THORNTON PRINT LTD v MR R MORTON [2008] UKEAT 0090_08_0809

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0090_08_0809Case No Appeal No. UKEAT/0090/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THORNTON PRINT LTDAPPELLANTMR R MORTONRESPONDENT
Before
His Honour Judge SerotaDate 8 September 2008
[1]APPEARANCES For the Appellant MR MARK SUTTON (of Counsel) Instructed by: Messrs Ward Hadaway Solicitors Sandgate House 102 Quayside Newcastle upon Tyne NE1 3DX For the Respondent MR SEAMUS SWEENEY (of Counsel) Instructed by: Messrs Stockdale & Reid Ltd Solicitors 52 Howard Street North Shields NE30 1AP SUMMARY UNFAIR DISMISSAL: Constructive dismissal STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES: Whether infringed The Respondent committed a repudiatory breach of the Claimant's contract of employment. The Claimant elected to wait until receipt of a letter the Respondent promised to send and provided a written grievance in accordance with s32 of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004 . The grievance referred to the matters giving rise to the repudiatory breach. The promised letter amounted to a further breach of his contract of employment. The Claimant accepted the earlier repudiatory breach on receipt of this letter. In cross-examination the Claimant said that the receipt of the letter was the trigger or last straw which led to his accepting the repudiatory breach, and the Employment Tribunal accepted his evidence in this regard. The Respondent argued that the Employment Tribunal lacked jurisdiction to hear the claim because the grievance did not refer to the receipt of the letter as a 'last straw'. The Employment Tribunal held that the Claimant was under no obligation to refer to the letter in his grievance because it was merely the occasion that led him to accept the earlier repudiatory breach which had not been waived. The EAT upheld this decision. HIS HONOUR JUDGE SEROTA QC Introduction This is the full hearing of an appeal by the Respondent employer from a decision of the Employment Tribunal at Newcastle upon Tyne (Mrs M Singleton, Employment Judge, Chairman). The Employment Tribunal decided that the Claimant's constructive dismissal was unfair and awarded him damages for breach of contract and upheld his claim in respect of unpaid wages.[2]A point was taken before the Employment Tribunal by the Respondent to the effect that it had no jurisdiction to entertain claims by reason of an alleged failure to comply with statutory grievance procedures. The Notice of Appeal at paragraph 6:1:3 sought to argue that "Despite the fact that the issue of non-compliance with the statutory procedures was raised in written and oral submissions on behalf of Thornton Print, the Employment Tribunal did not adjudicate upon the submission in its Judgment or Reasons."[3]The appeal came before me on the "sift" and on 15 October 2007 I made an order under the Burns/Barke procedure referring back to the Employment Tribunal the question as to whether it had made findings on the issue as to whether it had jurisdiction to entertain the claim for constructive unfair dismissal by reason of alleged non-compliance with the statutory grievance proceedings; and if it did not findings on this point the Employment Tribunal was invited to say whether or not it considered that it had jurisdiction to entertain the claim and the reasons for that conclusion. The Chairman responded on 8 November 2007. The appeal was then restored to the "sift" and on 27 November 2007 His Honour Judge Clark made an order under Employment Appeal Tribunal Rule 3:7. The Respondent made application under Rule 3:10, which came before His Honour Judge McMullen QC on 14 February 2008. His Honour Judge McMullen QC referred the appeal to a full hearing and gave permission for an amendment to the Notice of Appeal. Factual background[4]We have taken the factual background largely from the decision of the Employment Tribunal.[5]The Respondent is a printing company and is a subsidiary of the DNR group of companies which are jointly owned by a Mr Mallen and a Mr Thornton. Mr Mallen is the Chairman and Chief Group Executive. We understand that Mr Thornton played no part in the day-to-day running of the business. At the time relevant to these proceedings the Respondent employed approximately 60 people.[6]The Claimant had joined the Respondent in 1984 and by 2001 had risen to the position of joint Managing Director. The other joint Managing Director was Mr Armstrong. Although the Claimant and Mr Armstrong were joint Managing Directors the Employment Tribunal were satisfied (contrary to the evidence of Mr Mallen) that the Claimant and Mr Armstrong were placed in a position where they felt they had to follow Mr Mallen's instructions, whose decision they felt unable to effectively challenge.[7]By early 2006, for reasons which are immaterial to this appeal, there was concern about the Respondent's finances. Mr Mallen had instructed the Claimant and Mr Armstrong firstly to reduce overtime and later to reduce the workforce by redundancies. The Claimant was concerned as to his role in the process because it was making him unpopular with the workforce, which regarded him as being involved in decision making, contrary to the true position. When the Claimant expressed his concerns to Mr Mallen those concerns fell on deaf ears.[8]The Claimant and Mr Armstrong were responsible for communication with Trade Unions. Mr Mallen wanted there to be 11 redundancies but the Claimant and Mr Armstrong did not consider it to be necessary for there to be compulsory redundancies because savings could be achieved and the workforce reduced by natural wastage. Nonetheless, on 21 June 2006, compulsory redundancies were announced. The Claimant reported this to the shop floor. The announcement of compulsory redundancies evidently caused significant upset; this was reported both to Mr Armstrong and Mr Mallen, who met without the Claimant's knowledge or without having discussed the matter with the Claimant. Consequent upon this meeting Mr Mallen instructed Mr Armstrong to inform the Claimant he should not attend the shop floor because this was having a demoralising effect on the work force. Mr Armstrong suggested that the Claimant should not come to work and should stay at home. The Claimant did not stay at home but went into work, although he felt very uncomfortable about what had been said to him and the fact he could not go on to the shop floor.[9]On the following day (23 June 2006) a meeting took place between the Claimant and Mr Mallen. There was conflicting evidence as to what took place at this meeting, but the Employment Tribunal accepted the Claimant's evidence. Mr Mallen told him that he had alienated the shop floor workforce and the staff on the administration side, and that in his (Mr Mallen's opinion) the Claimant was not the man to take the company forward. Mr Mallen had become angry with the Claimant when the Claimant would not accept what Mr Mallen was saying. Mr Mallen told the Claimant he should take one or two weeks off from work and should stay away from the factory. The Claimant was unhappy about this. He evidently attended on 26 June to collect artwork for some customers and handed an email to Mr Mallen confirming his wish to get on with his job, and that he would have to visit the factory occasionally to complete on-going work with customers. He said he would honour Mr Mallen's instruction to limit dialogue with the shop floor / office personnel. The decision records:
"2.6 The Tribunal found that Mr Mallen had offered the claimant a week or two off work but that this offer had been made in such a way as to amount to an instruction to do so. The Tribunal also found that when the claimant gave the email to Mr Mallen, Mr Mallen became very annoyed with the claimant and raged at him for disobeying his instructions and going in to the company premises. During that same meeting the claimant told Mr Mallen that he had undermined his authority and that he felt extremely vulnerable and isolated and that because of this he had taken legal advice to which Mr Mallen responded angrily stating that he was not interested in what the legal position was and that it would not affect the outcome thereby indicating to the claimant that he had already reached a decision about the claimant's future with the company."
