THE SECRETARY OF STATE FOR JUSTICE v MS D J SLEE [2007] UKEAT 0349_06_1907

EMPLOYMENT APPEAL TRIBUNAL

AND IN THE HIGHT COURT OF JUSTICE

BAILII case number: [2007] UKEAT 0349_06_1907

Case No Appeal No. UKEAT/0349/06

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

THE SECRETARY OF STATE FOR JUSTICEAPPELLANT

MS D J SLEERESPONDENT

Before

Mr Justice Silber Ms K Bilgan Mr T Haywood

Date 20 July 2007

[1]APPEARANCES For the Appellant Mr Philip Coppel (of Counsel) Instructed by: The Treasury Solicitor One Kemble Street London WC2B 4TS For the Respondent Ms Joanna Heal (of Counsel) Instructed by: Radcliffes Le Brasseur 5 Great College Street London SW1P 3SJ SUMMARY Unfair Dismissal – Constructive dismissal Maternity Rights and Parental Leave – Sex discrimination The Claimant was employed as a Magistrates' Clerk and she brought successful claims to the Employment Tribunal that:(a) Ms Deborah Jane Slee ("the Claimant") had been constructively unfairly dismissed by The Department for Constitutional Affairs ("the Respondent");

(b) The Respondent had failed to offer to the Claimant a suitable and available vacancy following the redundancy of her existing post contrary to regulation 10 of the Maternity and Parental Leave etc Regulations 1999 ("the 1999 regulations");

(c) The Claimant suffered a detriment for the reason that she took ordinary maternity leave and additional maternity leave contrary to regulation 19 of the 1999 Regulations; and

(d) The Respondent had unlawfully discriminated against the Claimant on grounds of her sex. The Respondent appealed and the Employment Appeal Tribunal unanimously dismissed the appeal. It held that: 1. The Employment Tribunal was entitled to hold that the Respondent had committed a fundamental breach of the implied terms of mutual trust and confidence; 2. Regulation 10 of the 1999 Regulations applied as it was "not practicable by reason of redundancy to continue to employ [the Claimant] under her existing contract of employment". This was a redundancy situation as the word " redundancy" in this regulation had the same meaning as applied by the House of Lords in Murray v Foyle Meats

[1999] ICR 827

to the Northern Irish equivalent of section 139 of the Employment Rights Act 1996 namely that the contract test does not apply (see Re Jones Will Trusts

[1965] 1 Ch 1124

, 1131 and Floor v Davis

[1980] AC 695

,707); 3.The Claimant was entitled to make a claim under regulation 19 of the 1999 Regulations as she had " been subjected to a detriment" because she was pregnant as a result of the reasoning in Shamoon v Chief Constable of the RUC

[2003] ICR 337

; and 4. The Claimant was entitled to claim for sexual discrimination for the same reasons as are set out in paragraph 3 above. THE HONOURABLE MR JUSTICE SILBER I. Introduction By a decision dated 5 April 2006, an Employment Tribunal sitting in London held among other things that: (a) Ms Deborah Jane Slee ("the Claimant") had been constructively unfairly dismissed by The Department for Constitutional Affairs ("the Respondent"); (b) the Respondent had failed to offer to the Claimant a suitable and available vacancy following the redundancy of her existing post contrary to regulation 10 of the Maternity and Parental Leave etc Regulations 1999 ("the 1999 regulations"); (c) the Claimant suffered a detriment for the reason that she took ordinary maternity leave and additional maternity leave contrary to regulation 19 of the 1999 Regulations; (d) the Respondent unlawfully discriminated against the Claimant on grounds of her sex; and

(e) the Claimant's appeal under regulation 41 of the Justices of the Peace Act 1949 (Compensation) Regulations 1978 ("the Crombie scheme") failed and was dismissed.

[2]The Respondent (who is now The Secretary of State for Justice) appeals against decisions (a)-(d) of the Employment Tribunal. The Claimant has appealed to the High Court against decision (e) of the judgment and that appeal will be the subject of a separate hearing which has to be heard by a judge sitting alone.

[3]In essence, the appeal of the Respondent relates to the claims of unfair dismissal, redundancy under the 1999 Regulations and discrimination. II. Overview

[4]On 13 April 1982, the Claimant began work as a justices' clerk's assistant at Bournemouth Magistrates' Court. Having been admitted as a solicitor in 1992, the Claimant was appointed as a court clerk/legal adviser at Wimbledon Magistrates' Court in 1993. Although the proper name for that court may have become Merton Magistrates' Court, we will follow the lead of counsel and so we will also refer to it as Wimbledon Magistrates' Court.

[5]Prior to 1997 the administrative responsibility for maintaining an adequate and efficient service of magistrates' courts in outer London was vested in Magistrates' Court Committees. Each committee was responsible for appointing a Justices' Clerk; each court had its own clerk.

[6]The relevant statutory provisions were contained in the Justices of the Peace 1979 which was replaced by the Justices of the Peace Act 1997 and which itself was later amended by Part V of the Access to Justice Act 1999, which established a body corporate known as the "Greater London Magistrates' Court Authority" ("the GLMCA") which was the Magistrates' Court Committee for Greater London.

[7]By the Courts Act 2003, the GLMCA and similar committees were abolished and the responsibility for Magistrates' Courts including staff transfers was invested in Her Majesty's Court Service.

[8]These statutory changes in statutory provisions had consequences for the Claimant's employment because when she started her employment with Wimbledon Magistrates' Court, her employer was Merton Magistrates' Court Committee and the only court for which that committee was responsible was Wimbledon Magistrates' Court.

