F & C ASSET MANAGEMENT PLC MARRACK TONKIN PETER COLE DAVID LOGAN v GILLIAN SWITALSKI [2008] UKEAT 0423_08_0912

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0423_08_0912Case No Appeal No. UKEAT/0423/08/CEA UKEAT/0424/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
F & C ASSET MANAGEMENT PLC MARRACK TONKIN PETER COLE DAVID LOGANAPPELLANTSGILLIAN SWITALSKIRESPONDENTUKEAT/0424/08/CEA F & C ASSET MANAGEMENT PLCAPPELLANTGILLIAN SWITALSKIRESPONDENT
Before
Mr Justice Burton Mr B Beynon Mrs R ChapmanDate 9 December 2008
[1]APPEARANCES For the Appellants: MS MONICA CARSS-FRISK (One of Her Majesty's Counsel) and MS JANE MULCAHY (of Counsel) Instructed by: Messrs McDermot Will & Emery UK LLP Solicitors 7 Bishopsgate London EC2N 3AR For the Respondent: MS SUZANNE McKIE (of Counsel) Instructed by: Messrs Lapthorn Tarlo Lyons Solicitors Watchmakers Court 33 St John's Lane London EC1M 4DB SUMMARY PRACTICE AND PROCEDURE: Review UNFAIR DISMISSAL: Constructive dismissal SEX DISCRIMINATION: Direct Two appeals in respect of two matters heard together by the Employment Tribunal:(i) Review Appeal : the Tribunal applied the wrong legal tests and/or erred in law and/or was perverse in dismissing the Appellant's application for Review by reference to fresh evidence and/or the interests of justice. Application for Review granted and Review of the First and Second Cases remitted to a different Tribunal.(ii) Fourth Case Appeal : Tribunal had no evidential basis and/or gave no adequate reasons for its conclusion that there was a last straw and/or erred in law in concluding that there was unaffirmed repudiatory breach and/or victimisation and erred in law and/or was perverse and/or gave no adequate reasons in respect of findings of sex discrimination or harassment. Save for certain of the sex discrimination and harassment claims which were dismissed, balance of the claims remitted for rehearing by a different tribunal. THE HONOURABLE MR JUSTICE BURTON This is the latest event in an ongoing dispute between Ms Gillian Switalski ("the Claimant"), a former employee of F & C Asset Management plc ("the Appellant") and the Appellant, and three of the Appellant's employees who have been joined by her as Respondents to various proceedings. There have been four sets of proceedings brought by the Claimant, all of which have been the subject of hearings before the same Tribunal at London Central, chaired by Miss A M Lewzey (Members: Miss J McIntosh and Mr M Javed). The First, Second and Third Cases, as they have come to be known, were heard together between 19 November and 10 December 2007 (the "November Judgment"). This resulted in substantial success for the Claimant in the first two cases, in which judgment was given in her favour in respect of claims for direct sex discrimination and harassment in the First Case, and direct sex discrimination and victimisation under the Sex Discrimination Act ("SDA") in the Second Case (though in each set of proceedings she failed in respect of certain other claims), while in the Third Case her claims for sex discrimination, victimisation and disability discrimination failed. Such Judgment (the "Main Judgment") was sent to the parties on 11 January 2008. The Appellant appealed against the judgment in favour of the Claimant in the First and Second cases (there was neither appeal nor cross-appeal in the Third Case) and, although the Appellant's appeals in the First and Second Cases were unsuccessful at the Employment Appeal Tribunal (chaired by Judge Peter Clark) on 23 May 2008, permission to appeal to the Court of Appeal has been granted, and the appeals are expected to be heard in January.[2]The hearing before us was of two appeals by the Appellant against two further decisions of the same Tribunal in favour of the Claimant. Both decisions were made after the same hearing, over six days between 16 and 27 June 2008, by judgments delivered to the parties on the same day, 13 August 2008. By one judgment ("the Review Application Judgment") the Tribunal refused an application by the Appellant for a Review of its earlier decisions, described above, in the First Case and the Second Case: the Appellant appeals that decision ("the Review Appeal"). The other judgment was also in favour of the Claimant in a fourth set of proceedings ("the Fourth Case"). The Appellant appeals in respect of the findings in favour of the Claimant made by the Tribunal in the Fourth Case. For obvious reasons this is called the Fourth Case Appeal. The Claimant had remained in the employment of the Appellant when she commenced proceedings in the First, Second and Third Cases, but resigned, in circumstances which the Tribunal found in their judgment ("the Fourth Case Judgment") to amount to constructive dismissal, on 7 September 2007, shortly before the November hearing. The Claimant's solicitors have changed, and her present solicitors were only instructed in May 2008.[3]Because the Review appeal naturally refers back to the events which form the subject matter of the judgment in the First and Second Cases, which the Appellant had applied to Review, it was the election of the parties, and appears more convenient to us in this judgment, to deal first with the Review Appeal. As will appear, the basis upon which the application for Review was made by the Appellant to the Tribunal was by reference to fresh evidence, being made pursuant to Rule 34(3) of the Employment Tribunals Rules of Procedure 2004 , which provides:
"(3) Subject to (4), decisions may be reviewed on the following grounds only … (d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or (e) the interests of justice require such a review."