[10]The Employment Tribunal appear to have accepted such was in fact the case.[11]On 9 July the Claimant was called to a meeting on 10 July with Mr Mallen. Mr Mallen told him that he wanted him to resign and offered him a job as Marketing Director of another subsidiary of the Group but with a substantially lower salary. The Claimant was instructed not to go to the plant or deal with customers. The evidence relating to this was conflicting, but the Employment Tribunal again preferred the Claimant's evidence to that of Mr Mallen.[12]On 17 July a telephone conversation took place between the Claimant and Mr Mallen. The Claimant informed Mr Mallen he was not prepared to resign, saying that it was not in his best interest to do so and that he was not prepared to accept such a substantial drop in salary. He again complained that Mr Mallen had undermined his position and that he had been let down by Mr Mallen. Mr Mallen's response was that in the circumstances "he would have to do what he had to do". Mr Mallen again told the Claimant he could not visit the factory. The decision records:
"2.8. The claimant was told by Mr Mallen that he would write to him with his proposals leaving the claimant in an untenable position being unable to return to the Company premises, unable to contact customers and knowing that if his employment was to continue it would be in a new role in which he had no experience or qualifications. It would also be on a substantially lower salary and a much reduced status. Although the claimant felt that his position was untenable and felt entitled to terminate his employment, feeling that the trust and confidence between him and Mr Mallen had broken down, he decided to wait for the promised letter from Mr Mallen to see what that said and which letter he expected to receive over the next day or two."
[13]The Claimant in his ET1 (paragraph 4:1) and in his witness statement suggested that his employment had terminated on 17 July. The Respondent's case was that it did not appreciate the Claimant considered he had resigned until it received a letter from his solicitors to that effect dated 1 August 2006. We consider this to be somewhat of a red herring. The Claimant was clear in his evidence that he had never resigned during the course of that conversation on 17 July and the Respondent adduced no evidence that he had. A conversation took place between the parties' solicitors on 2 August 2006 and the Claimant's solicitor evidently told the Respondent's solicitor that the Claimant had resigned during the course of this conversation; this is referred to in the letter from the Respondent's solicitor Mr Hesselberth to the Claimant's solicitor Mr John Reid of 4 August 2006 (page 6). In our opinion it is likely that Mr Reid misunderstood his instructions and probably also assumed that because the events of 17 July could constitute a repudiatory breach of the Claimant's contract of employment, that when that breach was accepted it somehow related back to 17 July. Our view is reinforced by the penultimate paragraph of Mr Reid's letter of 10 August 2006 at page 83:
"My client confirms the date of him [sic] constructive dismissal as that of the telephone conversation of the 17 th July. Your client's Chairman Mr Mallen telephoned my client to enquire as to whether or not he agreed to the request to resign as Managing Director and take a position in sales at a much reduced salary. He was advised that he did not accept the same whereupon the Chairman then forbid [sic] him from returning work [sic] reading [sic] my client to conclude that he had been constructively dismissed."
We would note in any event that in the Respondent's ET3 Response the Respondent's solicitors had confirmed the accuracy of the dates of employment given in the ET1, which include the termination date of 17 July 2006.[14]To return to the narrative, the letter expected by the Claimant did not arrive until he received a letter of 27 July. This letter was sent by the Group Accountant Mr Hunter, and called the Claimant to a disciplinary meeting on 2 August to be conducted by Mr Hunter with a relatively junior member of the administration staff to make notes. The decision of the Employment Tribunal records:
"2.10 The letter made it clear that Mr Mallen believed that it was untenable for the claimant to continue in his role as joint managing director and stated that Mr Hunter was to decide if the position portrayed by Mr Mallen was accurate in which case the claimant's employment would be terminated. Enclosed with that letter were a number of anonymous complaints alleged to have been made to Mr Mallen by members of staff. Upon reading the letter the claimant was completely shocked and disbelieving at the allegations contained in it. He was offended at the suggestion that the hearing should be conducted by Mr Hunter who was not employed by the respondent company and also that notes were to be taken by an office clerk who had only been with the company a short period of time. No board members were to be present and it was clear to the claimant that Mr Hunter would not go against a decision which had clearly already been made by the chairman and chief executive of the Group. Furthermore, the claimant knew that he would not be able to properly put his case without having to reveal confidential information which could only be revealed to members of the board. The claimant said that this letter was the last straw for him following on from the meeting on the 10 July, the telephone conversation of the 17 July together with the comments made to him by Mr Armstrong and that it left him with no alternative but to consider his employment as at an end. Despite this the claimant did want to have the opportunity to clear his name and was prepared to attend a hearing for this purpose if it was properly chaired by the chairman of the board with other board members present. The claimant contacted his solicitor and arranged to see him on Monday 1 st August. Following that meeting with his solicitor, the solicitor on behalf of the claimant wrote to the respondent stating that the claimant was prepared to attend the hearing upon the basis stated above but also making it clear that the claimant was treating his employment as at an end upon the basis of constructive dismissal having been refused permission to return to work because he was not prepared to resign his position as managing direction and take up a lesser role at a lower salary."