[9]With effect from 1 July 1994, the Claimant was promoted to training manager with Wimbledon Magistrates' Court and she continued with her role and duties as a legal/court clerk. She became one of five people in the "senior management team" at the court and she had substantial responsibilities. At her level, there was Mr Andrew Nicholson and Ms Carina Preece and above them was a Deputy Clerk Justices Mr A.J. Whitehead, whose superior was the Clerk to the Justices Mr Eric Packer.

[10]In 1996, the Merton Magistrates' Court Committee restructured the senior management team with Mr Whitehead vacating his position and his functions being shared between the Claimant, Mr Nicholson and Mrs Preece. The Claimant was appointed Director of Executive Services, Policy and Training, while Mr Nicholson was appointed Director of Legal Services. She was given delegated power so that in the absence of Mr Packer and of Mr Nicholson, she could act as the justices' clerk in all respects.

[11]From 2002, there was a restructuring of the magistrate's court authority with a reduction of the number of regional justices' clerks from 31 to 6. A new post of Branch Legal Manger ("BLM") was created to head up each individual magistrates' court clerk/ administration team and on 1 April 2001 the GLMCA assumed responsibility for Magistrates' Courts in Greater London, (including Wimbledon Magistrates' Court) and for all their staff.

[12]On 3 September 2001, the Claimant returned from maternity leave and she resumed working at Wimbledon Magistrates' Court. In August 2002 Mr Packer was suspended and he has never returned to work with his duties being divided up amongst Mr Nicholson, the Claimant and Mrs Preece. Mr Nicholson became acting justices' clerk with effect from 19 September 2002.

[13]By this time the GLMCA decided that in all magistrates' courts in Greater London the role of Justices' Clerks would be changed so instead of there being one Justices' Clerk for each Magistrates' Court there would be:(a) six "regional Justices' Clerks" to cover all of Greater London;

(b) one Bench legal Manager ("BLM") for each Magistrates Court; and

[14]Under this scheme, the BLM was to be responsible for running the legal services of the court such as providing legal advice to the Bench, maintaining the court registers and delivering training for justices. The BOM was to manage the administrative running of the court.

[15]The organisation of Wimbledon Magistrates' Court did not equate to this structure and there were two applicants for the BLM post at Wimbledon Magistrates' Court, who were the Claimant and Mr Nicholson, who was asked to, and did, become acting justices' clerk from 19 September 2002.

[16]In September 2002, Ms Campbell, the Director of Human Resources and Corporate Development of the Claimant's employer wrote to her and other deputies explaining the new structure and telling them that they need to complete redeployment forms. On 31 October 2002, a human resources development manager for the claimants' employers wrote to her telling her that all BLM posts would be ring-fenced to the existing deputies.

[17]On 11 April 2003, the Claimant was notified it would be necessary to interview her in respect of the BLM appointment at Wimbledon Magistrates' Court and a job description and a personal statement were enclosed in the letter as was a redeployment form for her to fill out. The Claimant had, however, through her union representative indicated that she was keen to pursue a voluntary redundancy option on Crombie terms that she believed she had been given. The Employment Tribunal found first that no response was received to this, second that the voluntary redundancy was left in the air and third that the Claimant was not told until about October 2003 that voluntary redundancy was not on offer for her.

[18]The Claimant subsequently completed the redeployment form on the last day for doing so, which was 23 May 2003. The Employment Tribunal found that she did not fill it in properly or adequately as she left large areas on her form where no information was given but where she simply referred to her application form which she had put in 10 years previously without giving any sufficient updated information about her work and her role.

[19]On the other hand, Mr Nicholson filled out a form correctly and fully. The Tribunal said that the Claimant believed that Mr Nicholson was going to be appointed anyway and she had been side-lined by magistrates since Mr Nicholson had been acting as justices' clerk since Mr Packer's departure.

[20]The Employment Tribunal noted the contrast between the very strong and positive references given by Mrs Powell the Magistrates Bench Chairman for Mr Nicholson and the rather less enthusiastic reference for the Claimant. Both Mr Nicholson and the Claimant received letters inviting them for an interview but the Claimant, who was off sick, did not receive her letter possibly because it was lost somewhere on her desk at Wimbledon. Mr Nicholson was interviewed and he was appointed to the post. The Employment Tribunal concluded that the Claimant "appears to have agreed that there should not be further delay and that Mr Nicholson should be appointed, as she was off sick and she did not want to contribute to the delay" (paragraph 4 and 5 of the Reasons).

[21]The Claimant's redeployment application form and another letter showed that the only post in which the Claimant was interested was the post at Wimbledon.

[22]The Claimant then remained off sick with stress-related illness until she started her maternity leave. The Respondent was not aware of the Claimant's pregnancy until October 2003 by which time she had been referred to Occupational Health, who on 17 September 2003 had concluded that she was unfit for work. The Occupational Health doctor appeared to support the Claimant's continuing efforts to obtain voluntary redundancy but the Human Relations Officer took the view that the doctor was exceeding his brief and that he had not carried out the stress assessment of the Claimant which he had been asked to complete. No other medical referral has taken place.

[23]On 24 October 2003, Mrs Kirstie Greenunp of GLMCA Human Resources wrote to the Claimant stating that it was her understanding the voluntary redundancy had never been offered and she was unclear why it would be as they had suitable vacancies for someone of the Claimant's competence and skills. The letter made it clear that the Respondent believed that the Claimant had a wealth of knowledge and experience which the Respondent did not wish to lose.

[24]It is appropriate to point out that new terms and conditions of employment for the Magistrates Court staff had been collectively agreed with the relevant unions including the Claimant's union, which was PROSPECT. These terms included a mobility clause and the Claimant had been duly informed about this. We will have to return to explain how the mobility clause operated.