[4]There was no dispute between the parties that the principal authority to which reference is made for the purposes of Rule 34(3)(d) is Ladd v Marshall [1954] 1 WLR 1489 , and that, in relation to the interests of justice Review, the most relevant authority is Flint v Eastern Electricity Board [1975] ICR 395. So far as the Fourth Case Appeal is concerned, the central question, as will be seen, was that of constructive dismissal, by reference to what has now become referred to as the "last straw", and there was no dispute that the most significant authority of assistance is Gab Robins (UK) Ltd v Triggs [2007] IRLR 857 , which helpfully summarises the earlier authorities. The Background[5]The Claimant was employed by the Appellant as Director and Head of Legal from 1 June 2001 until 7 September 2007. She had worked under a three days a week consultancy agreement from May 2000, dedicating the rest of her week to looking after her family and to a legal website known as "Legalpulse" and to property development interests. As from 1 June 2001, she commenced a full time permanent contract, obliging her to devote the whole of her working time, attention and ability to the duties of her appointment. Her responsibilities included at all times a specific responsibility in respect to tendering for, and selecting, those external firms of solicitors who would, from time to time, perform legal work on the Appellant's behalf.[6]In October 2004 a merger was completed with Isis Asset Management plc. It was resolved that the legal team headed by the Claimant would be retained, and that Mr Tonkin, who came from Isis, would be in overall control both of the legal team and the company secretarial team, whereafter the Claimant reported directly to Mr Tonkin. Mr Cole was Group Head of Human Resources, to whom the Claimant expressed concerns in April 2005 about her treatment by Mr Tonkin, and to whom she complained again in July 2006 about Mr Tonkin's interim appraisal. They held a meeting on 18 July 2006.[7]In August 2006, at a further meeting between Mr Cole and the Claimant, there was a discussion about the Claimant leaving the company as being an option. In August 2006, whilst on holiday in India, the Claimant contracted an infection, cellulitis, following an earlier operation in July 2006, and she had two operations under general anaesthetic whilst in India. On her return to the United Kingdom, she had further operations under general anaesthetic and required frequent visits to her consultant's and her GP's surgeries. She went on sick leave, which continued until her employment came to an end 12 months later. There continued discussions whether, and if so on what terms, she would be in a position to return to work, and the Claimant supplied to the Appellant her GP's letter indicating that " worries concerning her eventual return to work, and the environment she is in, [are] causing her an element of stress ".[8]There were then in September 2006 discussions as to the future, which included the option of proposals for a change in her working practice which the Claimant regarded as draconian, or a severance package, which the Claimant considered to be less favourable than the package offered to comparable male members of staff leaving at the time of the merger. On 29 September 2006, Mr Cole emailed the Claimant to indicate that " I would like to see you, as these matters are much better addressed face to face rather than by exchange of emails ", proposing a meeting at her home. The Claimant declined to have such a meeting, and Mr Cole indicated that he was " very disappointed that we were unable to meet today as we had agreed ". The Tribunal, in paragraph 104 of its judgment in respect of the First, Second and Third Cases, recorded what it concluded to be " the extent of [the Claimant's] discomfiture by Mr Cole's insistence on a meeting ".[9]On 5 October 2006 she raised a lengthy grievance against both the Appellant company and Mr Tonkin, and the grievance procedure was conducted by Patrick Johns, Head of Institutional Business and member of the Management Committee. The grievance meeting took place at her home on the afternoon of 23 October 2006, to suit her convenience, and, as the ET found, her sister attended " because she was unable to cope alone in view of the stress she was suffering " (paragraph 107 of the Main Judgment). By a letter dated 26 October 2006, the Appellant Company's doctor reported her GP's statement that she was mainly worried at the moment about the discussions with the company regarding her employment and situation at work: " apparently there is some uncertainty with regard to her work position which is causing her much stress. As a result of this she has developed reactive depression ".[10]By letter dated 10 November 2006, the Claimant's then solicitors wrote to Mr Tonkin and Mr Cole, putting each on notice that " unless we receive reasonable settlement proposals within 14 days … you will be joined in our Client's employment tribunal proceedings. Please note that our Client also intends to issue proceedings against you personally under the Protection from Harassment Act 1997 ".[11]Mr Johns' conclusion in relation to her grievance document was that there had been no bullying, harassment or intimidation by Mr Tonkin or Mr Cole, that she had not been treated less favourably than others with regard to the flexibility to work from home, and that she had not been victimised.[12]The Appellant company then decided to call the Claimant to a disciplinary hearing in relation to her recent conduct, including the sending of her solicitor's letter dated 10 November 2006. This disciplinary hearing was to take place before Mr Logan, the Chief Finance Officer, on 28 November 2006, but her solicitors sought a postponement of it, until the Claimant had been seen by a psychiatrist, on 27 November, the day before it was to take place. On that same day the Claimant presented the First Case to the Employment Tribunal against the Appellant, Mr Tonkin and Mr Cole, and the disciplinary meeting was postponed. By a letter dated 29 November, the Claimant's solicitors indicated that she had seen her psychiatrist and that his advice was that she should not attend the disciplinary hearing, as this would make her condition worse.[13]On 19 December 2006, the Appellant's solicitors wrote suggesting mediation as a way forward, and notifying her of the company's conclusion that it would be appropriate to reserve conclusion of the disciplinary enquiry until the New Year in view of the issues concerning the Claimant's health. Her GP signed her off for stress and depression for two months from 16 January 2007.[14]The Claimant put in an appeal in respect of the rejection of her grievance, and the Appellant's solicitors wrote to her solicitors on 23 January 2007 acknowledging such appeal and stating:
"Our client's strong preference is not to progress with any disciplinary proceedings without having given your client an opportunity to discuss all the relevant issues with them face to face, including whether the current breakdown in trust and confidence in irretrievable."