[15]The reference to the letter of 27 July being a "last straw" was not referred to in the Claimant's witness statement or in his ET1, but it appears to have arisen for the first time in cross-examination when it was put to him by the Respondent. We would also note that the Claimant's case, as put to the Employment Tribunal, after his cross-examination was not as the Tribunal recorded his case as having been put at paragraph 1:1 of the decision. "This is a case where the claimant contends that he was unfairly constructively dismissed by Mr Mallen of the respondent company when he was prevented from returning to work; told that he had alienated the workforce; that he was not the man to take the company forward; was invited to resign being offered a role of marketing director for an associated company within the respondent's group of companies and when he refused to resign he was invited to attend a disciplinary hearing."[16]We will have something to say later in this judgment about questions of a "last straw" which have intruded into the case and provided the Respondent with an argument that there has been failure to comply with grievance procedures. This is an adventitious argument that is not embarrassed by any substantive merits.[17]The Claimant did wish to clear his name, and on 1 August 2006 his solicitors wrote to the effect that he was willing to attend a meeting if it was chaired by the Board Chairman and other Board members were present. The letter also made clear that the Claimant treated his contract as terminated by reason of:
"having been refused permission to return to work other than on condition that he gives up his employment as a managing director of the company and accepts a different position at a lower salary."
See letter 1 August 2006 at page 64.[18]At some point in time, probably on or about 2 August, the telephone conversation between the solicitors we have mentioned took place at which the Claimant's solicitor suggested the Claimant had "resigned" in July. In our view "accepted a repudiatory breach of contract" might be more appropriate. During the course of that conversation Mr Reid evidently made clear that his letter of 1 August should be treated as a grievance for the purposes of the statutory grievance procedure; this matter was clarified by Mr Hesselberth's letter of 4 August 2006, (page 67) when he stated he assumed the grievance was embraced in the first paragraph of the letter of 1 August. This was confirmed by Mr Reid in his letter of 10 August 2006 (page 83); see second paragraph. To return to the letter of 1 August 2006, we have already referred to the first paragraph. We do, however, note that the remainder of the letter consists of a complaint about the letter of 27 July calling the Claimant to the disciplinary hearing. Mr Reid made the point that it was inappropriate to call him to a disciplinary hearing to be chaired by a group accountant who was not a director of the respondent company and to whom he could not disclose confidential and sensitive information.[19]A grievance meeting did take place on 29 August. The Employment Tribunal records that: "2.12 The grievance meeting took place on 29 August 2006 and was conducted by two board directors being Mr Armstrong and Mr Defty. The claimant was asked if he had resigned and he responded by stating that his position had been made untenable by Mr Mallen. The claimant asked if there was anything else he wished to say but was not given the opportunity to respond to the allegations made against him in the letter from Mr Hunter inviting him to the disciplinary hearing, the claimant being told at the grievance hearing that the content of the letter inviting him to a disciplinary hearing was not to be part of the meeting. Having heard the evidence of the claimant and having been referred to the minutes of the grievance hearing in the bundle the Tribunal found that the purpose of the grievance hearing on the part of the respondent was simply to ascertain whether or not the claimant had resigned and, if so, when. The meeting lasted a matter of minutes. Mr Armstrong intending to reconvene the meeting at a later date. On 4 October 2006 Mr Armstrong met with Mr Mallen for what the respondents suggested was an investigatory meeting. The minutes of that meeting simply record that Mr Mallen confirmed that he was happy with his typed record of what happened in his meeting with the claimant on 23 June and 20 July and in the telephone conversation with the claimant on 17 July. He also confirmed that the draft letter which was not sent to the claimant following the telephone conversation on 17 July was a true reflection of the meeting on 10 July. The Tribunal noted that there was no reference in those minutes to any specific allegations against the claimant and none in Mr Mallen's notes of the meeting on 23 June and the telephone conversation on 17 July (there being no written record produced to the Tribunal of the meeting on 10 July). The Tribunal found that this purported investigatory meeting was, in reality, a sham there being no intention on the part of Mr Armstrong to properly investigate the treatment of the claimant by Mr Mallen or the reason behind Mr Mallen's request that the claimant resign. Mr Mallen had admitted that he had formed the opinion that the claimant could not continue in his position of joint managing director and had accordingly asked him to resign and the Tribunal found that neither Mr Armstrong nor Mr Defty were prepared to stand against Mr Mallen and that the adjournment of the grievance hearing was simply to allow Mr Armstrong and Mr Defty the opportunity to discuss matters further with Mr Mallen and to take legal advice. Shortly after the meeting on 29 August the claimant received a letter from the respondents enclosing a copy of the minutes of the meeting with a request that he confirm that these were approved and which minutes were approved subject to certain amendments. That letter from Mr Armstrong stated that he was going on holiday on 31 August and that he may need a few days to make further investigations on his return following which he would arrange a further meeting "if necessary".[20]We would note in passing that it is important to avoid playing a game of semantics as to when and how the Claimant's employment terminated. Lawyers know (or rather should know) even if laymen do not that a repudiatory breach of contract must be accepted if a contract is to be brought to an end; until that acceptance is communicated to the other party it is of no effect. Also, lawyers should know that a "resignation" as a result of a repudiatory breach of contract is in law an acceptance of that repudiatory breach which brings the contract to an end. We would also note that at the disciplinary meeting it is apparent that the Claimant wished to deal with a number of substantive points raised including the content of the letter inviting him to the disciplinary hearing as we can see from the Claimant's witness statement. The Claimant was prevented from raising such matters.[21]On 6 October 2006 the Claimant presented his ET1.