[25]Thus the position as at late October 2003 was that voluntary redundancy was an option, which was not then available to the Claimant, as far as the Respondent was concerned. The Claimant was told that the options in redeployment could extend to remaining in a senior legal position in Wimbledon, moving to another court in the region or to another region and could include consideration for the next BLM vacancy that arose. In making these suggestions, the Respondent was clearly relying on the mobility clause and the Claimant did not contend that she could only be employed at Wimbledon.

[26]On 13 February 2004, Mrs Greenup wrote to the Claimant saying that in the first instance her employers wished to consider her for the BLM position at Bexley although they would require her to attend an assessment interview in accordance with the reorganisation protocol but she would be the only person offered that assessment. In addition, there would be a number of other legal adviser posts in a number of locations where she could work.

[27]A meeting took place on the 19 March 2004 at which the Employment Tribunal found that the Claimant refused the Bexley post because of the difficulties of travelling to Bexley from her home in Bournemouth. Indeed no further progress on the Bexley post was ever made but it had not been an unconditional offer. If there was such a requirement for an assessment, then that requirement in the views of the Employment Tribunal: "would have been a breach of the Respondent's own assimilation policy under its organisational protocol" (paragraph 4.6 of the reasons).

[28]Although there were no other candidates for the job, a letter was sent by Mr Leighton, the General Secretary of the Claimant's union, to the Respondent on the 9 May 2004 confirming that the Bexley post was not acceptable because of the travel and because the Claimant would not regard the offer of a legal advisor post as being a suitable alternative for a deputy justice's clerk position as the major loss of salary and status would have been an unacceptable backward step in the Claimant's career even though the Claimant's salary was protected at its current level.

[29]The Claimant gave birth to her child at the end of March 2004 and the next significant contact occurred in January 2005, which was before the Claimant's maternity leave was due to end on 28 February 2005 although with annual leave it would appear that her return date was agreed as being 7 April 2005.

[30]On 20 January 2005, Mrs Jean Krywko, the interim head of personnel services of the Claimant's employers, wrote to the Claimant asking her to make contact so that they could proceed with identifying an appropriate position for the Claimant. On 3 February 2005, the Claimant responded explaining that the fundamental issues as she saw them which were the termination of her post at Wimbledon Magistrates' Court when she was on sickness and/or on maternity leave, the recruitment of the BLM at Wimbledon and her requirement for a response to an e-mail sent by her on 16 June 2004 enquiring as to when her directorship post at Wimbledon had been abolished. We will return to consider the significance of this request and the reaction of the Respondent to it.

[31]On 22 February 2005, Mr Alan Greaves the Human Resources project manager wrote to the Claimant and asked her to report to the regional office of the South West region in Wimbledon on her return on the 7 April. Mr Greaves went through some of the history of what had occurred and he explained that the requirement to consider the Claimant for the BLM role was generated by the Respondent's decision to alter the management structure in the courts; this meant that the Claimant's own position was potentially subject to deletion. Mr Greaves wrote to the Claimant stating that: "your former role was subsequently removed from the establishment of the court as a result of the reorganisation subject to the appointment to the bench post".

[32]Mr Greaves' evidence was that the Respondent wished to find for the Claimant appropriate employment commensurate with her former role and that her employment position had not been jeopardised by her absence either on sick leave or on maternity leave. He said that the Claimant's suitability for her role of BLM would be assessed on her return as it would have been before she went off sick explaining that the Respondent had BLM posts vacant in the South West of London region and elsewhere with the Claimant being given priority for appointment to these roles if they were suitable for her but if the Claimant was unable to take such a role, the Respondent would discuss other alternatives based on her capabilities and other factors.

[33]In his letter, Mr Greaves explained that as the Claimant had been absent from work for some time, there was a likely requirement that the Respondent would have to make arrangements for her to be assessed for any development or training she may need to enable her to "re-assimilate" but this would be discussed with the Claimant on her return to work. Any such exercise would, he said, take place in conjunction with the assessment of her suitability or development needs in connection with her appointment to a bench management role.

[34]In the light of the imminent return to work of the Claimant, Mr Danny Sullivan, who was then Area Director for the South West of London area of the Court Service, asked Mr Julian Vantyghem the Regional Justices' Clerk for the South West London of HMCS to prepare a paper setting out the redeployment options for the Claimant. This option paper showed that there was a vacancy on the West London Magistrates' Court legal team and that that court was the busiest in the region as well as being in Mr Vantyghem's opinion the centre of innovation and excellence. It was apparently developing a new specialist court and was undertaking a number of high level projects.

[35]It appears that the existing BLM had felt there was a lack of support for her position but Mr Vantyghem considered that the West London post offered the best match for the Claimant's skills to the operational needs within the South West region and it would enable her to take on a number of management roles. It was thought that this option would be short term for about 3 to 4 months so as to enable the Claimant to re-integrate into a system where there had been many structural changes and important legislative changes. The Employment Tribunal accepted the evidence of Mr Vantyghen that he would not wish to delegate his powers of regional justices' clerk unless he was certain of the suitability of that person to whom he was delegating them as it was a personal delegation which had to be done responsibly. He considered that the position in West London suited this requirement because he could assess the Claimant with a view to delegating powers to her in the future.

[36]Mr Michael Heep, the former Chief Executive of GLMCA, said in evidence accepted by the Employment Tribunal that if the Claimant had assisted the BLM at the West London Magistrates' Court, it would have been of significant and positive contribution with the result that she would thereafter have been very well equipped for anything else because, as we have explained, the West London Court had a much higher profile with a greater volume of work and more serious cases than was the position at Wimbledon.

[37]The case for the Respondent was that there were difficulties in offering the Claimant the vacant BLM job at Richmond as potential re-deployees from the Central London Region of Westminster, who were existing BLMs, might have a claim on such posts and additionally if the Claimant was put into that post, it would then be necessary to move legal advisors elsewhere.