[15]The Claimant's sick pay was due to expire in February 2007, and the Claimant made application to the relevant insurers, UNUM, for income replacement on 27 January 2007, stating that the diagnosis was " stress and reactive depression ".[16]On 5 February 2007, the Claimant filed a further grievance. This related to her being asked to attend a disciplinary hearing and complained that the Appellant had failed to make a decision in her absence. The allegations were of sex discrimination and victimisation.[17]By a letter of 15 March 2007, the Claimant's solicitors sent to the Appellant's solicitors a report from a Professor Hirsch, dated 13 March 2007, containing a diagnosis that the Claimant was suffering from an Adjustment Disorder and Severe Affective Disorder. On 5 April 2007, the Claimant presented to the Employment Tribunal her Second Case against the Appellant, joining Mr Tonkin and Mr Logan as additional Respondents.[18]On 22 May 2007, UNUM declined to pay income replacement on the grounds that its psychiatrist Dr Gill had concluded that the Claimant was not suffering from any mental illness. The Claimant subsequently appealed, and the Appellant continued to pay salary to the Claimant pending the outcome of the appeal. The UNUM appeal was determined and notified by a letter dated 2 July 2007, which confirmed that UNUM's Chief Medical Officer had found no indication that the Claimant had any illness or injury of sufficient severity to prevent her working at the date of the commencement of the claim: whereupon the Appellant company ceased to pay the Claimant her salary. A copy of Dr Gill's report of 27 April 2007 was disclosed to the Appellant prior to the November hearing.[19]On 31 August 2007 the Claimant presented her Third Case to the Employment Tribunal, a claim relating to the grant to her of a £40,000 annual bonus in March 2007 in respect of the year ending December 2006: as set out above, her claims for sex discrimination, victimisation and disability discrimination in that regard were dismissed.[20]The following claims made in the First and Second Cases were however resolved in her favour: i) that the Appellant company and Mr Tonkin were liable for direct sex discrimination by virtue of placing pressure on the Claimant to adopt and comply with a non-flexible working arrangement which was less flexible than the arrangement she had had prior to the merger. ii) that the Appellant company and Mr Tonkin were liable for direct sex discrimination in relation to unfair treatment by reason of her sex with regard to micromanagement and unreasonable scrutiny of her expenses, of her performance and of her time, including scrutiny of her in relation to possible conflicts of interests; and in relation to Mr Tonkin's failure to foster a working relationship with her, taking her to lunch less often than male members of her department and not sitting down with her to discuss the legal department until 22 February 2005, despite having taken it over in October 2004. iii) the Appellant company and Mr Tonkin were found liable in relation to the Claimant's complaint that Mr Tonkin ignored her concerns about the business and her team, failing to provide sufficient support. iv) the Appellant company and Mr Tonkin were found liable in relation to what was found by the Tribunal to be " undermining behaviour ", sending her an email in November 2004 which the Tribunal found to have an " unfortunate tone ", and holding her responsible for a high level of turnover of staff within the legal department when, in the view of the Tribunal, he shared at least equal blame with her for that fact. v) the Appellant company and Mr Tonkin were found liable in respect of Mr Tonkin's excluding the Claimant from membership and attendance of Management Committee meetings and from team lunches, and not consulting her about a seating plan for the legal department. vi) the Appellant company and Mr Tonkin were found liable in respect of Mr Tonkin's inadequate dealing with her appraisal and bonus in June 2006, failing to acknowledge her achievements.[21]In respect of all the above matters, the Appellant company and Mr Tonkin were found liable for harassment, because the Tribunal concluded in paragraph 176 of its judgment that they amounted to " actions having the purpose or effect of violating [the Claimant's] dignity in creating an intimidating, hostile, degrading, humiliating or offensive environment ".[22]As to the balance of her claims: i) the Appellant company was found liable for direct discrimination in respect of the way in which it dealt with the Claimant's complaints, failing adequately to address her concerns. ii) the Appellant Company was found liable in respect of treating a Mr McLean more favourably in relation to flexible working arrangements. iii) the Appellant Company and Mr Cole were found liable in respect of her complaints about Mr Tonkin not being taken sufficiently seriously by Mr Cole in July 2006. iv) the Appellant company and Mr Cole were found liable in respect of direct discrimination by virtue of the discussions in August 2006 when Mr Cole raised the option of the Claimant's leaving: the Tribunal concluded, in paragraph 171 of the Main Judgment, that " we are satisfied [the Claimant] did not wish to leave the company ". v) the Appellant company and Mr Cole were found liable for sex discrimination in respect of the proposals referred to in paragraph 8 above. The Tribunal concluded, in paragraph 171 of the Main Judgment, that the Claimant " had expected a proposal by which she could continue to work at the Company, but the proposal of 28 September 2006 set out an option either to amend her contract adversely by accepting a statement of terms which she maintains breached her contract of employment or to leave the Company with a severance package ". vi) the Appellant and Mr Cole were found liable in respect of direct sex discrimination, and harassment in the terms set out in paragraph 21 above, by virtue of Mr Cole trying to insist on a meeting with the Claimant at her home on 29 September 2006, despite her cancelling it.[23]In circumstances to which we shall make further reference below, the Tribunal concluded that the Claimant suffered (paragraph 232 of the Main Judgment) – and, it seems, as a result of the incidents which they had found had occurred at work (paragraph 231) - from Adjustment Disorder: and that " it had had and did have a substantial adverse effect on her memory or ability to concentrate, learn or understand ", such that the Tribunal concluded, in paragraph 234, that the Claimant was disabled within the meaning of the DDA .[24]In a covering letter to her grievance dated 5 October 2006, as repeated in her solicitor's letter dated 9 November 2006, the Claimant concluded that she had been made to feel that her " career is indeed finished ". In a Without Prejudice Save as to Costs letter dated 24 November 2006 from her solicitor, which, after an originally contested application was made by the Appellant to the Regional Chairman in the lead-up to the Review Hearing, was subsequently agreed to be put before the Tribunal, the Claimant's solicitor proposed, on her behalf, that the Appellant:
"compensate her fully for the damage which has been done to her previously stellar career, recognising that she will struggle to replicate the role that she has had at F & C due both to the fact that there are few jobs at her level and the damage [sic] the way she has been treated has affected her confidence and self esteem."
[25]In a further such Without Prejudice letter dated 15 January 2007, the Claimant's solicitors enclosed settlement proposals - in which it was said that her claim had been discounted by 20 per cent in order to achieve settlement - based upon a lifetime loss (subject to the possibility of a mitigation, by way of an " undemanding and/or part time job ", totalling £75,000 per annum), constituting a claim, after such discount, of £3,500,000. We are told that in the Remedies hearing presently fixed, subject to the outcome of this appeal and the appeal pending in the Court of Appeal, for February 2009, her claim is quantified at nearly £19,000,000. The Review Appeal[26]The fresh evidence upon which reliance was placed for the purposes of the Appellant's Review application arose as a result of preparation by the parties for the Remedies hearing ordered pursuant to the Main Judgment. The origin was a reference in the expert's report from a Mr Carter, instructed by the Claimant to evidence her substantial claim for financial loss. Under a paragraph heading " Consideration of Ms Switalski's career opportunity and earnings were it not for the sex discrimination, harassment and victimisation the Employment Tribunal have found occurred ", there was included the following paragraph:
"26. Interestingly, Ms Switalski had been headhunted, shortly after the harassment and victimisation started, by Royal London for the post of Legal Director/Company Secretary. Indeed, although her failing health made it impossible to take up this position she recalls that they kept the post open to her for some considerable time."