[22]The grievance meeting resumed and was concluded on 12 October 2006. Again the Claimant was not able to answer the allegations against him, and this meeting concentrated on as to whether the Claimant had resigned and, if so, when. His grievance was rejected on 29 October. The decision of the Employment Tribunal[23]The Employment Tribunal made the findings of fact we have referred to, but also, of course, dealt with the relevant factual background to the claims of breach of contract and unpaid wages. These are not germane to this appeal and we say nothing about them. It is noted that at paragraph 1:3 the issues the Employment Tribunal had to determine were agreed with the parties as(1) did the Claimant resign from his employment and, if so, when?(2) If the Claimant did resign was he entitled to do so because of the fundamental breach on the part of the Respondent?[24]It is clear from the evidence that was presented to the Employment Tribunal that the Claimant's case (prior to his cross-examination) was that a repudiatory breach of contract had occurred by 17 July. It is helpful in this regard to refer to paragraph 32 of his witness statement at page 78 of the bundle:
"Subsequent to my telephone conversation with Mr Mullen on the 17 th July in which I considered I was left with no alternative but to terminate my employment I did continue to use the company car and mobile phone that I had been provided with. The reason for this is that I believed that I would be entitled to use the care during that notice period. I was also continually in receipt of telephone calls from customers who clearly were not aware of the situation and accordingly I was taking those telephone calls and directing them to Thornton's. I am not an employment lawyer, and at the time I was very depressed at the actions of Mr Mallen in forcing me into a position where I felt unable to continue my employment and as he had put me in that position quite deliberately and I believe with the intention of forcing me to resign. It was clear to me that my employment at Thornton was over as I had never been in this position before and did not know what I was supposed to do."
[25]We have already noted that in the ET3 the Respondent accepted that the Claimant's employment terminated on 17 July. We also refer to paragraph 2:5 of the ET3 in which the Respondent confirmed that the substance of the claim had been raised by the Claimant in writing under a grievance procedure.[26]It is clear, however, that in cross-examination the Claimant did accept that the receipt of the letter of 27 July was a "last straw". At no time prior to cross-examination had it been any part of the Respondent's case that there had been a "last straw" or any further matter of complaint that had not been the subject of a grievance. It also appears that in his final submissions Counsel for the Claimant, Mr Seamus Sweeney, did seek to rely upon matters that had occurred after 16 July; we refer to paragraph 9(f) of Mr Sweeney's skeleton argument, at page 88 of our bundle, in which the sending of the letter of 27 July 2006 against the background of matters up until 17 July was submitted as amounting to a "cumulative breach"; at paragraph 12(a) Mr Sweeney submitted that after the telephone conversation between the Claimant and Mr Mallen on 17 July 2006 the Claimant thought his career was finished; and his position had become untenable; that he wanted to wait for the letter, and made his decision to resign "when he read the letter from Mr Hunter; that the letter inviting him to a disciplinary hearing in front of Mr Hunter (not employed by the company) and a relatively recently employed junior employee (as opposed to a senior member of Thornton Print Limited) was the last straw for him."[27]The Respondent's case was that Mr Morton had resigned because he was invited to a disciplinary hearing. Further, the Respondent's case (which was roundly rejected on the facts) was that the Respondent had not acted in fundamental breach of contract or in any way that entitled Mr Morton to resign and claim that he had been unfairly dismissed. If he had been dismissed, the dismissal was "fair in all the circumstances"; see paragraph 18 Grounds of Resistance (page 46 of our bundle).[28]The Employment Tribunal directed itself by reference to the law on constructive dismissal and referred to the well-known cases of Western Excavating v Sharp [1978] IRLR 27 and London Borough of Waltham Forest v Omilaju [2005] IRLR 35 . The Employment Tribunal at paragraph 4.1 recorded the substance of Mr Sweeney's submissions, which were to the effect that the actions of the Respondent from 21 June 2006 to the termination of employment cumulatively amounted to a fundamental breach; these matters included matters up until the telephone conversation of 7 July and the letter from Mr Hunter of 27 July 2006, which Mr Sweeney submitted constituted a breach of the implied term of trust and confidence. Mr Hesselberth's submissions had been to the effect that the real reason Mr Morton chose to treat his employment as at an end was because he had been invited to attend a disciplinary hearing. The Employment Tribunal concluded at paragraph 4.3 – 4.4:
"4.3 Having considered all the evidence the Tribunal were in no doubt that the actions of the respondent, and in particular Mr Mallen, commencing with the meeting between Mr Mallen and Mr Armstrong on 21 June and culminating in the letter from Mr Hunter dated 27 July 2007 amounted to a fundamental breach of the implied term of trust and confidence. Whilst the Tribunal found that the fact of inviting the claimant to a disciplinary hearing would not in itself constitute a breach of contract when taken in conjunction with the earlier acts and having regard to the fact that it was being suggested that the claimant who was a member of the Board of Directors, attend a disciplinary hearing to be chaired by the group accountant with a member of the junior administrative staff present and with no board members present was sufficient to meet the test of the final straw doctrine. 4.4 The Tribunal then went on to consider whether or not the claimant resigned in response to that fundamental breach and whether or not by not resigning after the telephone conversation on 17 July and waiting until receipt of the letter from Mr Hunter amounted to an affirmation of the earlier breach or breaches. Whilst the claimant undoubtedly felt that the trust and confidence had been broken by 17 July and that at that point in time he would have been entitled to treat his employment as at an end the Tribunal found that waiting for receipt of a letter setting out the respondents proposals and which letter he expected to receive in a matter of days was a reasonable precautionary step to take and that what amounted in the end to a delay of thirteen days was insufficient in these circumstances to amount to an affirmation. As the claimant did not communicate the fact that he was treating his employment as at an end until the letter sent by his solicitor on 1 August the Tribunal found that this was the effective date of termination."