[38]On 22 March 2005, Mr Sullivan wrote to the Claimant instructing her to report to West London Magistrates' Court on 7 April where she would be introduced to Mr Vantyghem and to the BLM there. Mr Sullivan in his letter said that:(a) the Claimant would be line managed by the BLM with Mr Vantyghen monitoring the situation;

(b) the Claimant would be there for twelve weeks in the first instance providing additional management support to the BLM and that involved specifically project work with the drug pilot court;

(c) during the first two weeks, an assessment would be made in relation to any training or development needs of the Claimant and the program set out accordingly;

(d) six weeks into her role there, the Claimant would be interviewed and assessed as to her suitability for the BLM post and if successful the Respondent would need to consider what vacancies were available in London and across the country;

(e) at the time of writing this letter there were no available BLM posts in the South West of London area; and

(f) if the Claimant was unsuitable for the BLM role the Respondent would through protocol identify suitable and alternative employment based on a former role at Merton Wimbledon.

[39]The Employment Tribunal found that Mr Sullivan's preference was for the Claimant to fulfil the West London role over any assessment for the Richmond Post even though that post was vacant and the Westminster re-deployment position had not then yet arisen.

[40]The Employment Tribunal noted that if Mr Sullivan had wanted, he could in accordance with the Respondent's own re-deployment reorganisational procedures have put the Claimant into the Richmond post. Paragraph 8.3.1 of the reorganisational protocol provides for trial periods of four weeks where employee's are offered and accept suitable alternative work under a new or revised contract. During this four-week period, the employee's performance would be monitored and weekly meetings held to discuss progress.

[41]It is appropriate to point out that the Claimant's solicitors wrote to the Respondent on 29 March 2005 complaining the West London post was not suitable alternative employment and that it represented a clear demotion but the Employment Tribunal did not find that to be the case. The evidence of Mr Vantyghem and Mr Sullivan was that the post was regarded highly and that acceptance of it would have put the Claimant in a good position for the future. It is noteworthy that although the posting was only short term, the employment of the Claimant was not temporary because she would thereafter have been moved into a post that was either a BLM post or one that was commensurate with her former role at Wimbledon as Mr Sullivan had told her.

[42]The Employment Tribunal found that: "the position was not properly explained to the Claimant and so far as any re-deployment or reorganisational policy is concerned, and indeed so far as the mobility clause in her contract was concerned, the Respondent did not handle the situation properly or fairly" (paragraph 4.9 of the Reasons).

[43]Mr Sullivan replied to the letter from the Claimant's solicitors on 1 April 2005 restating the Respondent's position and stating the removal of the Claimant's former post from the establishment had taken place on 1 June 2003.

[44]When the Claimant received this letter, she wrote on 6 April 2005 to Mr Sullivan tendering her resignation and setting out the alleged breaches of contract. This resignation was said to take effect immediately with the result that the Claimant would not return to work the following day. On the same day the Claimant sent a form of grievance to Mr Sullivan and she made claims for compensation under the Crombie Scheme on 21 March 2005 and through her solicitors for short-term compensation, for long-term compensation and for retirement compensation in a letter of 19 April 2005.

[45]On 29 April 2005, Mr Sullivan responded rejecting the Crombie Scheme claim and saying that the Respondent was not making her redundant and that they had every confidence that they would find suitable employment for her. The Employment Tribunal pointed out that in this matter Mr Sullivan said for the first time that if the Claimant wished to be assessed for an interview from the outset without the opportunity of shadowing the BLM at West London, he would be happy to arrange it.

[46]So far as the grievance was concerned Mr Sullivan wrote to the Claimant on 11 May 2005 saying that Mr Kevin Griffiths, Regional Justices' Clerk in the South East Area (Bromley), would undertake the investigation and a meeting was arranged for 19 May 2005.

[47]On 13 May 2005, the Claimant sent an e-mail to Mr Griffiths asking what would be on the agenda for the meeting and asking if it could be moved from 3.30pm on that date to 4pm. Miss Angela Newman a human resources advice and guidance team leader responded on 18 May 2005 saying she did not think it appropriate to continue with the Claimant's grievances because Mr Griffiths would be unable to make a decision in respect of issues until they had been pursued further by human resources.

[48]Another meeting was fixed by Mr Griffiths for 4 August 2005 but the Claimant's solicitors responded by seeking to know why the grievance procedure was being reinstated. It appears that the parties later agreed that modified grievances should apply but that the Claimant still considered the grievance procedure was not followed properly by the Respondent. After a letter from the Claimant's solicitors, Mr Griffiths was asked to continue to deal with the grievance although it would appear that the matter was not pursued further by Mr Griffiths.

[49]Mr Lowe of the Respondent did not chase Mr Griffiths up to see how things were progressing and it was not until January 2006 that Mr Low became aware that the grievance had not been progressed. Mr Lowe contacted Mr Griffiths and asked him to deal with the grievance as a matter of urgency and at the time of the Employment Tribunal's hearing in March 2006, he was still dealing with it.

[50]The issues raised on this appeal are whether the Employment Tribunal erred in holding that:a. A. the Respondent had unfairly constructively dismissed the Claimant;

b. B. the Respondent had failed to offer to the Claimant a suitable and available vacancy following the redundancy of her existing post contrary to regulation 10 of the 1999 Regulations 1999.

c. C. the Claimant suffered a detriment for the reason that she took ordinary maternity leave and additional maternity leave contrary to regulation 19 of the 1999 Regulations; and that

d. D. the Respondent unlawfully discriminated against the Claimant on grounds of her sex;

[51]We ought to say that the Employment Tribunal did not in our view award any additional sum for the regulation 10 claim raised in issue B and so issue B is an academic issue if the Claimant succeeds on the constructive dismissal claim raised in Issue A. Further it is common ground that claims C and D stand or fall together. III. Issue A. The claim for unfair constructive dismissal.

