or guidelines that a reasonable employer such as the Respondent would adopt and abide by. In their experience they are clear guidelines which would be well understood by employers, unions and employees."[7]In addition it will be noted that the Home Office Staff Handbook was the vehicle for the employees to understand the term and conditions which related to their employment. From time to time Notes were given and new editions were published. One was published relevant to this case in October 1994. This was said by Ms Caroline Smith of Personnel, Support and Development Division to the employees:
"Please keep it safely and refer to it whenever you want to know about your conditions of service and related issues. This note explains briefly what amendments have been made."
[8]In due course, the handbook came to include appendix 6, which is in fact a more user-friendly form of the Home Office notice, which is going to be relevant in these proceedings. It appears to be in identical terms and the sequence seems to be that a Home Office notice is sent out, it is by agreement of the parties then to form to part of the contract of employment or contract of service and then it is published as an appendix to the staff handbook, which is available from the Intranet to all employees. Relevant amendments also occurred in this case on 25 July 1995 when the Redundancy HON replaced what was then appendix 6. The Redundancy HON provides as follows, as extracted by the Employment Tribunal:
"6.4 … The Redundancy HON was issued by the Respondent after consultation with the relevant Trade Unions but was not an arrangement or agreement with the Trade Unions. 6.5 The Redundancy HON follows the definition of redundancy under what is now Section 139, Employment Rights Act 1996 [para 5] and broadly follows what is now Section 188 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). However there are some relevant differences as follows:- 6.5.1 The Redundancy HON applies "in the event of redundancies possible redundancies…" (Tribunal emphasis). 6.5.2 The obligation to consult relevant Trade Unions is at paragraph 7:- "
The Department will consult both the relevant local Trade Union representatives, local Trade Union Side and Departmental Trade Union representatives at the earliest opportunity where staff surpluses arise or it is evident that they are likely to arise. This applies irrespective of the number of staff likely to be affected or whether redundancies will be voluntary or compulsory. Full details will be provided in writing to the trade unions. Consultation will be, with a view to reaching agreement, will continue throughout any redundancy exercise and will cover all aspects, including measures to avoid redundancies (see' Annex A for consultation agreements). it specifies the specific Trade Union entities to be consulted; it requires consultation to start "at the earliest opportunity when staff surpluses arise or it is evident that they are likely to arise" rather than "in good time"; it applies irrespective of the number of staff affected. 6.5.3 Paragraph 8 specifies the measures to be considered. 6.5.4 Paragraph 9 states:
"The Department will consider whether any surplus staff can be deployed elsewhere within the Home Office or elsewhere. All staff are obliged to accept suitable alternative employment and anyone who unreasonably refuses to do so will lose any entitlement to redundancy compensation. If necessary, mobile staff can be required to take suitable alternative employment within their grade or comparable grade anywhere . Non-mobile grades may be required to accept suitable alternative employment within a reasonable daily travelling distance from their home. Redundant non-mobile staff who wish to be considered for posts involving a move of home may apply for a transfer on permanent compulsory transfer terms, and where possible this will be arranged if a suitable vacancy can be found." (Tribunal emphasis) 6.5.5 Paragraph 11 provides that the unit of redundancy will be established in consultation with the Trade Unions. 6.6 Chapter 12 of the Staff Handbook [777] states the terms and conditions as to mobility 12.1:- The 'Civil Service consists of mobile and non-mobile staff. In the Home Office mobile grades are broadly those above or equivalent to EO (Executive Officer).... HON 159/1991 [pages 782 — 785] contained the Posting Guidelines. It was not clear whether this was included or referred to in the Staff Handbook. The policy regarding managed postings is at [pages 786 — 787]. We heard no evidence to enable us to establish its status."
[9]In addition it is important to note, pursuant to the commitment we have described by the Home Office, what is said at paragraph 4:
"Crown employment is generally excluded from statutory redundancy provisions but it is, and will continue to be, the practice of the Department to act in a way which is consistent with those statutory provisions and in accordance with good industrial relations practice."
[10]The facts are not in dispute and we will gratefully take them from the Respondent's very detailed submissions for they aptly describe the situation and cross refer to the Employment Tribunal Judgment ("decision"):
"8. E and L were lOs which is a grade equivalent to or above that of an executive officer (decision paras 6.7 and 9.1). 9. The HO sought to enforce the mobility obligations of E and L (together with 145 other members of staff (decision para 6.8)) because of the imminent closure of static immigration control at WIT due to the introduction of "juxtaposed controls": Following problems of illegal immigration on Eurostar trains, an agreement between the UK and French Governments in May 2002 established a system of "juxtaposed" controls whereby UK immigration controls were to take place at the Eurostar Terminals at Paris, Lille and Calais, and French immigrations controls had a mirror arrangement in the UK. From October 2002 the UK Government started discussions with the Belgian and French Governments to establish juxtaposed controls at the Eurostar terminal in Brussels. That agreement came into force on 25 October 2004 (decision para 6.9). I0. By June 2003 it had become apparent to both the HO and the Public and Commercial Services Union ("
PCS" — E's and L's union) that if the juxtaposed controls were successful the static controls at WIT would be unnecessary (decision para 6.11) (2/229). From July 2003 the HO and the PCS were in almost continuous discussion regarding the potential consequences of the closure of static control at WIT (and the consequences for staff), and by March 2004 the HO had made it clear to the PCS that there would be no need for static control at WIT and that the future of residual functions (such as admin and intelligence) was being considered (decision para 6.13). 11. From October 2003 a representative of the HO's Human Resource Department ("HRD") attended WIT once a week to discuss options for staff who wished to transfer from WIT to other locations (in view of the prevailing situation). 32 members of staff attended meetings with HRD of whom 27 identified posts into which they were managed. E and L were aware of this process but chose not to engage with it (decision para 6.14). 