[29]The Employment Tribunal then went on to deal with the claims for breach of contract and unpaid wages, which we do not need to consider.[30]Although the Respondent in its submission sought to argue that in so far as the Claimant relied upon a "final straw" not raised in the grievance letter of 1 August thus depriving the Employment Tribunal of jurisdiction, it asserted that only on the first day of the hearing did it know that the Claimant had confirmed his final position as to his resignation. This was somewhat disingenuous because the Claimant's case, as set out in his witness statement which we have referred to, was that the events of 17 July led to his resignation which he mistakenly believed backdated to 17 July when first communicated to the Respondent in the letter of 1 August. We have already noted that in its response the Respondent accepted the accuracy of the Claimant's case as to the effective date of determination of his employment as being 17 July.[31]We understand that at the Employment Tribunal both Claimant and Respondent approached the case on the basis that the Claimant's resignation had been communicated on or about 1 August in the letter from his solicitors, and thus 1 August was the effective date of termination.[32]The Notice of Appeal raised the jurisdiction point; there was no reference in the grievance letter of 1 August to events post-16 July and as the Employment Tribunal found these were part of the cumulative breach of contract, the Employment Tribunal, it was submitted, had no jurisdiction to entertain the claim, notwithstanding the letter of 1 August had specifically referred to the Claimant's complaint about being called to a disciplinary hearing chaired by the group accountant who was not a director of the Respondent. The Notice of Appeal argued, therefore, that the Employment Tribunal had had no jurisdiction to entertain the claim. As the question had apparently been raised before the Employment Tribunal but was not referred to in its decision I made the order under the Burns/Barke procedure and invited further comment from the Employment Tribunal. This was provided in the letter from Mrs Singleton of 8 November 2007 which is as follows:
"In response to the Order of His Honour Judge Serota Q.C. the Tribunal responds as follows. The Tribunal did consider and made findings on the issue of jurisdiction after this had been raised by Mr Hesselberth on behalf of the Appellant in his final submissions. The Tribunal found that Mr Morton had decided to resign following the telephone conversation with Mr Mallen on the 17 July 2006, Mr Morton feeling that his position at that time was untenable the trust and confidence having broken down but that he took the precautionary step of waiting for the letter that Mr Mallen had said that he would send before communicating his decision. Whilst the Tribunal found that the content of the letter dated 27 June 2006 [sic 27 July 2006] (suggesting that the disciplinary hearing be chaired by the group accountant with notes being taken by a junior member of staff) was sufficient to amount to the last straw it was not causative of Mr Morton's decision to resign and was therefore not something in respect of which he was required to raise a grievance. Furthermore, the Tribunal found that where there has been a series of breaches leading to a claim for constructive dismissal it was not a requirement for the employee to grieve in respect of each and every act providing that the employer knew the basis of the complaint and in this case the Tribunal found that it did so. In the alternative the Tribunal found that the letter of the 1 August 2006 sent by Mr Morton's solicitors to Mr Hunter of Thornton Print Ltd made reference to the letter of the 27 June 2006 and Mr Morton's concerns about its content and therefore Mr Hunter was on notice that Mr Morton had a grievance in this respect although the Tribunal noted that Mr Hunter's concern at the grievance meeting was simply to ascertain whether or not Mr Morton had resigned and if so, when."
Discussion as to the law[33]We will shortly come to the parties' submissions but firstly we need to set out the relevant statutory provisions and refer to the appropriate authorities. We have no desire to add to the volume of judicial pronouncements on s32 of the Employment Act 2002 Schedule 2 and the Employment Act 2002 (Dispute Resolution) Regulations 2004 . These will shortly pass away unlamented but we need to refer briefly to these provisions. Section 32(2) of the Employment Act 2002 (which applies to the present case) is in the following terms:
"(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if - (a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and (b) the requirement has not been complied with."