[52]The Employment Tribunal concluded that " the Claimant had made out a breach and a fundamental breach of the implied terms of mutual trust and confidence ". Their reasons were (with the lettering in square brackets inserted by us for ease of reference) that: "15.4. We further conclude that the Claimant has made out a breach and therefore a fundamental breach of the implied term of mutual trust and confidence. Looking back over the period from about May 2003, there are a number of incidents which added together contribute to the undermining of that relationship.[A] The failure to ensure that the Claimant was properly invited to interview, and when she did not attend a check should have been made to find out where she was. Her perception that she was ignored and side-lined is heightened by this behaviour of the Respondent.[B] At the end of the maternity leave in February 2005, Mr Greaves failed to answer the question of when the Claimant's post had been deleted and he told the Claimant to report to Wimbledon without giving an indication of the job that she would be doing.[C] She was then instructed by Mr Sullivan to report to West London Magistrates' Court, a proposal that was not discussed still less agreed with the Claimant [D]. She was simply told what to do, and was not asked about her domestic circumstances or whether she thought the location was suitable. The Respondent had discussed the Bexley post with Mrs Slee before her maternity leave, and there was no reason why they could not have discussed the west London post as well. The Respondent failed entirely to go through the mobility procedure, as set out in our findings of fact. Before she went on maternity leave, a paper assessment was to be made following her completion of the re-deployment form and interview. We believe that the Claimant should have been asked to re-complete the re-deployment form and then a paper assessment could have been made. Training needs and other developmental needs to cover period of time that the Claimant had been absent from work could have been identified at the point of going into post or while she was in post, in accordance with the mobility procedure".

[53]Before dealing with the criticisms of the individual items, we must deal with four preliminary matters. First, we agree with Mr. Coppel that the approach of the Employment Tribunal to a claim for constructive dismissal must be as was summarised by Dyson LJ in London Borough of Waltham Forest v Omilaju

[2004] EWCA Civ 1493

at paragraph 14 that:

"3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract see, for example, per Browne-Wilkinson J in Woods v WM Cars Services (Peterborough) Ltd [1981] ICR 666, 672A. The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship. 4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik v Bank of Credit and Commerce International SA [1998] AC 20 at page 35 C, the conduct relied on as constituting the breach must "impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer"

(emphasis added in original)

[54]Second, the approach of the Employment Appeal Tribunal to appeals such as the present one against findings of constructive dismissal must be that: "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: see Pedersen v Camden London Borough Claimants (Note) [1981] 1 CR 674 and Woods v W.M.Car Services (Peterborough) Ltd .

[1982] ICR 693

both in the Court of Appeal 170, applying the test laid down in Edwards v Bairstow

[1956] AC 14

" (per Glidewell LJ in Lewis v Motorworld Garages Limited

[1982] ICR 157

, 169)

[55]Third, we do not accept the criticism made by the Respondent that where course of conduct is relied upon by constructive dismissal, that course of conduct has to be a continuous course of conduct. It was pointed out by Glidewell LJ in Lewis v Motorworld Garages Limited

[1982] ICR 157

, 169 that: "(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 terms? (see Woods v W.M. Car Services (Peterborough) Ltd .

[1981] ICR 666

). This is the "last straw" situation".

[56]Fourth, Mr. Coppel attaches importance to the fact that there was a long gap between item A which occurred in May 2003 and item B which took place in February 2005 but this has to be seen in the light of the fact that the Claimant was on sick leave from 2 June 2003 until 29 February 2004 when she started her maternity form which she never returned to work .So there was not a period when the Claimant was working without complaint for the Respondent between the complaints specified in item A and in item B as the Claimant was not working between those periods.

[57]Mr. Coppel complains that the Employment Tribunal did not approach the complaints of the Claimant objectively and we will consider the reasoning in this light of this criticism. As to item A, he says that the Respondent cannot be criticised for sending the details of the proposed interview to the Claimant at work as she was not then on sick leave. It is noteworthy that when a litigant does not arrive at court at the appointed time for a hearing, the court authorities will usually make inquiries to ascertain where the litigant is; we can understand why the Employment Tribunal attached some importance to the failure of the Respondent to carry out such a check and then proceeded to infer on an objective basis that the Claimant would feel "ignored and sidelined ". In reaching that conclusion, we bear in mind that the Employment Tribunal is a body with specialist knowledge of employment matters.

[58]Moving to item B (the failure of Mr. Greaves to answer the question when the Claimant's post at Wimbledon had been deleted and also his instruction to the Claimant to report to Wimbledon without giving the Claimant an indication of the job she would be doing), it is necessary to bear in mind that an employee in the Claimant's position, who had been away on sick leave and maternity leave for more than 18 months would on any objective basis have been very concerned about why her previous job had been abolished and what was to become of her when she returned to work. My colleagues on the Employment Appeal Tribunal, who each have substantial experience of personnel matters, felt that the Respondent ought to have been ready and willing to answer the queries of the Claimant about when her last position ceased to exist and so it ought to have gone to lengths to explain to her what was going to happen to her on her return to work. I agree with that approach.