12. Following a report of Ms Victoria Crook dated 31 March 2004, concluding that the residual functions could be re-allocated or re deployed in other business areas, Mr Roberts took the decision to close WIT some time between 31 March and 15 April 2004 (decision para 6.15) At that time the views of the HRD, expressed internally, were that the HO would follow the procedures set out in the Redundancy HON with the consequence that if staff refused suitable alternative postings then they would lay themselves open to being dismissed on grounds of redundancy. However, at a management meeting chaired by Mr Roberts on 23 April 2004, Mr O'Shaughnessy was asked to obtain legal advice as regards his understanding of the risks and use of the redundancy mechanism (decision paras 6.16-6.17) (2/329-330 and see 2/324-325). 13. Mr O'Shaughnessy sought legal advice at the end of April 2004. Following receipt of that advice the HO took the view that the procedures set out in the Redundancy HON would not apply as the HO could instead invoke the mobility obligations and transfer staff to alternative locations. Accordingly, when the closure of WIT was communicated to staff and the unions on 13 May 2004 they were told that redundancy was not an option and that the HO would be redeploying staff in accordance with the mobility obligations contained in their contracts of employment (decision paras 6.20-6.21) (2/334-343). Staff were also informed that the HRD wanted to offer them alternative postings that best matched their individual preferences and were urged to contact HRD to discuss those preferences (decision 6.21.2). From then until October 2004 the HO held regular meetings with staff at WIT every Friday. Regular discussions with the PCS also continued (decision 6.22) and HRD staff attended WIT to consult with staff regarding alternative postings (decision 6.23). 14. By the end of June 2004, 100/145 staff at WIT had given at least one preferred new location for a managed move (decision 6.25). On 7 July 2004 Ms Balmforth of HRD drew up a process for posting those staff who refused to cooperate with HRD and express any preference at all. Staff who had not done so were asked again to express a preference by 23 July 2004. That process was discussed and agreed with the PCS (decision 6.25 —6.27, 6.33) (2/375-374, 379-380, 390-394, 399-401, 413-415, 426-425, 422). 15. Despite repeated attempts by HRD to arrange meetings with E & L, and letters and E-mails urging them to express a preference, they refused to do so or to engage in the process. This was despite the fact that it had been made clear to them that if they did not express any preferences the decision as to where to post them could only be taken on the basis of the information already held by HRD (decision 6.28 - 6.32) (E: 2/349, 361 -362, 354-355; L: 2/346, 4-2-408, 420-421, 424). 16. On 13 August 2004 E and L were informed that they would be transferred to Heathrow Airport with effect, respectively, from 31 August 2004 and 3 October 2004 (decision 6.34) (2/427-430, 409 & 433-434). By letters of 17 September 2004 they set out for the first time the reasons why the postings were unacceptable to them, although they did not suggest any alternative postings that might be acceptable. They asked Ms Balmforth to confirm that a redundancy situation had arisen and asked for a reply by 25 September 2004 (2/453-459). Ms Balmforth replied on 24 September 2004 promising to respond as fully she could to the personal issues raised but repeating that a redundancy situation had not arisen as there was no intention to dismiss staff (decision 6.34-6.40) (2/465-466). 17. E and L sent identical letters of resignation dated 24 September 2004 (decision 6.41) (2/467-468). By cover of letter dated 29 October 2004 Ms Balmforth subsequently sent L, for his reference, a letter dated 29 September 2004, replying in detail to his letter of 17 September 2004 (2/478-484)."[11]However we will add to what is said at paragraph 12 where the words appear "expressed internally", the words "and to PCS," the significance of which will appear later in this Judgment. The Employment Tribunal answered the questions posed to it by Counsel. In doing so it expressly reminded us that it was drawing heavily from its considerable experience of employment relations. We are grateful to it for injecting that experience and reality into this Judgment. It found that the HON was incorporated into the employment terms of the Claimants:
"9.2 Was the Redundancy HON part of the Claimant's contract of employment ? We have found that details of civil servants conditions of service are contained in the Staff Handbook. Chapter One of the Staff Handbook [776] states as follows (under linings are the Tribunal's emphasis):- 1.1 When you join Home Office you will receive a written statement of your conditions of service. Conditions of service are the rules which apply to matters such as pay, hours of work, conduct and leave. Changes in your personal conditions, for example on promotion or transfer, will normally be notified either by a letter or in the form of a general announcement in a Home Office Notice from your personnel management unit. 1.2 Changes in conditions of service and staff rules affecting large numbers of staff are usually notified in Home Office Notice (HONS), and where possible the latest HON on the subject will be referred to in the Handbook. However where the HON is constantly being updated, reference will be made to "the current" of "the relevant"
HON on this subject. A list of extant HON's can be found in Appendix 7 of this Handbook. It is in continual process of being updated, so contact the ICS if in doubt. The Redundancy HON was included in full in the Staff Handbook as Appendix 6. At paragraph 50 of her submissions Ms Moores submits:- Crown Servants are exempt from the statutory redundancy provisions (section 191 ERA 1996). It would therefore be very strange if the HON were found to have contractual force since this would introduce through the back door rights and obligations which Parliament did not intend to apply to situations such as the one which the Claimant's allege existed in the present case. Moreover, the rights and obligations created would be contractual once with all the consequent remedies, so that any deviation from the procedures set out in the HON would sound in breach of contract. This would place Home Office employees in a far more favourable legal position (for example as regards standing and damages etc) than applies to the vast majority of employees who rely on the statutory remedies. We take the opposite view. It is because section 191 Employment Rights Act exempts civil service employees from the statutory redundancy provisions that a promise that notwithstanding that Crown employment is generally excluded from redundancy provisions that the Redundancy HON is necessary — and of value to the Respondent's employees. It is an offer to the Respondent's employees of something to which they would not otherwise be entitled. It was not suggested that it was an arrangement falling within section 177(3) Employment Rights Act 1996. There is therefore valuable consideration (which would not be case if the Respondent's employees were entitled to protection of the statutory provisions in any event). The offer would have been accepted by new employees accepting employment on the terms and condition contained in the Staff Handbook and by existing employees (such as the Claimants) accepting by continuing in employment without objection following its incorporation in the Staff Handbook. This was not an issue of the incorporation of a collective agreement. The Redundancy HON was not agreed with the Respondent's unions (although they had been consulted upon it). It was imposed unilaterally by the Respondent and included in the Staff Handbook. Nor do we accept that it is not apt for incorporation in the Claimants' contracts