[34]The standard procedure which applies to the present case contains two steps:
"(i) Step 1: statement of grievance; 6 The employee must set out the grievance in writing and send the statement or a copy of it to the employer. (ii) Step 2: meeting; 7(1) The employer must invite the employee to attend a meeting to discuss the grievance. (2) The meeting must not take place unless—(a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6, and (b) the employer has had a reasonable opportunity to consider his response to that information… "
[35]We also need to refer to the Employment Act 2002 (Dispute Resolution) Regulations 2004 . Regulation 2(1) contains relevant interpretation and provides as follows:
"grievance" means a complaint by an employee about action which his employer ha s taken or is contemplating taking in relation to him ;"
Regulation 6(1) concerns the application of the grievance procedures: (1) The grievance procedures apply, in accordance with the paragraphs (2) to (7) of this regulation, in relation to any grievance about action by the employer that could form the basis of a complaint by an employee to an employment tribunal under a jurisdiction listed in Schedule 3 or 4, or could do so if the action took place. [note includes unfair dismissal under S111 ERA 1996] (2) Subject to paragraphs (3) to (7), the standard grievance procedure applies in relation to any such grievance… (6) Neither of the grievance procedures applies where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action against the employee unless one of the reasons for the grievance is a reason mentioned in regulation 7(1). Regulation 7 sets out the circumstances in which parties are treated as complying with the grievance procedures:
"(1) Where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action against the employee and one of the reasons for the grievance is - (a)… (b) that the grounds on which the employer took the action or is contemplating taking it were or are unrelated to the grounds on which he asserted that he took the action or is asserting that he is contemplating taking it, the standard grievance procedure or, as the case may be, modified grievance procedure shall apply but the parties shall be treated as having complied with the applicable procedure if the employee complies with the requirement in paragraph (2). (2) The requirement is that the employee must set out the grievance in a written statement and send the statement or a copy of it to the employer - (a) where either of the dismissal and disciplinary procedures is being followed, before the meting referred to in paragraph 3 or 5 (appeals under the dismissal and disciplinary procedures) of Schedule 2,"
Neither party has addressed us in relation to this somewhat opaque regulation.[36]We were referred to a number of authorities considering the effect of the statutory provisions and regulations to which we have referred; Shergold v Fieldway Medical Centre [2006] IRLR 76 , Canary Wharf Management Limited v Edebi [2006] IRLR 416 and the unreported decision of Cyprus Airways v Lambrou (EAT/0526/06 5 July 2006). There are numerous other authorities but the following principles are now clear so far as concerns the standard procedure and in so far as are relevant to this case. So far as paragraph 6 of schedule 2 Part II of the Act is concerned the obligation on the employer is very simple or minimal; it is simply that the grievance must be set out in writing. There is no requirement to set out the grievance in technical detail. The employee needs only to identify the complaint. There is no obligation to set out the basis of the claim. It is necessary that the employer should understand the general nature of the claim. As Burton J pointed out in Shergold the grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance.[37]We would add that this issue should not be approached in a technical way. However, where a complaint to an employment tribunal relies upon on a specific incident or series of incidents as a substantial part of the case, that complaint must be the subject of a grievance if it is to be justiciable. Further detail or particulars may, of course, be required for the Step 2 meeting.[38]The purpose of these Regulations is well set out by HHJ McMullen QC in the Cyprus Airways case at paragraph 22:
"The purpose of the regulations is to ensure that disputes are resolved at workplace level as quickly as possible without resort to an Employment Tribunal. The purpose of registering a grievance is so the employer can put right what is wrong in the Claimant's mind, or can at least vindicate the Claimant's position by having a meeting and discussing it. When there is no indication that what is going wrong is likely to lead to a dismissal, and where there is no mention of other matters on the Claimant's mind, that process is stultified. There is no opportunity for the employer to put right - let us take this case – the complaint of disability discrimination by making adjustments or by stopping bullying and harassment. Thus, in order for these to be promoted at an Employment Tribunal under the new regime, there must have been a reference to them, in informal terms, so that action can be taken pursuant to the statutory procedures."
[39]We need to refer to Cyprus Airways v Lambrou in a little greater detail because the Respondent has put heavy reliance upon it to support the proposition that a grievance, if it is to be effective in establishing the jurisdiction of the Employment Tribunal, must set out the specific incident that caused the claimant to resign if that incident is part of a cumulative breach of contract. In this case HHJ McMullen QC considered an appeal from an Employment Tribunal where the claimant had sought to rely on four specific complaints in support of a claim of unfair dismissal. Only one of the four acts of which he complained had been the subject of a grievance. His complaint as put to the Employment Tribunal was that as a result of a cumulative series of events (including those not subject to a grievance) he had been constructively dismissed. The Employment Tribunal permitted him to rely upon that one act only. But HHJ McMullen QC found that it was not possible to sever the four grounds on which the Claimant alleged constituted the basis for his constructive dismissal and to proceed on only the one in respect of which a grievance had been lodged. The grievance that had been lodged related to the terms and conditions of his employment only but not constructive dismissal based on other more substantial grounds, including disability discrimination constituted by bullying and harassment. The factual basis of that case is not altogether easy to discern from the unreported judgment but HRJ McMullen QC did have this to say at paragraph 30:
"the Claimant did not make plain that he was leaving; he did not make plain that it was because of his employer's conduct towards him, he did not say what that conduct was and he did not identify the final straw which in fact caused him to leave."
[40]The ratio of the judgment on this part of the case appears earlier at paragraph 25 when HRJ McMullen QC said:
"I do not accept that all the Claimant has to show is a severed part of his original motivation. The judgment of an Employment Tribunal would be bound to include consideration of what it was that motivated the Claimant to terminate his employment, on 30 September as he thought. What the Tribunal would do on the basis of the present material is to find that all four of these matters were in the Claimant's mind and then to examine whether they, in aggregate, constituted a breach by the Respondent of the fundamental term which evinced an intention no longer to be bound by the contract and which the Claimant accepted promptly.. It is not only unrealistic, but it seems to me to have no foundation in law either, for a Tribunal to focus solely on the issue which has now been vouchsafed to it, which is to consider only whether or not it was a constructive unfair dismissal for the Respondent to fail to clarify the precise terms and conditions of employment."
[41]The law relating to repudiatory breaches of a contract of employment is well summarised by the Court of Appeal in Omilaju v London Borough of Waltham Forest [2005] 1 All ER 75. We can do no better than to cite from the judgment of Dyson LJ at paragraph 14:
"The following basic propositions of law can be derived from the authorities. (1) The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: see Western Excavating (ECC) Ltd v Sharp [1978] 1 All ER 713 , [1978] QB 761 . (2) It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA (in liq), Mahmud v Bank of Credit and Commerce International SA (in liq) [1997] 3 All ER 1 at 5, 14–16, [1998] AC 20 at 34–35, 45–46 per Lord Nicholls of Birkenhead and Lord Steyn respectively. I shall refer to this as 'the implied term of trust and confidence'. (3) Any breach of the implied term of trust and confidence will amount to a repudiation of the contract: see, for example, Woods v WM Car Services (Peterborough) L td [1981] IRLR 347 at 351, [1981] ICR 666 at 672 per Browne-Wilkinson J. 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's case [1997] 3 All ER 1 at 5, [1998] AC 20 at 35, 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.' (My emphasis.) (5) A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put in Harvey on Industrial Relations and Employment Law vol 1, para 480: 'Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the "last straw" which causes the employee to terminate a deteriorating relationship.' "
[42]The Court of Appeal then went on to consider the case where an employee seeks to rely upon an incident as a "last straw", and whether that incident needs be itself a breach of contract. Dyson LJ noted that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Although the final straw may be relatively insignificant, it must not be utterly trivial. He concluded that (at paragraph 19):
"A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase 'an act in a series' in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant. I see no need to characterise the final straw as 'unreasonable' or 'blameworthy' conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect."