[27]As a result of investigations carried out by the Appellant, which culminated in an order for Third Party disclosure made interlocutorily at the instance of the Appellant by the Tribunal against the Royal London Group on 8 May 2008, it was revealed that this paragraph was materially misleading. In fact: i) the Claimant was offered the job by the Royal London Group as Group Legal Director and accepted it. ii) This was not " shortly after the harassment and victimisation started " i.e. in 2004/2005, but in September-November 2006.[28]The facts as revealed show what appears to be a startlingly different picture of the Claimant during the period when, on her account as accepted by the Tribunal, she was, and was becoming ever more, affected by severe and troublesome mental disability and she had represented her career to be " finished ": i) She was shortlisted by Royal London on 31 July 2006 for the post (then stated as commencing by 1 April 2007), and was approached for interview while she was still on holiday in India. She was interviewed on her return on 5 September 2006. The executive search consultant, Ms Rayner, notified Mr Hume of Royal London by email of 1 September 2006 that the Claimant would keep to her original appointment for 5 September:
"There is a slight chance, though, that she may have to rearrange. The reason is that she was in India for the summer and was bitten by an insect. Unfortunately the bite turned nasty and she developed blood poisoning. Since she has been back in the UK she has received treatment for the blood poisoning and has also had to undergo a series of surgical procedures on her leg … Jill is made of strong stuff. Although she is in the wars at the moment, I am sure she will soon be back to normal." ii) The result of that interview was that she was among the three preferred candidates who were to come back for further interviews. This was at a time when the Tribunal considered itself (paragraph 171) to be satisfied that the Claimant did not wish to leave the Appellant company. By email dated 22 September, the next interview was fixed for 4 October at the Royal London offices. This was at the time when the Tribunal found that it was both to her detriment and to her discomfiture (paragraph 8 above) that Mr Cole was seeking to press for a meeting, which the Appellant understood due to her health would have to take place at her home, to discuss her grievances (conduct which, as appears from paragraph 22(xii) above, was found by the Tribunal to be both direct sex discrimination and harassment). She was asked back for a further interview, and Ms Rayner told Royal London that the meeting would have to be at 8 am on Monday 23 October, because she would need to leave by 10.30am. This was plainly because she had to be back at her own home in the afternoon for the grievance meeting that Mr Johns of the Appellant had scheduled for her convenience at home (see paragraph 9 above), because of her state of health, her inability to cope because of stress. In the event, Ms Rayner than informed Mr Hume that the Claimant was " away the week of 23 October and can't change her arrangements ", and the Claimant attended on 1 November 2006. The offer, of considerably better terms that she was earning at the Appellant, was made on that day, and there is then a message from the Appellant to Ms Rayner, in which she records her thoughts, which includes the following passage: "
Let me have a think. My concern is it's no [different from] what I do at the moment. I have very broad experience and don't just want the lawyer role which seems to fit with Royal thinking, but the pay is for a straight head of legal type role. I want a bigger role or there is no point in moving …Base will be the same as F & C at £150k. I was hoping for nearer £200k plus 50% bonus … I may be able to manoeuvre with F & C as I really think they need someone less senior than me so I could try to get them to think about redundancy. I have looked at a GE role with a base of £250k with a 50% bonus … and I mentioned this role to you … I would not expect Royal to even think about £250k base but I would need time to limit my loss and [if] F & C know I am resigning for a new post I will never get a good lever position so would lose my ltips [sic]. If we can agree a package, I will work towards a start on 1 April and will work to minimise my losses at F & C." iii) By email dated 8 November 2006, Mr Hume notified his colleagues that the Claimant had accepted, in the following terms:
"Sonya Rayner rang this morning to say that Gill will accept the deal we have proposed, but does not want a formal offer letter at this stage, as she wants to negotiate her departure from F & C in a way that ensures she gets circa £250k in shares and bonus. She has suggested a joining date of 16 April 2007 … I will see if I can make it earlier." iv) The job thus having been accepted, a meeting was arranged between the Claimant and the man she was to replace, Mr Murray Ross. The meeting was arranged between the Claimant and Mr Ross for 28 November, and he sent an enthusiastic email to Mr Hume, copied to others, that afternoon: "
I have just spent nearly two hours with Gill. You may perhaps welcome some impressions. Huge energy and drive Must directly relevant experience Very commercial – a good business person Hands on – not frightened of hard work Used to managing a big legal team, some of whom are on different sites Has been an inhouse lawyer/Head of Legal for long enough that most things will have crossed her desk at some time We talked (at considerable length) generally about inhouse law – we seem to sing very much from the same hymn sheet and (for what it's worth) got on well together She said all the right things about joining Royal London and starting on 16 April – she has liked the people she has met and the atmosphere As with most people, her strengths are her weaknesses; She is clearly quite well know and could at any time (before or after February) run into someone she knows who just happens to be looking for a Legal Director and who will pay at FTSE 100 rates Once she has knocked everything into shape here, she will probably need a stream of interesting work to keep her stimulated She is likely to have firm views on important issues as they arise, that I am sure she will express diplomatically, but is unlikely quietly to acquiesce in something in which she strongly disagrees. "[29]29 November was an important day. First of all it was the day on which there was supposed to have been the disciplinary hearing, referred to in paragraph 12 above, of which the Claimant's solicitors sought and obtained a postponement. It was also the day when, having had this very successful meeting with Mr Ross in the morning, she attended a consultation with a consultant psychiatrist Dr Soutzos in the afternoon. A copy of his report was subsequently served and relied upon by the Claimant in the proceedings. She did not tell Dr Soutzos that she had applied and been accepted for a demanding new job, nor that she had been for a two-hour meeting with the prospective new employers that very morning. The account she gave included statements as to a " severe physical illness where she almost died " (a reference to her experience in India) and that:
"3. She avoids triggers of recollection and has difficulty in even looking at the scars on her leg and cannot deal with her legal case against her employers. This makes it very difficult for her to work with her solicitor and give effective instructions. She even hides her phone so that no one can ring her … 5. She is generally distressed with reduced functioning [and] has become increasingly withdrawn."