of employment by reason of the language of the document or its reference to principles. The obligations taken on by the Respondent were expressed largely in the imperative — "will" at paragraphs 1, 5, 6, 7, 8, 9, 11, 12, 14, 17,18 and 19. The language is clear and suitable for translation into contractual rights. The statement consists partly of a statement of what is contained in chapter II of Part IV TULRCA and Chapter II Employment Rights Act 1996. It would be impertinent for an Employment Tribunal to suggest that the language of those statutes is not sufficiently clear for incorporation or that compliance with would what would otherwise be the law is an aspiration or a principle. Otherwise the statement consist broadly of what the established case law expects of an employer in the situation envisaged if it is to satisfy an Employment Tribunal that it has complied with its obligations whether under TULRCA or to an individual employee in considering the reasonableness of a dismissal for redundancy. We would emphasise that we find that the matters expressed in the Redundancy HON are those which the experienced lay members of the Tribunal regard as the normal principles or guidelines that a reasonable employer such as the Respondent would adopt and abide by. In their experience they are clear guidelines which would be well understood by employers, unions and employees."[12]Further, it found that the Mobility Clause was in effect subject to the operation of the HON and in particular paragraph 9 of the HON. It went on to consider the effect of the change of mind of the Respondent's officers from originally representing that the Redundancy HON would apply, to later indicating that the mobility terms would apply and therefore the Redundancy HON would not. The Tribunal found that the Redundancy HON was engaged when Mr Roberts decided between 31 March and 15 April to close and cease operations at WIT and that in due course the Respondent changed its mind following, as a matter of chronology, legal advice. The Tribunal went on to find, however, that it did so in order to avoid entering consultation with the relevant trade union so as to adopt the most profitable attitude at the end of the day.[13]The Tribunal described what the nature of the breach was and it did so in a way which is helpful to analysing its findings, for it suggested what would have happened, as best it could construct it, had the Respondent acted in accordance with the Redundancy HON and in doing so had it complied with, rather than breached, it. These were as follow:
"9.4.1 The Respondent would have informed the relevant Trade Unions that a redundancy situation existed, that the Redundancy Hon applied and consulted the relevant Trade Union bodies in accordance with Clause 7 of the Redundancy HON "at the earliest opportunity". 9.4.2 It would have provided full details in writing. 9.4.3 It would not have refused to accept the Redundancy HON applied and it would not have refused requests from the PCS and Wedake Bell to apply it. 9.4.4 It would have accepted that the PCS was entitled to be consulted in the manner and on the terms set out in the Redundancy HON. It would not have refused to consult with the PCS on any of the matters in paragraph 8 of the Redundancy HON other than its proposal for permanent compulsory transfers using the mobility clause. In particular it would not have refused to consult as requested by the PCS on the possibility of volunteers for Compulsory Early Retirement/Severance terms. 9.4.5 The exchanges at the meeting on 13 July (paragraph 6.26 above) would not have taken place. 9.4.6 The Respondent's letters of 9 and 13 August would not have been written. 9.4.7 The Claimants would not have conducted themselves and they did as described in our findings of fact at 6.28 and 6.29 above. The events that led to their resignations would not have happened."
[14]The Tribunal decided additionally that the Respondent was in breach of the term of mutual trust and confidence. It addressed itself to Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606 , [1997] IRLR 462 , and applied this test:
"The employer should not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage a relationship of confidence and trust between employer and employee."
[15]The Tribunal found that the Respondent had changed its mind and deliberately invoked the Mobility Clause to avoid the requirement to consult the Claimants' trade union. It also held that the Respondent's motivation was not demand led, that is to say the use of the Mobility Clause was not invoked by the Respondent to meet a particular business need for immigration officers. That was conduct calculated to destroy the relationship or seriously damage it and thus was a breach of the implied term.[16]The Tribunal then considered what the consequence of that was, following application of the Judgment of the Court of Appeal relating to constructive dismissal cases in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 / [1978] IRLR 27 . In this respect, the Tribunal held that there was a continuing and fundamental breach of the relationship which the Claimants finally accepted on 28 September 2004 when they resigned, in reaction to a matter of 24 September 2004 during which it was said that the Claimants were in fact already transferred. The Tribunal found that there was no reason for the constructive dismissal and thus technically the dismissals were unfair but the Tribunal went on to hold that the dismissals would in any event have been unfair because the Tribunal had acted unreasonably in treating what, on this footing, was a redundancy as sufficient for dismissing the Claimants. Submissions, discussion and conclusions[17]Since the appeal divides into neat sections we will describe the arguments and give our conclusions as we go. The Respondent submitted that the Tribunal had erred in law, in a submission by word count substantially longer than the Judgment and counsel's submissions to it below. Does this simply reflect the complexities of the case on appeal or is it a classic example of the vice identified by Lord Denning, MR, relied on in his overview of the appeal by Mr Tayler in Hollister v National Farmers' Union [1979] ICR 542?: 2. The Notice of Appeal [1/42] sets out, in 13 pages, 9 grounds of appeal, 34 sub-grounds of appeal, including 9 specific allegations of perversity and/or irrationality. It invites the Employment Appeal Tribunal to reconsider numerous factual determinations reached after 7 days of hearing, consideration of 1,042 pages of documents, 4 days of deliberation in Chambers with the assistance of 37 pages of submissions from the Home Office and 22 pages of submissions on behalf of Mr Evans and Mr Laidlaw. This is contrary to the guidance given in Yeboah v Crofton [2002] IRLR 634 (at paragraph 12) where Lord Justice Mummery warned against perversity appeals based on detailed submissions seeking to overturn factual determinations on consideration of only part of the vast expanse of evidence available to the Employment Tribunal. 3. As Lord Denning stated in Hollister v National Farmers' Union [1979] ICR 542 at 542, 553:
'In these cases Parliament has expressly left the determination of all questions of fact to the [employment] tribunals themselves... . It is not right that points of fact should be dressed up as points of law so as to encourage appeals. It is not right to go through the reasoning of these tribunals with a toothcomb to see if some error can be found here or there—to see if one can find some little cryptic sentence.'