[59]The Claimant would in our view have had a genuine and a proper interest in knowing when her previous post had been abolished. Mr. Coppel contends that Mr. Greaves in his letter of 22 February 2005 does answer the bulk of the points raised in the claimants' letter of 3 February 2005 but the stark fact is that the Claimant was not then told of the date when her post in Wimbledon had been deleted .In her letter of 3 February 2005, the Claimant pointed out that she was still awaiting a response to her e-mail of 16 June 2004 inquiring as to when her Directorship, which she had held since 1 July 1996, had been abolished. The Claimant did not receive this answer until 1 April 2005. This failure was unfortunate and the Employment Tribunal was entitled to conclude that it was a factor undermining the trust and confidence between the Claimant and the Respondent.

[60]By the same token, we regard it as important that the Claimant should have known what post she would be required to perform on her return and where she would be required to work. She was merely told to report to Wimbledon Magistrates' Court without any indication of what she would be doing and where she would be working although she was told in that letter of instruction that: "Your former role was subsequently removed from the establishment of the court as a result of the reorganisation subsequent to the appointment to the bench post".

[61]In our view, the Employment Tribunal as an industrial jury was quite entitled to regard item B as undermining the obligation for the Respondent in respect of mutual trust and confidence. We stress that the lay members of the Employment Appeal Tribunal hearing this case consider that their experience of personnel matters satisfies them that this conclusion is justified and I agree.

[62]Items C and D overlap as the former deals with the instruction of Mr. Sullivan contained in his letter of 22 March 2005 requiring the Claimant to go to West London Magistrates' Court without any prior discussion or agreement for the purpose which we have explained in paragraph 38 above while item D deals with the failure to comply with the mobility procedure. As we have explained, the Mobility Procedure was introduced in 2003 and its terms are significant because it did limit the power of the Respondent to transfer anybody to any place it might have wished. Even if the Reorganisational Protocol was concerned with permanent placements, this allocation of the Claimant was not for a short fixed temporary period but for " 12 weeks in the first instance " and the Employment Tribunal, as an industrial jury, was quite entitled to regard the Protocol as applying to it or at least to attach very substantial significance to it.

[63]The material parts of it state that:

"1.2 …In practice, it is accepted that such changes in work location will need to be considered with sensitivity and any changes to the agreed work location will be subject to: (a) The proposal being discussed and agreed, wherever possible, with the employee: (b) The employee's domestic circumstances being taken into account; (c) Consideration of the suitability to the employee of the proposed alternative work location; (d) Consideration of the suitability to the GLMCA of the alternative work location"

[64]Regrettably the Respondent failed to comply with it as it merely gave an instruction. In particular the Respondent did not ensure that(a) the proposal was " discussed with the employee ";

(b) the proposal was " agreed with the employee";

(d) the changes were " considered with sensitivity ". In fact the Respondent acted as if the mobility procedure gave them an unfettered right (or an almost unfettered right) to move the Claimant to whatever place it wished without any regard for the Mobility Procedure. The Employment Tribunal was quite entitled to regard this as a fundamental breach of the duty of trust and confidence especially bearing in mind the Claimant's long employment with it and its predecessors as well as her previous health problems.

[65]Standing back and looking at all these matters, we are quite convinced that the Employment Tribunal was entitled to conclude as it did that the Respondent committed a fundamental breach of the duty of trust and confidence for the reasons which they gave. In our view it would be quite wrong to disturb the findings of the Employment Tribunal especially as it is settled law , as we have explained in paragraph 54 above that in the words of Glidewell LJ in Lewis' case (supra) that in respect of a finding of constructive dismissal:

"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"

[66]In this case the submissions of the Respondent fall a long way short of establishing a case for disturbing the finding of constructive dismissal. Thus the appeal against the finding of constructive dismissal has to be dismissed. We ought to add that if, which is not the case, we had been in any doubt about this conclusion, we would have gone on to consider if the real challenge of the Respondent was a perversity challenge or a challenge to conclusions of fact. Our provisional view is that it was both as Mr. Coppel's submission that the Employment Tribunal did not approach the matter objectively is another way of saying that the findings were perverse. This would constitute a further reason for dismissing the appeal as the Respondent' case falls a long way short of the test of Mummery LJ in Yeboah v Crofton

[2002] IRLR 634

that such a claim can only succeed where:

"93...an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law, would have reached"

IV. Issue B. The Regulation 10 Claim.

[67]As we have explained in paragraph 51 above, the Employment Tribunal did not in our view award any additional sum for the regulation 10 claim raised in issue B and so issue B is an academic issue if, as we have held to be the case, the Claimant succeeds on the constructive dismissal claim raised in Issue A. Regulation 10 of the 1999 Regulations has the heading "Redundancy during maternity leave " and it states (with our emphasis added) that: "(1) This regulation applies where, during an employee's ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment…".

[68]It is common ground that the critical issue between the parties is whether it can be established that at the relevant time in early 2005 that:

"it is not practicable by reason of redundancy for [the Respondent] to continuously employ the [Claimant] under her existing contract of employment" and that entails consideration of whether the Claimant was "redundant"

[69]In paragraph 15.3 of its Reasons, the Employment Tribunal stated that:

"The Claimant's maternity leave began on 29 February 2004 and ended on 28 February 2005, although it was extended by annual leave to 7 April 2005. Her redundancy arose, as we have found, in June/July 2003. Regulation 10(1) of the Maternity and Parental Leave etc. Regulations 1999 applies to her case, because although the redundancy arose before the maternity leave was begun, it continued unresolved during the Claimant's maternity leave and was still unresolved at the end of it, in that the Claimant had not been offered and accepted a new post. The Richmond BLM post became vacant in June 2004, and in accordance with regulation 10(2) the Claimant was entitled to be offered it. It is the case and the Claimant would have agreed that the offer of such a post was work which was both suitable and appropriate for her, etc under regulation 10(3). As we understand the position, the Respondent was obliged to give the Claimant preference over other employees by reason of regulation 10. There was therefore a breach of that regulation"

[70]Ms Heal contends that the Claimant was redundant while Mr Coppel disagrees. He contends that the Employment Tribunal should have appreciated that the mobility clause enabled the Claimant's employers to move her away from Wimbledon with the result that she was not redundant as she could be required to work in other areas. So it is said that this is not a case where it was " not practicable by reason of redundancy… to continue to employ her under her existing contract of employment ".