[30]This led to his diagnosis of Post-Traumatic Stress Disorder. She also reported that:
"She had difficulty giving close attention to detail and making careless mistakes: often has difficulty sustaining attention in activities: often does not seem to listen when spoken to …"
[31]This supported his further diagnosis of Attention Deficit Hyperactivity Disorder.[32]She sought another meeting with Mr Ross for 16 or 17 January, but, before that took place, she contacted Ms Rayner, indicating that she had been recalled to a mobile mammogram centre and that she was not well: Ms Rayner so notified Mr Hume, who wished the Claimant a speedy recovery from " whatever the problem is ", indicating that they were " a little nervous … and would be grateful if you would keep us in touch with developments. I also assume her negotiations with F & C are concluding successfully ". As a result of a subsequent conversation between the Appellant and Ms Rayner, Ms Rayner notified Mr Hume that the Appellant had been diagnosed with breast cancer, with a very poor prognosis, such that she had therefore decided to withdraw her candidacy. This arose from a conversation between the Appellant and Ms Rayner. In evidence given at the hearing of the application for Review, the Claimant stated that she did not say she had breast cancer, but accepted that she may well have left that impression with Ms Rayner, without correcting it, while Ms Rayner is clear in her recollection that the Appellant actually mentioned the need for palliative care. Fortunately the Claimant did not have cancer (having had positive clearance not long before).[33]That was one, important, strand of fresh evidence upon which the Appellant relied before the Employment Tribunal. In addition to the evidence itself, it had an important impact upon the expert evidence. At the November hearing in which, as set out above, the Tribunal reached a conclusion that the Claimant was suffering from a disability within the DDA, two expert witnesses were called, Professor Hirsch for the Claimant and Professor Wessely for the Appellant. After their initial separate reports, they put before the Tribunal a joint expert report, dated 29 August 2007, which recorded their agreement that the Claimant did not have bipolar disorder, attention deficit disorder or post traumatic stress disorder. They agreed that she fulfilled the criteria for an Adjustment Disorder, but Professor Wessely put a very substantial caveat on his agreement:
"Professor Wessely is less confident of the diagnosis of Adjustment Disorder but would be more convinced if further evidence is forthcoming from other quarters … On the basis of Mr & Mrs Switalski's account, Professor Hirsch thinks that she suffers serious symptoms which rule out the possibility that she could be working at an employable level since August 2006, almost a year. Professor Wessely is less certain, and would like to see more evidence about Mrs Switalski's functioning during that period, especially as regards her business activities."
[34]Neither of them of course knew about her business activity so far as it concerned her application for and acceptance of the job with Royal London. Fresh psychiatric evidence was thus obtained from Professor Wessely by the Appellant in the light of the discoveries referred to above, which it put forward in support of its application for Review. In his further Report dated 10 June 2008, Professor Wessely records, at paragraph 2.3, the account that the Claimant had given to Professor Hirsch, passed on to him, that " my career has been destroyed and my health has been seriously damaged ". He continues:
"2.4. What neither of us knew was a counter-history happening at the same time."
[35]He recounted the conclusions which he reached from the events which we have summarised above. He continued, by reference to the events of 28 November:
"2.15. I cannot think of any major mental disorder that is compatible with what is recorded that day. I cannot think of any major mental disorder in which a person could sustain a two-hour discussion, that is intended specifically to test out her skills, background, knowledge and commitment and emerge as she did. Her statements about her concentration, memory and so on are incompatible with handling and succeeding in a prolonged detailed discussion about what I assume is a very technical part of the law … 2.18. There is also a second and in my opinion crucial point. Mrs Switalski did not tell her psychiatrist, to whom she had apparently been referred by her GP as a matter of urgency, anything about either the morning's interview nor the background. A normal patient who was keen only to receive help would have mentioned this … any psychiatrist would say this was crucial information to assist them in coming to a diagnosis and formulating treatment. 2.20. … She told me … and I … wrote, as did Professor Hirsch, that she had been a high performing and effective City lawyer … The point that was being conveyed to both of us is contained in the words 'had been' … This is different to what would have been the implication if she had revealed her involvement with Royal London, and would have contradicted the image of a person unable to function because of the misdeeds of F & C. 2.21. Indeed, it would have confirmed what I was already suspecting – that her mental distress was situational and arose in response to a conflict with her employer … Such distress is predictable, but not a 'mental impairment' or disorder. … 6.1 In both my reports I indicated my frustration with my access to the kind of records that I would normally expect to receive in a PI case. I indicated my disquiet, and also said that my opinion on Mrs Switalski's mental state was provisional, and that should evidence come to light that indicated that she was functioning at a higher level than she was telling me (and indeed all the doctors in the case), I would have cause to revise my opinion. 6.2. I think that this new evidence does indeed tip the balance. I do not believe that anyone with anything in the way of a significant mental disorder would be able to perform as Mrs Switalski was still able to do in the Autumn of 2006."