[18]Each side in trenchant terms charges the other with impermissible tooth-combing. The words "bizarre", "blatant", "patent" and "plainly wrong", together with an accusation "the Tribunal engaged in a frolic of its own" pervade the submissions of the Respondent, and to some extent are responded to in kind by the Claimants. What is suggested is that the Tribunal made impermissible findings of fact and failed properly to construe the relevant documents. The Redundancy provisions[19]Mr Goudie accepts that it is not necessary for the success of this appeal for this part of the case to succeed and that it may not be sufficient. However, other grounds are relevant. In order to understand the way in which the argument has developed it is necessary to look at the two relevant authorities. First, in Alexander v Standard Telephones and Cables Ltd (No. 2) [1991] IRLR 286 the question of incorporation of terms in a collective agreement was considered by Hobhouse J, where he said this:
"31. The principles to be applied can therefore be summa rised. The relevant contract is that between the individual employee and his employer; it is the contractual intention of those two parties which must be ascertained. In so far as that intention is to be found in a written document, that document must be construed on ordinary contractual principles. In so far as there is no such document or that document is not complete or conclusive, their contractual intention has to be ascertained by inference from the other available material including collective agreements. The fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incor porated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express incorporation, but a matter of inferring the contractual intent, the character of the docu ment and the relevant part of it and whether it is apt to form part of the individual contract is central to the deci sion whether or not the inference should be drawn. 34. Turning to the collective agreements themselves it is convenient to take the Wall agreement first. It expressly states that it is a 'procedure' agreement. Thus, on a simplis tic application of the language of Mr Justice Scott, one would conclude that it was not apt to be incorporated. However, it is of course necessary to examine the character of the agreement and its relevant parts more closely before reaching a conclusion. It is undoubtedly primarily a policy document applicable to the relationship between the un ions and the company. It also is specifically concerned with procedure. Thus the third clause under the heading 'Joint consultation' lays down a procedure and it is within that scheme that individuals are to be selected for compulsory redundancy. Indeed, all the first five clauses of the agreement are clearly inappropriate for application to or incor poration in individual contracts of employment. 36. Clear and specific express words of incorporation contained in a primary contractual document could displace this conclusion, but on any view the wording if the statutory statements in the present case do not suffice."
[20]That Judgment, albeit parts of it were recognised to have been made without it being necessary for the issue, was approved by the Court of Appeal in Kaur v MG Rover Group Ltd [2005] IRLR 40 , where again the Court was called upon to consider whether terms of a collective agreement were incorporated into an individual employee's contract of employment and were also apt for individual enforcement. Keene LJ, giving the judgment with which Parker and Brooke LJJ agreed, said this:
"15. Like the judge below, I find this argument wholly unpersuasive. The character of the principles part of The New Deal is overwhelmingly aspirational, as the opening paragraph and paragraph 9, set out earlier, illustrate. Even though there are some limited elements of the agreement part which are incapable of being legally enforced as part of an individual contract, there can be no doubt that a deliberate distinction was drawn between the principles part and the agreement part of this document by those who were party to it. It is entirely understandable that the former part was said to consist of "principles", since they are for the most part expressed in terms of general purpose." 28. I return therefore to that vital issue of incorporation. On this it is the respondent's case, first, that the entire wording of The Way Ahead became part of the individual contract of employment, because the standard conditions of employment provided that employment with the company was "subject to" collective agreements made with the recognised trade unions. This first contention, however, overlooks the fact that the standard conditions of employment actually state that "employment with the company is in accordance with and, where appropriate, subject to... collective agreements". (my emphasis) Moreover, parts of The Way Ahead are clearly inapt for a role as contractually binding terms. Thus paragraph 10 refers to "a commitment by management and trade unions to communicate effectively on business issues."