[71]The response of Ms Heal is that the House of Lords decided in Murray v Foyle Meats

[1999] ICR 827

that under the Northern Irish equivalent of section 139 of the Employment Rights Act 1996 , it is not relevant to apply a contract test to determine if an employee was redundant. She points out that in that case it was held that the first question to ask is whether the requirements of the business for employees to carry out work of a particular kind have diminished. The second question is to ask whether the dismissal is attributable wholly or mainly to that state of affairs.

[72]So Ms Heal says, applying that test, it was not an error of law for the Employment Tribunal to conclude first that the Claimant was employed at Wimbledon (paragraphs 4.1 and 15.2 of their reasons); second that the requirements of the business for employers to carry out the work of a particular kind-namely as a Deputy Justice in Wimbledon had ceased or diminished as the Claimant's post had been removed with the Claimant and Mr Nicholson having to compete for one post. The dismissal of the Claimant was according to Ms. Heal attributable wholly or mainly to that state of affairs.

[73]Mr Coppel takes issue with whether the Claimant was " redundant" and more particularly he contends that the mobility clause meant it was practicable to employ the Claimant other than in Wimbledon under her contract of employment. He recognises correctly in our view that this submission entails showing that the definition of redundancy in Murray's case (supra) does not apply to the definition of redundancy in regulation 10, even though the 1999 Regulations were made pursuant to section 236(3) of the Employment Rights Act 1996 , which contains the equivalent of the provision considered by the House of Lords in Murray's case.

[74]Section 11 of the Interpretation Act 1978 provides that: "Where an Act confers power to make subordinate legislation, expressions used in the legislation have, unless the contrary intention applies, the meaning which they bear in the Act" 75. In order to show that the word "redundancy " has a different meaning in the 1999 Regulations from what it has in the main Act, Mr. Coppel contends that he can show that such a " contrary intention " was apparent in regulation 10 of the 1999 regulations. In Re Jones' Will Trusts

[1965] 1 Ch. 1124

, Buckley J said that the words "unless the contrary intention applies " mean " unless the contrary appears from any surrounding circumstances which carry conviction to the mind of the court " (page 1131). He also agreed with the submission " that the evidence indicating a contrary intention must be strong " (ibid with emphasis added).

[76]In Floor v Davis

[1980] AC 695

, 707, Viscount Dilhorne said if a construction of a provision was " unworkable, or if not workable [leads] to a result that Parliament could not have intended, then it can be concluded that an intention contrary to the application of the Interpretation Act appears ". Nothing was said in the other case to which we were referred which was R (on the application of OD) v Bristol Magistrates' Court

[2004] 2 All ER 555

, which casts doubt on this approach.

[77]Mr Coppel contends that the different nature of the remedies contained in regulation 19 as compared with the redundancy pay legislation as well as other factors show a " contrary intention " so that the approach in Murray (supra) should not be applied to regulation 10. We are unable to agree as we cannot discern any intention (let alone evidence of such an intention which in Buckley J's words was " strong" ) to show that redundancy should have a different meaning in regulation 10 from that in the main statute. Furthermore, regulation 10 is perfectly workable and leads to sensible results if it has the meaning explained in Murray's case.

[78]Thus we accept Ms Heal's submissions and reject the challenge to the Employment Tribunal's decision on the regulation 10 point but we repeat that we do not understand how success on this claim could assist the Respondent as no further sum was awarded to the Claimant under this head over and above what had had been ordered for her constructive dismissal claim V. Regulation 19 of the 1999 Regulations.

[79]Regulation 19(1), insofar as is material to the present appeal, provided (with our emphasis added) that: "An employee is entitled to… not to be subjected to any detriment by any act, or any deliberate failure to act by her employer done for any of the reasons specified in paragraph (2)".

[80]The factors specified in paragraph (2) of regulation 19 as the "reasons" in paragraph (1) include that the employee " is pregnant" or that she "took, sought to take or availed herself of the benefits of, ordinary maternity leave".

[81]The Employment Tribunal found that the Claimant had suffered a detriment within the meaning of Regulation 19 of the 1999 Regulations "…in that she reasonably considered that assessment by way of shadowing a BLM for twelve weeks was a detriment and the whole assessment process proposed at West London was not within the re-organisational policy and represented something of a loss of status for her, albeit only a temporary one". (Paragraph 15.6 of the Reasons)

[82]Mr. Coppel's first submission is that the Employment Tribunal wrongfully equated an act done because of an absence from post for a prolonged time (which, in this case, was a consequence of the combination of an extended sick leave and maternity leave of the Claimant) with an act done because an absence of post because of maternity leave. He points out that the Employment Tribunal recorded that the Claimant had been out of an organisation " during 2 years of organisational and legal change " (paragraph 4.8 of the reasons) and that the Respondent's evidence shows it was that and that alone which was responsible for the wish of the Respondent to re-equip the Claimant with the necessary training, which would be needed to carry out her role; that role was to be in charge of the provision of legal advice to the bench and delivering of training to the Justices.

[83]We are unable to accept this submission because the reasoning of the Employment Tribunal was not that the Respondent subjected the Claimant to a " detriment" because she had been off work for a prolonged time but because she had been on maternity leave. This reason is clearly stated in the last line of paragraph 15.6 of the Reasons in which the Employment Tribunal explained (with our emphasis added) that: "the nature of the assessment post of West London was very different from the anticipated Bexley assessment before the Claimant went on maternity leave ".