[36]The Appellant relied on a number of further matters which arose from the Carter Report: i) Paragraph 30 of the Carter Report recorded that the Claimant had been shortlisted for Legal Services Director for the Olympic Project ("LOCOG"), and made it through to the last two. In fact, on investigation, after an order for third party disclosure against LOCOG, it was discovered that she made a job application in May 2006, but did not make the shortlist. ii) In paragraph 56 Mr Carter recorded that the Claimant had told him that she was down to the last two for the role of Chief Operating Officer with J O Hambro in 2006. Again disclosure was made by J O Hambro Capital Management Ltd, pursuant to an order of the Employment Tribunal, and it was disclosed in May 2008 that she had applied for the Chief Operating Officer position in July 2006 and was interviewed, but was not taken forward to the next stage of the recruitment process. iii) These matters were relied on by the Appellant not only as indicating the making of false or misleading statements, but as being further evidence of the existence in mid-2006, taken together with the Royal London offer, of a determined " exit strategy ", when the evidence which she had given to the Tribunal, accepted by the Employment Tribunal (paragraphs 103, 173 of the Main Judgment) was that she had no wish to leave the Appellant company.[37]These were the matters upon which the Appellant relied in support of its application for Review prior to the hearing in June 2008. There were other matters which developed in the course of the hearing upon which the Appellant also relied: i) The Claimant accepted in cross-examination at the Review hearing that she was also applying for other jobs in 2005, with GE and UBS. ii) The Claimant asserted at the hearing that she had told Dr Gill, the consultant instructed by UNUM, the Health Insurer referred to in paragraph 15 above, about the Royal London job. That led to an order for production of UNUM's report. The Claimant had obtained a copy of the UNUM Report earlier, pursuant to a Data Protection Act request, and she now produced to the Appellant's solicitors what they were led to believe was a complete copy. There was no mention of Royal London in that Report. The Appellant then applied direct to UNUM for a copy of the Report, and found that the Claimant had in fact supplied them with an incomplete copy. The Claimant accepts that she had redacted the copy she supplied (involving apparently also the redaction of the pagination, which would otherwise have shown that it was only part of the Report). Although the further information (not including any mention of Royal London) was about her activities on the Council during her certificated sick period, most of which would or could have been known to the Appellant, the Appellant relied before the Tribunal upon what it asserted to be effectively an attempt to dissemble, consistent with what had occurred in November 2006, referred to in paragraph 28(iii) above, when she had asked Royal London not to put the job offer in writing. In addition there was produced, not previously available to the Appellant, a further file note from Dr Gill dated June 2007, which was very critical of the Claimant, and of what he called her selective account to him.[38]The Claimant applied for Review under Rule 34(3)(d) and (e), set out in paragraph 3 above, on 27 May 2008. The Claimant submitted to the Tribunal that the application should be dismissed without a hearing, but the Tribunal decided to hold a hearing in order to " determine the application for Review, and, if granted, the Review itself " (paragraph 4 of the Review Judgment). It was, as described in paragraph 2 above, heard at the same time as the Claimant's applications in the Fourth Case.[39]The Tribunal's judgment, under the heading " The Material Facts ", recorded the acceptance by the Claimant of the Royal London's offer, that the Claimant asked that it be not put in writing and that it was a better package than she had at the Appellant company: the events of the morning and afternoon of 28 November: and the fact that the Claimant did believe that Ms Rayner had come to the " breast cancer conclusion ", and did not disabuse her. It does not refer to the Claimant's discussion of her strategy for her obtaining substantial sums from the Appellant, recited in paragraph 28(ii) above (nor the without prejudice letters, which would seem to have been an implementation of that strategy). The Tribunal makes reference to the fact that the Claimant was interviewed by LOCOG in June 2006, and by J O Hambro in August 2006, and was not shortlisted, but makes no reference to the context of those matters, as set out in paragraph 36(i) to (iii) above.[40]The Tribunal then addressed the law as to the application for a Review, correctly setting out, so far as Rule 34(3)(d) is concerned, the applicability of Ladd v Marshall , and in relation to Rule 34(3)(e) citing a passage from Phillips J's judgment in Flint v Eastern Electricity Board . The rest of the Tribunal's judgment is then under the heading " The Application for Review ", and in paragraphs 39 to 41 disposes of the matter of the necessary extension of time in favour of the Appellant. Between paragraphs 42 and 50, the Tribunal addresses the primary basis of the application for Review under Rule 34(3)(d). There is a reference in paragraph 48 of the judgment to the applications to LOCOG and J O Hambro, which are said to be " not relevant to the situation later in 2006 ", because they " relate to events in June 2006 and late July 2006 ": this obviously does not begin to address the point in paragraph 36 above. But, with that exception, the whole of the Tribunal's consideration between paragraphs 42 and 50 relates to the first limb of Ladd v Marshall , namely whether the evidence could not have been obtained with reasonable diligence for use at the trial. This appears to relate to two matters: i) The Claimant's meeting with recruiters in 2005, recorded in paragraphs 46 and 47 of the Tribunal's judgment. ii) Paragraph 103 of the first report of Dr Gill of UNUM, referred to in paragraph 18 above.[41]With regard to the meeting with recruiters, the Tribunal stated as follows:
"46. The Respondents suggest that Ms Switalski deliberately concealed the job offer from Royal London. The evidence before the Tribunal at the Liability Hearing in the first three cases was that Ms Switalski met with recruiters in or about April 2005 … In cross examination on 21 November 2007, Ms Switalski gave evidence about her meetings with Mr Glass in 2005. She told us that at that time she was not contemplating an exit strategy. 47. The Tribunal also heard from Ms Switalski in cross- examination on 23 November 2007 that her meeting with Charles Glass and Stephen Rodney, senior recruiters, related to discussion of private equity firms looking at law firms. That evidence did not relate to any discussion of Ms Switalski's personal position. It was not suggested to Ms Switalski in cross-examination that she had an exit strategy in November 2006. Ms Switalski was not asked if she had applied for other jobs."
It may be that this is a mistaken reference by the Tribunal to 2005, and that 2006 is intended to be referred to, as per paragraph 88 of the Main Judgment, in which it was simply recorded as a finding by the Tribunal that:
"On 18 July 2006 Ms Switalski met with a number of legal recruiters. She had a meeting with Charles Glass and Stephen Rodney to talk about private equity firms looking at law firms."
[42]As for paragraph 103 of the Gill first report, this reads:
"… Mrs Switalski said that she has turned down other job offers because of her perceived health problems."