That cannot sensibly be regarded as having been incorporated into the contracts of employment of individual employees. The document as a whole cannot have been intended to have been so incorporated and the words "where appropriate" make that clear. The individual paragraphs in The Way Ahead have to be considered to see whether, in any particular instance, the provision is apt for incorporation. 32. That issue is one to be resolved by looking at the words relied on in their context. That context contains a num ber of features, which seem to me to indicate that those words are expressing an aspiration rather than a bind ing contractual term. First, the preceding sentence in the same paragraph is important. It describes enabling employees who want to work for Rover to stay with Rover as 'an objective,' something therefore which it is hoped to achieve. But that objective is the very same thing as say ing that there will be no compulsory redundancy. It is only if the objective is achieved that there would be no compulsory redundancy. It follows that the character of the crucial second sentence is to be viewed in the light of the first sentence, indicating that this is an objective, rather than a binding promise."[21]The references above to Scott J are to his seminal Judgment in the leading authority National Coal Board v National Union of Mineworkers [1986] IRLR 439. With those authorities in mind it is gratifying to note that the parties in this case accept that the HON and appendix 6 of the handbook, for they are the same thing, are incorporated into the contract of employment. The question which arises on appeal, however, is whether any part of it is apt for individual enforcement and gives grounds for a claim in contract if it is breached. It is contended by Mr Goudie that in light of the statutory exemption for Crown servants from these provisions of employment protection legislation it is unlikely that the Government would in its relations with its servants have given as much, or even more, protection to them when compared with other employees.[22]That was the same argument as was addressed and dismissed summarily by the Employment Tribunal and we agree with the Tribunal. There is no inconsistency in the Government deciding that it will, as it represents it will (see paragraph 9 above), do as good by its own employees as employees in the outside world can do. Nor is there anything wrong with greater protection being offered to them given that, as they are warned in their conditions, they are engaged by the Crown at will.[23]Examination of the HON reveals a number of terms which are unarguably apt for incorporation and individual enforcement. For example, periods of notice are set out in paragraph 15 and compensation terms are referred to in paragraph 20; staff may appeal. All of those are specifically, individually enforceable. What is relevant to the construction of this document is its title, which is Principles and Procedures. The fact that it sets out the principles and procedures which will be applied in the event of redundancies or possible redundancies, see paragraph 1, and the statement of a general approach, does not mean certain parts of it are not enforceable. A number of expressly legally enforceable obligations is referred to here. The definition of redundancy is taken from the statutory framework so that if an employee wishes to know whether redundancy exists he or she can look at the statute and can look at judgments within the employment jurisdiction applying it. Similarly clause 8, Measures to Avoid Compulsory Redundancy, includes the kind of material that would be the subject of a consultation with a trade union: see section 189 of the 1992 Act.[24]Coming then to the heart of this document, the general approach to which we have referred, paragraph 6, is plainly not enforceable. It is an aspiration. It is the representation by the Home Office of its policy and the way in which it will approach the problem of redundancy. However, paragraph 7 is directly enforceable. This is in unambiguous terms an undertaking by the Home Office that it will consult trade unions. This, it seems to us, does not contain any weakness, as Hobhouse J put it at paragraph 35 in the Alexander case. There is no question of the Home Office undertaking merely to consider matters. It is a direct responsibility undertaken by it to consult trade unions. When it consults trade unions then the matters set out in paragraphs 8 and 9 will apply. True it is, as Mr Goudie argues, that here we come across a duty simply to consider, which is, it has to be accepted, a weaker obligation. But these two paragraphs have to be seen as part of the consultation required in paragraph 7, and thus those matters will form part of the obligation. Paragraph 9 deals with transfers and it will be to this that we will return when we consider the second ground in this appeal.[25]So we can well understand how an employee, faced with what appears to him or her to be a redundancy situation, will look for guidance in the handbook as to what their rights are. It has to be said that there has been some misunderstanding or perhaps imprecise language used by the actors in this drama at workplace level. Redundancy is used sometimes to indicate in statutory terms that there is a cessation of the needs of an employer for employees to do work at a particular workplace. On the other hand it is used to mean a dismissal for such a reason and we can understand how some confusion can arise when people say "we are not making redundancies".[26]Nevertheless, the terms of the HON are clear and insofar as they relate to the issues presented to the Employment Tribunal by the Claimants, we hold that they are apt for individual enforcement. These are of benefit to them. One only has to look at the way in which the Tribunal has described what would have happened had the Respondent gone about it properly to see what benefits the Claimants would have received. As they put it in their claims to the Tribunal, they were seeking financial compensation for three months, which is the 90 day period provided by statue if the consultation duty is breached. They were looking at what could be awarded by a Tribunal had it found that the duty applied and that there had been a breach of the statutory provisions and had decided to award the maximum amount of compensation. Nevertheless, Mr Tayler has described to us other benefits which obtain to the employees and we accept them. The employees wished an acknowledgement from their employer that there was a redundancy situation and that that would trigger the methods of avoiding or mitigating the redundancies set out in the HON, and if not would result in the compensations being paid by way of paragraphs 15 and 21.[27]There may be other benefits. It is sufficient for us to hold that there is a very real benefit to a group of employees in knowing that its employer is under a contractual duty to consult its recognised trade unions on their behalf in advance of dismissals for redundancy, thus we uphold the Tribunal's Judgment. The Mobility Clause[28]The starting point for this examination is the Judgment of the EAT in Curling v Securicor Ltd [1992] IRLR 549, a Judgment of Knox J (Deputy President) with members. This was a case where there was, to borrow a phrase from elsewhere in this case, juxtaposition between an employer's assertion that it had the right to implement a Mobility Clause and an employee's right by statute to redundancy payment. The EAT said this:
"11. The Mobility Clause was, the Industrial Tribunal found, never mentioned at any stage before the hearing before the Industrial Tribunal when it was relied upon by counsel for Securicor. It was not even mentioned in Securicor's notices of appearance. The Industrial Tribunal stated, and we agree, that if an employer is going to rely on or avail himself of the benefit of a Mobility Clause in a situation of job or location changes, he must make his position clear in that respect. That was never done. This is a finding which is contained in the second part of the Industrial Tribunal's decision but which, in our view, is a highly material one also on the question whether the employees were dismissed by Securicor which is dealt with in the first part of the decision. … 14. There are two quite difference attitudes which an employer can take in a situation such as arose at the Beehive at Gatwick, of the closing down of a part of his business. The employer can invoke the Mobility Clause in the contract and require the employee to go to a new location or job, if the clause entitles him to do so, whereupon no question of redundancy will arise. Alternatively, the employer can decide not to invoke the Mobility Clause and rely instead on alternative suitable offers of employment as a defence to claims to a redundancy payment. In the former example, the original employment continues, in the latter it ceases but is replaced in circumstances which, unless the employee unreasonably refuses the offer of suitable alternative employment, provide the employer with continuity of employment bit relieve the employer of liability to make a redundancy payment. That the employers cannot do is dodge between the two attitudes and hope to be able to adopt the most profitable at the end of the day."