[84]It is noteworthy that the offer of the assessment for the Bexley position took place immediately before the Claimant commenced maternity leave while the instruction to report to West London for twelve weeks' shadowing assessment took place at the end of the maternity leave. The difference in the assessments was, as we have explained, for the Bexley position that the Claimant was required to fill a re-deployment form, to attend an interview before being subject to a paper assessment but she was the only person offered that assessment in February 2004 and this was just before she went on maternity leave. In contrast at the end of the Claimant's maternity leave, for the West London position, the Claimant was to be subjected to first a probationary period for twelve weeks, second after six weeks an interview and third an assessment for her suitability for a BLM post.

[85]There were fundamental differences between the pre maternity leave offer and the post-maternity leave offer as first in the later post-maternity leave offer, the Claimant was to be managed by a BLM for at least 12 weeks while in the pre-maternity leave offer she was not to be so managed and so it was a form of demotion. A second difference was that in the post-maternity leave offer, the Claimant was subject to an assessment for her suitability depending on her performance while in the pre-maternity leave offer; she was to be subject to a paper assessment. A third difference was that in the post-maternity leave offer, the assessment for the Claimant's suitability as a BLM was to be postponed for six weeks while in the pre-maternity leave offer, the assessment was to take place very speedily. No cogent acceptable reasons have been put forward to explain these differences between the treatment accorded to the Claimant before her maternity leave and after it. We have no doubt that the Employment Tribunal was entitled to conclude that the causative factor for the different treatment of the Claimant in 2005 was the fact that she had been on ordinary maternity leave.

[86]The second point made by Mr Coppel is that the characterisation of the post-maternity leave offer as a " detriment " (which is the critical word in regulation 19 (1) of the 1999 Regulations) was " perverse ". It is said the Employment Tribunal had earlier in paragraph 4.8 of the Reasons the twelve week period during which the Claimant would be providing additional management support to the BLM at West London as a "significant and positive contribution, and she would have emerged from the process very well equipped for anything else".

[87]The approach of the Employment Tribunal was, as we have explained that the Claimant's reasonable belief that the nature of the assessment by way of shadowing twelve weeks was a " detriment " and that the whole process of shadowing a BLM for 12 weeks and the whole assessment process was a loss of status for her. It is common ground that the meaning of the word " detriment" is to be found in the speeches of members of the Appellate Committee of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

in which it was said by: (a) Lord Hope of Craighead " one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to 'detriment'" (paragraph 35). Lord Hutton agreed with this approach (paragraph 91); and by (b ) Lord Scott of Foscote that Lord Hope's test " must be applied by considering the issue and the point of view of the victim " (paragraph 105).

[88]In our view, the Employment Tribunal correctly considered the test from the Claimant's point of view which enabled them to conclude that she had established a detriment in accordance with approach set out in Shamoon . Sense. In her evidence before the Employment Tribunal, the Claimant explained that she had been " told to cover another court under a demotion. How could they assess me when I was not in the job? " and she could not see why she could not have a paper assessment, which was what was proposed before her maternity leave for the Bexley position. This evidence states in a different way the essence of the matters which we have summarised in paragraph 85 above

[89]The Employment Tribunal as the industrial jury was in our view quite entitled to conclude as it did in paragraph 15.6 of the Reasons that the Claimant: "…reasonably considered that assessment by way of shadowing a BLM for twelve weeks was a detriment and the whole assessment process proposed at West London was not within the re-organisational policy and represented something of a loss of status for her, albeit only a temporary one".

[90]In reaching that conclusion, we unhesitatingly reject the submission of Mr Coppel that this finding of the Employment Tribunal was perverse for which the threshold is, as we have already explained, very high in the light of the test of Mummery LJ in Yeboah v Crofton

[2002] IRLR 634

that such a claim can only succeed where:

"93...an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law, would have reached"

[91]In this case the Respondent's case does falls a long way short of that threshold and so the appeal on this ground has also to be rejected. VI. The Sex Discrimination Act Issue

[92]It is common ground that the outcome of the appeal on this issue should be the same as would be reached on the regulation 19 issue because the arguments of both sides are similar. It follows that the Respondent's appeal on the sex discrimination issue has to fail.

[93]The reasoning of the Employment Tribunal on the sex discrimination claim was (with some case citations removed) that: "15.7. We also conclude that the Claimant has made out her claim of direct sex discrimination, based as it is on her pregnancy/maternity leave position. …The Respondent failed to offer her the Richmond post and she was not offered a BLM post or the opportunity to apply for one on her return to work, as she had been with Bexley before her maternity leave. Further, she was required to undergo additional assessment in the West London context and, as with regulation 19, on a comparison with the situation before and after maternity, she can establish Shamoon detriment".

[94]In our view in the light of the interpretation of the word " detriment" in the speeches in Shamoon to which we referred in paragraph 87 above, the Employment Tribunal was quite entitled to reach the conclusion which it did on this issue. In those circumstances, the appeal against the finding of sexual discrimination has to be rejected. VII. Conclusions

[95]In spite of the careful and sustained submissions of Mr. Coppel, the appeal must be dismissed. The Employment Tribunal was quite entitled to reach the conclusions, which it did, as it applied the law fairly to the facts as it found them to be. Many of the submissions of the Respondent were either express allegations of perversity or alternatively disagreements with factual conclusions to which the Employment Tribunal was entitled to come; such contentions have had to be dismissed for the reasons which we have given. Indeed when we rejected the appeals on the constructive dismissal issue and the regulation 19 issue, it followed that the appeal would have to be dismissed under the other heads.