The Tribunal says as follows, in relation to this:
"47. Ms Switalski was not asked if she had applied for other jobs. Indeed Ms Switalski was not referred to the paragraph of Dr Gill's report … No explanation was sought of her in relation to the statement that she had turned down other job offers. … 49. Miss Carrs-Frisk argues that Ms Switalski did not mention to Dr Soutzos, whom she saw for the first time on 28 November 2006, that she had met Mr Ross of Royal London earlier that day. It would have been open to Miss Carrs-Frisk to cross- examine Ms Switalski about the reference in Dr Gill's report [this is presumably a repeated reference to the possibility of cross-examination at the November hearing] and to use that to investigate whether there had been any other job applications and offers. This was not done. Had it been, the evidence might have been adduced at the Liability Hearing."
[43]The Tribunal thus concluded that leading Counsel for the Appellant could and should have cross-examined and challenged the Claimant, a solicitor, when she said in evidence on the one hand that her meeting with recruiters had been for the purpose of discussion with private equity firms looking at law firms, and on the other that she had turned down job offers, to see whether in fact the Claimant, who was asserting that she had no exit strategy, had actually accepted another job offer. The Tribunal distinguished House v Haughton Brothers (Worcester) [1967] 1 WLR 148 CA, a case in which subsequent evidence was discovered which had not been available at the earlier hearing, on the basis that " in the present case Ms Switalski was not asked ".[44]The Tribunal's conclusion is then to refuse the application for Review on grounds of fresh evidence under Rule 34(3)(d), because the first limb of Ladd v Marshall was not complied with:
"50. Having analysed the situation, the Tribunal is not satisfied that the evidence concerning Royal London could not have been reasonably known of or foreseen at the time of the Liability Hearing had the Respondents cross-examined Ms Switalski on Dr Gill's report and asked her whether she had applied for other jobs or received other job offers. None of these questions were put. In these circumstances it is the unanimous judgment of the Tribunal that the application for review on the grounds at Rule 34(3)(d) must fail."
[45]It is our judgment that this is a manifest error of law: i) The first and most obvious point is that the fresh evidence is not just the simple fact that the Claimant had applied for and accepted a job offer from Royal London, although this of course is relevant in the light of her denial at the November hearing that she had had an exit strategy. The concomitant factors are strong, if not overwhelming: a) The fact that the Claimant asked that such job offer be not put in writing. b) The fact that the Claimant was expressly involved in a strategy to extract as much money as possible from the Appellant before making such job offer known. This is not per se necessarily objectionable, but it further evidences a state of mind which appears, at the very least, arguably inconsistent with a mental disorder. c) The stark contrast, not only between the picture drawn by Mr Ross in the morning of 28 November and by Dr Soutzos, on the basis of what he was (inadequately) told, in the afternoon of 28 November, but also the equally stark contrast between the picture drawn from the Royal London episode, as above, and the assertions in the solicitors' letters, including the without prejudice letters, referred to in paragraph 23 to 25 above ( none of which, although argued before the Tribunal, are mentioned in its judgment), of destruction of the Claimant's career, and a lifetime loss, subject only to the possibility of some undemanding mitigation. ii) We conclude that the evidence was not available, and that it does not become reasonably available by virtue of the fact that Ms Carrs-Frisk QC did not cross-examine, in the circumstances and in the light of the evidence by the Claimant described in paragraph 43 above; and when the evidence about Royal London had been concealed, as it would seem the Claimant intended by her request that the job offer not be recorded. iii) The Tribunal in any event makes a leap, not least in those circumstances, in concluding that if some, fishing, questions had been asked of the Claimant by M Carrs-Frisk arising out of the statement in paragraph 103 of Dr Gill's report, the true position would necessarily have been disclosed. It is noteworthy that when questions were first asked of the Claimant's solicitors, after receipt of the passage in the Carter Report referred to in paragraph 26 above, they not only resisted disclosure but made what were, at the very least, inadequate responses on her behalf: a) In their letter of 14 February 2008, they allowed to be perpetuated the implicit suggestion, referred to in paragraph 27(ii) above, that the " other employment offers " occurred in 2005:
"… evidence of the detail relating to the Claimant's other employment offers in the past [is] irrelevant. Her position now, as we keep repeating, is very different [from] what it was in 2005 ." b) In their further response of 23 April 2008, more information was given but they did not disclose that he job offer had been accepted : "
At the time the job offer was made by Royal London (in October 2006) our Client was too ill to take up the offer ." iv) In any event, there was a straightforward piece of fresh evidence, plainly not available at the November hearing, being the new report by Professor Wessely, referred to in paragraphs 34 and 35 above, resiling from his conditional agreement with Professor Hirsch, recorded in the joint report, set out at paragraph 33 above.[46]We are satisfied that the Tribunal misapplied the law, and/or reached a perverse conclusion, in relation to its decision to dismiss the application for Review under Rule 34(3)(d). The first limb of Ladd v Marshall was plainly satisfied, and the Tribunal ought to have, but seemingly did not, turn to consider the second limb.[47]We say seemingly did not, because in the next paragraph, 51, the Tribunal turns to consider the application for Review under Rule 34(3)(e) on the grounds of the interests of justice. As will be seen, there is some consideration, in the context of a purported addressing of the evidence of Professor Wessely, to which we shall turn below, of the materiality at least of that evidence. The Ladd v Marshall second limb is of course that " the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive ": this was set out in paragraph 36.2 of the Judgment.

(e) , to which we will return, the Tribunal said:

"57. The evidence before the Tribunal in relation to the Royal London matter and Ms Switalski's interview with Dr Soutzos was not available when we made the judgment, and the Tribunal must consider whether, had that information been available, the judgment would have been different."
We interpose to say that this appears to be wholly inconsistent with its own conclusion already reached in its paragraph 50, set out in paragraph 44 above. The Tribunal continues:
"The Tribunal has re-read its judgment. None of the evidence put forward at the Review hearing would have made any difference to the Tribunal's conclusions. We are not satisfied that the evidence we have heard of Ms Switalski's behaviour would undermine our finding that she was disabled at the relevant time in relation to the first, second and third cases."