[29]Paradoxically, reliance was placed by both parties on this Judgment as assisting their cases. We accept Mr Goudie's submission that there is no principle of law that if an employer is closing down a business it is not entitled to invoke a Mobility Clause. However, Curling makes clear that there can be no dodging between the two, mobility and redundancy. It must be recognised that the EAT in Curling was dealing with a situation where there had never been a live issue as to whether or not the Mobility Clause could apply. It was invoked by the employer at the hearing and not at the time of dismissal. Mr Tayler contends that Curling is not authority for the proposition that an employer with a Mobility Clause can invoke it and in effect trump a contract incorporating a redundancy procedure as there is here.[30]We accept Mr Tayler's submission on this point and return to the point we alluded to in paragraph 11, which is the timing. The Tribunal made the finding that on 15 April 2004 PCS had been informed of the closure of static control at WIT in July 2004. It is important to place it in context. The previous representation to the workforce was as a meeting on 3 March 2004 when this was said according to the minutes (ST being the relevant senior union official):
"ST advised he had received recent correspondence from RC, Margaret Money and Dave Roberts in response to a number of concerns that had been previously raised by PCS. Managed postings of WIT staff – ST asked what the situation was with the closure of WIT. RC advised that a firm decision to close WIT had not been taken. He was aware that if such a decision was taken, agreed procedures would be followed; it was understood that a 6 – month consultation process with the relevant unions would be required. He confirmed that the lease on UKIS accommodation expires on 15 November, and this had a 6-month clause in which any extension to the lease would have to be finalised. He believed that given the moves towards juxtaposed controls there would not be the need for all the current accommodation. Consideration was being given to the ports viability and its component parts."
[31]Thus it was that the Claimants through their union were under the impression that if a decision was taken to close WIT the agreed procedures would be followed (the agreed procedures are the Redundancy HON). By 15 April 2004 that decision had been overtaken, for the evidence behind the finding of the Tribunal is this:
"Roger Cockerell started the meeting by thanking all for attending. He then went on to talk about the letter he sent to the union representative Stephen Tayler and Mark Hammond regarding the closure of the static control at Waterloo. The French authorities signed the Tri-Partite administrative agreement on 14 April 2004 and the British and Belgian authorities are due to sign sometime today (15 April 2004). RC stated that he has made clear to both staff and unions this agreement would make an irrecovable change at WIT. Short-term juxtaposed staffing would be introduced in Brussels from week beginning 4 May. Infrastructure in Belgium to support juxtaposed working is in place. The closure of the static control at Waterloo will be in July."
[32]It is plain from those minutes that the union representatives did not demur from the proposition that Waterloo would close and that presumably the Redundancy HON would be applied to mitigate the effect on individuals of that essentially business decision. That was the position until legal advice was obtained on about 6 May 2004, which indicated that reliance should not be placed by the Respondent on the Redundancy HON but on the Mobility Clause. Mr Goudie in his submissions repeatedly told us that the change of mind was simply an internal matter and that the Respondent was entitled to change its mind before finally and publicly announcing its position. That, with respect, is plainly wrong as both the evidence before the Tribunal we have cited and its finding make clear. Up to 15 April the Respondent's position that the Redundancy HON would apply is consistent with its representations made on 3 March. What happened thereafter was indeed a change, so that when full disclosure was made to the staff on 13 May 2004 the Redundancy HON was out and mobility was it. That, in our judgment, represents the kind of doging found to be unacceptable in Curling and so Mr Tayler is right in his reliance on Curling for this proposition. The Respondent in our case invoked the Mobility Clause after changing its position and thus Curling applies.[33]The interrelationship between the clauses is also relevant, as we hinted at earlier. We accept the submission of Mr Tayler that, albeit there is a Mobility Clause which may be operated at any time and is of unrestricted width, when there is a redundancy situation paragraph 9, together with paragraph 7, require an attenuation of that approach. For example, when a redundancy is on foot there will be consultation about temporary or permanent transfers to other areas. That will occur pursuant to consultation over measures (see paragraph 8 of HON) and the transfers there referred to will be only to what are regarded as suitable alternative employments for which there may be a reasonable objection by an employee.[34]Whatever may be the practice of the Respondent in operating the Mobility Clause in the absence of a redundancy agreement, and we understand that there is some degree of tolerance, the fact is that the question of transfer to alternative positions is more narrowly circumscribed in the HON than it is in the Mobility Clause. In our judgment, the Tribunal was correct to hold that the Mobility Clause must be read in the context of the HON so that where, as the Tribunal put it, the HON is engaged, it is transfers pursuant to paragraph 9 which will be considered. The employer has a choice and it chose in this case to tell the unions how it was going to handle it under the Redundancy HON and then changed. Necessity for transfers[35]This also relates to the application of the Redundancy HON. It is contended by Mr Goudie that the Tribunal was wrong to hold that the Respondent was obliged to consider, as part of its consultation, the necessity of the application of the Mobility Clause. We think it follows from our analysis of the relationship between these two clauses that Mr Tayler is correct in his submission. The Tribunal was right: as part of the consultation it was necessary to make transfers. That seems to us to be the purpose of the consultation in paragraph 7 over measures in paragraph 8.[36]It is also instructive to consider the Judgment of the EAT in High Table Ltd v Horst [1997] IRLR 513 (CA) for the definition of a redundancy where a Mobility Clause exists. Peter Gibson L J said this:
"I am in broad agreement with this interpretation of the statutory language. The question it poses — where was the' employee employed by the employer for the purposes of the business? — is one to be answered primarily by a con sideration of the factual circumstances which obtained until the dismissal. If an employee has worked in only one location under his contract of employment for the purposes of the employer's business, it defies common sense to widen the extent of the place where he was so employed, merely because of the existence of a Mobility Clause. Of course, the refusal by the employee to obey a lawful requirement under the contract of employment for the employee to move may constitute a valid reason for dis missal, but the issues of dismissal, redundancy and rea sonableness in the actions of an employer should be kept distinct. It would be unfortunate if the law were to encour age the inclusion of Mobility Clauses in contracts of employment has recognised the importance of the employee's right to a redundancy payment. If the work of the employee for his employer has involved a change of loca tion, as would be the case where the nature of the work required the employee to go from place to place, then the contract of employment may be helpful to determine the extent of the place where the employee was employed. But it cannot be right to let the contract be the sole determi nant, regardless of where the employee actually worked for the employer. The question what was the place of employment is one that can safely be left to the good sense of the industrial tribunal."