[43]It is also important to bear in mind that it is settled law that a repudiatory breach of a contract of employment does not of itself bring the contract to an end until the innocent party has accepted the repudiation and communicated his acceptance to the other party.[44]Before we turn to consider the parties' submissions we remind ourselves we must consider the decision of the Employment Tribunal as a whole and not subject it to detailed textual criticism. The Respondent's case[45]The first ground of appeal and the principal point made with the greatest clarity by Mr Sutton was that the Employment Tribunal found there had been a cumulative breach of the Claimant's contract of employment and the letter of 27 July inviting the Claimant to a disciplinary meeting was the last straw. As reference to the letter of 27 July is not included in the letter of 1 August and it was excluded from the grievance the Claimant wished to raise, Mr Sutton submitted forcefully that the Employment Tribunal lacked jurisdiction to hear a complaint based in part upon that breach. He relied heavily upon the decision in Cyprus Airways v Lambrou , which he submitted was authority for the proposition that for a grievance to be effective it must set out the specific incident causing a claimant to resign as part of a cumulative breach. Mr Sutton submitted that Mr Morton had changed his case during the hearing and that reliance upon the letter of 27 July amounted to a "sea change".[46]The second ground of appeal was to the effect that there was no evidence to support the finding by the Employment Tribunal at paragraph 2:10 of its decision that the letter of 27 July was the last straw; alternatively it is said that that finding was perverse. We were addressed on the evidence in relation to that.[47]The third ground of appeal argues that the Employment Tribunal misapplied what is referred to as the "last straw doctrine". It is said that the Employment Tribunal was wrong to find that the letter of 27 July 2006 is capable of amounting to a "last straw". It is said the Employment Tribunal should have confined itself to the factors which the Claimant said had prompted him to resign on receipt of the letter but should not have found that the proposal that the hearing be conducted by the group accountant contributed to any breach of contract "to any degree". Alternatively the finding is said to be perverse. We were addressed in relation to the evidence in support of this submission.[48]The fourth ground of appeal attacked the claim for breach of contract. Mr Sutton, however, accepted that this ground of appeal is dependent on the success of the appeal in so far as it related to issues of unfair dismissal.[49]The fifth ground of appeal, added by amendment pursuant to the order of HHJ McMullen QC, was that the finding in paragraph 2:10 of the decision of the Employment Tribunal and in paragraph 4:3 were inconsistent with the contents of the Chairman's letter of 8 November 2007, to which we have referred. Further, it is said that the additional "findings" were unsupported in the evidence. Findings in the decision are said to be contradictory to those in the letter.[50]Mr Sutton points to the statement in the letter of 8 November that the "last straw" was not causative of Mr Morton's decision to resign. Mr Morton's unequivocal evidence was that it was the receipt of the letter of 27 July that did cause him to resign. It was unsatisfactory that in response to the Respondent's appeal, the Employment Tribunal should add a gloss on its earlier findings. We were invited to find that that is what had happened. The Claimant's submissions[51]In relation to the first three grounds of appeal Mr Sweeney submitted that the grievance letter of 1 August adequately set out the grievance and there was no need to refer to any "last straw" event. The substance was set out sufficiently in the letter. It is clear, submitted Mr Sweeney, that the Employment Tribunal considered that what had occurred prior to the letter of 27 July amounted to a repudiatory breach of contract. The Employment Tribunal found that the Claimant was entitled to wait before taking action. It was also entitled to find that he had not affirmed the contract and there was no need in fact for there to be any "last straw". He noted that the question of a "last straw" had only emerged in the Claimant's cross-examination.[52]In relation to the fourth ground of appeal Mr Sweeney conceded that if the appeal in relation to unfair dismissal was allowed we would be obliged to allow the appeal in relation to wrongful dismissal. In so far as the fifth ground of appeal was concerned (inconsistency) we should read the decision as a whole and it was clear that there was in fact no inconsistency. Discussion and Conclusions[53]It is convenient to take grounds (1) and (5) together. It is unfortunate that the question of whether the letter of 27 July 2006 constituted a last straw has taken such prominence in this appeal. Mr Morton's case as pleaded, and as clearly understood by the Employment Tribunal, was that the events shortly before and of 17 July amounted to a repudiatory breach of contract and that he was waiting for the letter he had been promised to decide whether or not he would accept that breach. The fact that the letter constituted a further breach of contract was not a necessary part of Mr Morton's case. Its principal relevance was that it provided the occasion when he determined to accept the earlier breaches of contract. We do not consider, in the circumstances, that it was necessary for the grievance letter to do more than complain about the repudiatory breach of contract which led him to terminate his employment. It was not necessary for him to refer to any "last straw"; that was not part of his grievance. The conduct of the Respondent prior to that date was. It is worthy of note that in paragraph 2:5 of its ET3 response the Respondent answered affirmatively the question "Has the substance of this claim been raised by the Claimant in writing under a grievance procedure?"[54]In any event the Respondent was well aware by the date of the grievance meeting on 29 August that Mr Morton was also critical of the letter of 27 July and was being called to a disciplinary meeting and that he was treating his contract as having been terminated as from 17 July 2006 . Indeed as we have already pointed out the Respondent in its ET3 response at paragraph 3:1 had accepted that the dates given by the Claimant as the dates of his employment (including the date of termination) were correct. These matters in themselves illustrate how hollow are the Respondent's submissions and demonstrate how technical and formalistic the point is.