[37]In other words there can still be a redundancy where there is a Mobility Clause. Fundamental beach[38]This ground alleges that the Tribunal erred in finding that there was a fundamental breach by the Respondent in failing to carry out its obligations under the Redundancy HON. In any event it is contended that the actions taken by the Respondent remedied whatever breach there was for proper consultation with PCS and with the individuals, both in practice and certainly on offer. We consider the treatment of this matter relates to our analysis of the Redundancy HON. There can be few things of more importance to an employee than understanding how he or she stands in the event of a redundancy. One of the matters is ensuring that the matter is handled fairly and humanely as between him or herself and other employees. That is why they belong to trade unions which are recognised for the purpose of this consultation.[39]In principle, we can see no reason why an employee cannot enforce, at least by a claim in damages, the right to have his or her union consulted. Since the Tribunal found correctly that the Redundancy HON was incorporated, it was entitled to see what would happen had there not been a breach and the Tribunal has set that out.[40]Leaving aside the reason why the Respondent did not carry out the HON, we hold that a repeated refusal over time, when different circumstances were put to it, to apply the Redundancy HON was a fundamental breach, or at least if this is a matter of fact the Tribunal was entitled to so conclude on the evidence before it. Dodging[41]It is contended on behalf of the Respondent that the Tribunal erred on holding that there was a breach of the implied term of mutual trust and confidence because of the change in position of the Respondent, indicating first that the Redundancy HON would apply and then not. In our judgment there is considerable force in Mr Goudie's submission, based upon the way in which the point was put to the Tribunal and upon the Tribunal's drawing of inferences. His complaint is that the Tribunal wrongly inferred that the Respondent decided to invoke the mobility obligations in order to avoid the requirement to consult PCS under the HON and he contends that that is perverse. He draws upon the facts that there had been long consultation with PCS prior to and after the announcement. Secondly, the fact that the Respondent changed its mind after legal advice cannot give rise to an implication that the reason for not consulting PCS was to avoid it. Thirdly,there was no basis for the criticism based upon Mr Roberts' approach, that is, that there was in his mind, demonstrated by the coincidence of dates, a connection between his refusal to follow the Redundancy HON and the requirement to give six months' notice for the expiry of the lease on the Respondent's premises at Waterloo.[42]Mr Goudie further contends that the Tribunal's conclusion was wrong in law based on the correct test for the loss of mutual trust and confidence as set out for example in United Bank v Akhtar [1989] IRLR 507 , and Clark v Nomura International [2000] IRLR 766. As we say, there is some force in those arguments but we hold nevertheless that the Tribunal was unarguably correct when it held that there was a breach of the implied term of trust and confidence by the simple fact that the Respondent would not adhere to the Redundancy HON. Motivation is irrelevant as Mr Goudie correctly submits. Yet we consider that the finding by the Tribunal, stripped of the impermissible inferences which it has drawn, nevertheless is unarguably correct. Mobilising his phrase, a "blatant" refusal to apply a contractual procedure for handling redundancy is capable of being a fundamental breach. We cannot criticise the Tribunal for its depiction of it as such; indeed it was right, in out judgment.[43]It follows that, although there were traces of evidence relating to Mr Roberts, approach to the lease, the plain reason why Mr Roberts took the decision which he did on 13 May to invoke the Mobility Clause was a response to the legal advice and not manipulation of the termination of the lease or of a desire not to consult PCS under the HON. Resignation[44]This ground relates to the resignation and it is contended that the Tribunal erred when it held the Claimants resigned because the Respondent failed to carry out the HON. We were concerned about the delay between what was said to be the trigger, that is the letter of 13 May 2004, and the termination by the Claimants of their employment on 28 September 2004. It follows from our acceptance that this was a fundamental breach that, applying the principles in Western Excavating , employees must act in response to it and promptly. It is said by Mr Goudie that four and a half months is not prompt. We agree. It is a powerful argument. However it does require a consideration of what occurred during the intervening period. For this the Judgment of the EAT in W E Cox Turner International Ltd v Crook [1981] ICR 823, Browne-Wilkinson J (President) and members is persuasive:
"13. It is accepted by both sides (as we think rightly) that the general principles of the law of contract applies to this case, subject to such modifications as are appropriate to take account of the factors which distinguish contracts of employment from other contracts. Although we were not referred to cases outside the field of employment law, our own researches have led us to the view that the general principles applicable to a repudiation of contract are as follows. If one party ('the guilty party') commits a repudiatory breach of the contract, the other party ('the innocent party') can choose one of two courses: he can affirm the contract and insist on its further performance or he can accept the repudiation, in which case the contract is at an end. The innocent party must at some stage elect between these two possible courses: if he once affirms the contract, his right to accept the repudiation is at an end. But he is not bound to elect within a reasonable or any other time. Mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation: Allen v Robles (1969) 1 WLR 1193. Affirmation of the contract can be implied. Thus, if the innocent party calls on the guilty party for further performance of the contract, he will normally be taken to have affirmed the contract since his conduct is only consistent with the continued existence of the contractual obligation. Moreover, if the innocent party himself does acts which are only consistent with the continued existence of the contract, such acts will normally show affirmation of the contract. However, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation: Farnworth Finance Facilities Ltd v Attiyde (1970) 1 WLR 1053. 16. On balance we think that the Industrial Tribunal misdirected itself by concentrating on the delay as being the only evidence of affirmation of the contract by Mr Crook, whereas the most cogent evidence of such affirmation was his continued performance of the contract which they did not advert to. 17. We have hesitated in reaching this conclusion because, immediately before posing the question we have quoted, the Industrial Tribunal referred to passages in the judgment of Slynn J in the Bashir case [1979] IRLR 295 which draw attention to the fact that delay is only evidence of affirmation and that other factors may be relevant. However, the only question they pose to themselves is unequivocally limited to the impact of delay, and we therefore reach the conclusion that inadvertently the Industrial Tribunal overlooked the other factors,. Therefore the decision of the Industrial Tribunal cannot stand."
[45]Applying that to this case, the evidence before the Tribunal indicated not just a reiteration by the Respondent of its position first given on 13 May. The Claimants resisted that approach and took steps to use the words of Browne-Wilkinson J to get the employer to remedy it. There was communication and it has to be said the Tribunal was critical of the Claimants in their responses, but there was an attempt to shape the response of the Respondent and to get it off the straightforward decision it had made in May.[46]As late as 17 September 2004 the Claimants were indicating difficulties with the suggestion that they move to Heathrow but on 24 September 2004 Miss Banforth summed up her position as follows:
"As an immigration officer which is a mobile grade you can be required to transfer anywhere in the United Kingdom or abroad and you have been transferred to Terminal 3, Heathrow Airport."
[47]The Tribunal found that that was the final stage in the process. It seems to us applying W E Cox v Turner that the assessment of whether an employee has acted promptly is one of fact and degree. It cannot be said that there was mere abstention by the Claimants in this case, indicating that they were sitting on their hands doing nothing. The Tribunal was entitled on the basis of the correspondence to hold that the Claimants were continuing to get the Respondent to remedy what they saw as the breach to make it easier for them. Indeed it was only when they received the letter of 24 September that, as the Tribunal found, they accepted the repudiation. Thus we hold the Tribunal made no error in its connection between the fundamental breach and the Claimants' response to it. The reason for dismissal[48]The submission here is that the Tribunal was wrong to find that the Respondent had not shown the reason for the dismissal. With respect to the Employment Tribunal, we disagree and uphold Mr Goudie's submission. As a matter of logic, the reason for dismissal, or even the reason for insisting upon the Mobility Clause, however it is put, it does not matter, was redundancy as determined by the definition in the HON. Thus we will substitute our Judgment for that of the Tribunal and hold that the reason for dismissal was, as advanced by Miss Moore, Junior Counsel appearing at the Tribunal, redundancy and we think that that follows as a matter of logic from Mr Tayler's submission that this was indeed a redundancy.[49]However, that does not rescue the submission on ground eight for the Tribunal went on to hold that there was unfairness in the handling. In other words, even if the Respondent crossed the threshold in section 98(1) and (2) of the Employment Rights Act, the dismissal was still unfair. That involves no elaborate engagement of questions of incorporation. There was a redundancy procedure, either by contract or otherwise, which was not followed. The Respondent dismissed the Claimants in those circumstances and there was ample basis on which the Tribunal could hold that there was unfairness. Procedural fairness[50]It is contended the Tribunal failed to act fairly because the Tribunal took into account matters which had not been urged upon it. These relate to the attitude of Mr Roberts, which we have described above. We found that Mr Goudie's arguments have force. But the findings relating to the motivation of Mr Roberts do not impugn the Judgment as a whole. The approach of the Court of Appeal in Judge v Crown Leisure Ltd [2005] IRLR 823 deals with such a situation, for Smith LJ, giving the Judgment with which Sir Martin Nourse and Mummery LJ agreed, said this:
"21. However, the giving of such an opportunity is not, in my judgment, an invariable requirement. That is so for two rea sons. First, para. 11 of the Employment Tribunal Regula tions gives the ET a wide discretion on procedural matters. It seems to me that that discretion is wide enough to encom pass a decision as to the appropriate course to take where this kind of situation arises. In any event, if the legal effect of the findings of fact that are to be made is obviously and unarguably clear, no injustice will be done if the decision is promulgated without giving that opportunity. Even if an opportunity should have been given and was not, the con sequence will not necessarily be that an appellate court will set aside the decision of the lower court. It will only do so if it concludes that the lower court's application of the law was wrong."
[51]It is a basic rule that decisions adverse to a party should not be made without an opportunity being given to make its point. But in this case, the two criticisms which we uphold do not effect the central question as to whether or not there was a breach by failing to implement the HON. Mr Laidlaw's cross-appeal[52]Finally we deal with the cross-appeal, relating to Mr Laidlaw. With respect to Mr Tayler, this cannot survive the clear findings of fact of the Tribunal, which otherwise he prays in aid. The Tribunal was entitled to find on the basis of what Mr Laidlaw told it that he was subject to the Mobility Clause and its Judgment was entirely correct.[53]We would very much like to thank all three Counsel for their very concise oral submissions to us. The appeal is dismissed. Permissions for the Home Office to appeal to the Court of Appeal on one point refused [reasons not transcribed].