[55]The "last straw" is in danger of becoming a term of art in employment cases; we note for example the use of the word "doctrine" of the last straw that has appeared in this case. The principle, if it be one, means no more than that the final matter that leads to the acceptance of a repudiatory breach of contract when taken together and cumulatively with earlier conduct entitles a party to accept a repudiatory breach of contract, whether that last matter is in itself a breach of contract or not. This last point is made clear in the case of London Borough of Waltham Forest v Omilaju which we have quoted earlier. It is necessary to look at the decision as a whole. It is quite clear that the Employment Tribunal found there had been a repudiatory breach of contract which had never been affirmed and that the Claimant was waiting as a reasonable precautionary step for the letter he had been promised before deciding whether to accept that repudiatory breach. We refer, of course, to the decision of the Employment Tribunal at paragraphs 2:8 and 4:4. The language used in paragraph 2:8 clearly demonstrates that the Employment Tribunal considered there to have been a repudiatory breach of contract. That is why the Employment Tribunal find that Mr Morton was "in an untenable position being unable to return to the company premises, unable to contact customers, and knowing that if his employment was to continue it would be in a new role in which he had no experience or qualifications. It would also be on a substantially lower salary and a much reduced status." This is the language of repudiatory breach. Further, there would have been no need to refer to issues of affirmation in paragraph 4:3 of the decision unless the Employment Tribunal were satisfied that there had been a repudiatory breach. It is fanciful to suggest that the Employment Tribunal failed to decide that there had been a repudiatory breach by 17 July.[56]We would add that the matters of 27 July in any event were relevant to the issue of whether there had been any affirmation of the contract by Mr Morton as the Respondent asserted and which the Employment Tribunal rejected. Had there been an affirmation further breaches would have "revived", as the Claimant put it in his written submissions to the Employment Tribunal, the earlier breaches.[57]The fact that the Employment Tribunal did not specifically deal with the point in its original judgment is likely because it considered there was nothing in the point on the facts that it had found, namely that a repudiatory breach had occurred by 17 July and that the receipt of the letter of 27 July was merely the trigger for the acceptance of the earlier repudiatory breach which did not have to be specifically referred to in the grievance. In his submissions and reply Mr Sutton candidly accepted that if the Employment Tribunal had merely found the letter of 27 July to have been no more than a trigger this ground of appeal fell away. We note that it is somewhat illogical that if the events are merely "a trigger" the Respondent accepts there is no need to refer to them in the grievance but if they are more significant such as to amount to a breach of the contract, that would be fatal to the claim if reliance was sought to be placed upon it.[58]We are satisfied there is no inconsistency between the decision and the letter of 27 July 2007 from the Employment Judge. The Employment Tribunal were satisfied, as we have said, that there had been a repudiatory breach and that the receipt of the letter of 27 July was merely the trigger for the acceptance of that breach. The fact that it might also be characterised as an additional breach that might be added to others was of no significance in determining whether the Employment Tribunal had jurisdiction. In this case the Claimant was not seeking to rely upon the sending of the letter of 27 July as part of the repudiatory contract that entitled him to treat the contract as having been repudiated. He was not asserting that it was the last straw in the sense that it was the final matter that constituted a repudiatory breach of contract on the part of the Respondent. That conduct had already occurred as found by the Employment Tribunal. The letter was not part of that conduct but merely the trigger for the decision to accept the breach that had already occurred.[59]We do not consider that the Cyprus Airways case is authority for the proposition that where the substance of a complaint is made known it is also necessary to identify the trigger for accepting the repudiatory breach. That would not in our view be consistent with the authorities or with the principles we have referred to in relation to contents of grievance letters. The trigger for a decision to accept a repudiatory breach of contract need not itself be the subject of a grievance. In this case the Claimant was consistent in complaining that his position became untenable by 17 July 2006 so that he was entitled to treat his employment as at an end and the Employment Tribunal accepted that was the case. The Respondent we have observed was well aware of the complaints relating to the letter of 27 July and the Claimant did not need to prove that it was a further or cumulative breach of his contract of employment; the repudiatory breach or breaches, as we have said, had already occurred and the Claimant had not affirmed the contract.[60]We now turn to ground two. This is simply not supported by the facts. The letter of 1 August in itself makes clear how the Claimant regarded the letter of 27 July, and it is clear from the findings of the Employment Tribunal at paragraph 2:10 of the decision that its finding was clearly based on evidence from the Claimant in accordance with his ET1 and paragraph 33 of his witness statement. He made clear that he considered his position had been made untenable and that the disciplinary hearing was intended to assist the Respondent to try and justify Mr Mallen's unjustifiable actions and cover up any mistakes they had made. This was in addition to his complaints about the persons to conduct the hearing. There was clearly ample evidence for the Employment Tribunal to conclude as it did; there is nothing in this point and we say no more about it.[61]As we reject the appeal in so far as relates to unfair dismissal the appeal in relation to the claim for wrongful dismissal falls away.[62]Since we came to our decision the Respondent has supplied us with the decision of the Employment Appeal Tribunal in Turner v Sandham and Others (UKEAT/0028/08/ZT). Mrs Singleton is a part time Employment Judge. In the case we have mentioned her conduct as solicitor in the case was the subject of serious criticism by the Employment Judge and by Wilkie J on appeal[63]In our opinion the fact that Mrs Singleton committed impropriety as solicitor in another case is not relevant to the question of whether the Employment Tribunal over which she presided in the instant case made an error of law. It is suggested that her impropriety may have a bearing on the alleged discrepancy between the original decision and the letter of 8 November 2007. We see no merit in this suggestion because as we have explained it is clear that the Employment Tribunal concluded that there had been a repudiatory breach of contract before receipt by the Claimant of the letter of 27 June 2006.[64]We would conclude by expressing our gratitude to Mr Sutton and Mr Sweeney for their helpful submissions and skeleton arguments.