[48]This is plainly not a correct application of the Ladd v Marshall second limb. If what the Tribunal was meaning to make was a contingent finding that if it had been wrong to conclude that the evidence was not available vis-à-vis the first limb, then, in any event, the second limb was not fulfilled, then they have plainly used the wrong test in law. In any event, they are only addressing one of the issues in the case (albeit an important one), namely whether the Claimant was disabled.[49]Ms McKie of Counsel, on behalf of the Claimant, has obviously not been able to justify this paragraph in any way as a correct approach in law to an application for Review, but has sought to suggest that it may be that, at this stage, the Tribunal had, or was deeming itself to have, granted an application for Review and was now addressing the issue of whether to grant the Review itself. We shall return below to this suggestion, but one thing is entirely clear, and that is that in terms the Tribunal had dismissed the application for Review under Rule 34(3)(e).[50]We have little difficulty in concluding that the evidence satisfied the second limb in Ladd v Marshall (and was apparently credible) such that the application for Review should have been granted under Rule 34(3)(d) and not refused. The evidence plainly went to a number of issues, not only to the question of disablement (paragraph 23 above), and the express findings in paragraphs 103 and 171 of the Main Judgment that the Claimant did not want to leave the Appellant, but also, by way of one example, already highlighted above, so as to cast doubt upon the finding of discrimination and harassment referred to in paragraph 22(xii) above, by reference to the facts in paragraph 8 above, as contrasted with the counter- facts referred to in paragraph 28(ii) above.[51]But in addition it is apparent that the Claimant's credibility is put heavily in issue by the facts that we have described above. Such submission by Ms Carrs-Frisk QC was summarily dismissed by the Tribunal, in a way which plainly does not comply with the requirements of Meek v City of Birmingham District Council [1987] IRLR 250 CA, in a paragraph which is simply tagged on at the end of the judgment:
"62. Ms Carrs-Frisk has argued that the new evidence goes to Ms Switalski's credibility and that undermines all of her earlier evidence and that, therefore, the judgment should be set aside. We reject that contention. The issues of credibility and the Royal London job offer go to the issue of remedy and will be considered in that context in due course."
Much, if not all, of the Claimant's case had depended on her credibility, as Judge Peter Clark had noted on the appeal (referred to in paragraph 1 above), at paragraph 7 of the EAT's judgment:
" Both sides' version of events after October 2004 could not be right ."
Though the Royal London job episode does go to the issue of remedy, it is not limited to it, as set out in paragraph 50 above: but in any event it is manifest that credibility on one issue must inevitably spill over into findings on other issues (see Lifely v Lifely [2008] EWCA Civ 904 (unreported) at paragraph 43 per Ward LJ).[52]Although we are satisfied that the application under Rule 34(3)(d) ought to have been granted, and that we would substitute our own decision that the application for Review on that ground should be granted, for completeness we turn to the paragraphs in which the Tribunal dealt with the alternative application for Review under Rule 34(3)(e), from paragraphs 51 to 60.[53]The first point to make is that, although the Tribunal referred to and quoted from Flint , as discussed above, it failed to consider that if, for some technical reason, referable to an alleged failure to cross-examine by Ms Carrs-Frisk, the evidence did not, in the view of the Tribunal, strictly fall within Rule 34(3)(d), Phillips J expressly postulates that that same evidence may yet be permissible under Rule 34(3)(e), where " although the evidence could be foreseen, or indeed reasonably or actually known, it was for some reason or other not available ". Had the Tribunal considered the law in that regard, as they ought to have done, they would and should have allowed the Review on that basis, even if otherwise justified in the refusing of it on the strict Ladd v Marshall basis.[54]However, the Tribunal was invited to consider the interests of justice ground upon the basis that Ms Carrs-Frisk submitted, if necessary, that there was what Phillips J referred to as " some special additional circumstance which leads to the conclusion that justice does require a Review ". The Tribunal summarises this as follows:
"52. … Ms Carrs-Frisk argues that the reason the Respondent did not obtain the information at the time of the hearing was that Ms Switalski was determined to keep it secret. They also argue that she was willing to give evidence intended to mislead or which had the effect of being misleading. … 53. We have to consider whether Ms Switalski was determined to keep the Royal London material secret or give evidence intended to mislead, or having the effect of being misleading."
[55]The Tribunal, having posed that question of itself, did not answer it. It addressed some of the evidence, though notably not the fact that the Claimant had deliberately caused the job offer not to be in writing in order not to rock the boat with her negotiation for substantial sums of compensation from the Appellant (nor the inadequate correspondence referred to in paragraph 45(ii) above). The Tribunal addresses the evidence of Professor Wessely, and in our judgment impermissibly reaches apparent conclusions about that evidence, rather than dealing with it as, on an application for Review, the Tribunal should have done, namely considering its materiality and/or arguability. In any event, it is clear to us, and Ms McKie does not argue to the contrary, that the Tribunal has misrecorded or misunderstood Professor Wessely's evidence.[56]The Tribunal was apparently seeking to reconcile the evidence of the two psychiatrists, and the seemingly stark conflict between, on the one hand, what the Claimant represented about herself to the Appellant, to Dr Soutzos, through her solicitors in open and without prejudice correspondence, and at the November hearing to the Tribunal, and, on the other, the picture which can apparently be derived from the Royal London correspondence. Such reconciliation was attempted by reference to a suggestion, raised by Professor Hirsch, of the Claimant having a split personality.[57]The Tribunal records Professor Wessely, in paragraph 55 of its judgment, as follows:
"55. Professor Wessely told the Tribunal that dissociation, which he describes as a mental defence mechanism, which had an altered state of consciousness, was slightly controversial. His view was that it was extremely unlikely that Ms Switalski was dissociated between the meeting with Mr Ross and the meeting with Dr Soutzos. Professor Wessely said that the idea of the multiple personality had been discredited."
It seemed to us on any basis that the words " slightly controversial " were odd, but, with the agreement of both parties, we have looked at the parties' notes of evidence. The Appellant solicitor's notes of evidence record in almost identical terms the whole of the second sentence of paragraph 55. However, with regard to the first sentence, they record Professor Wessely's answer to a question about a concept of disassociation as " controversial if it exists at all " – an answer capable of summary as "highly controversial" but not as " slightly controversial ".[58]In any event, if the Tribunal was to descend into this kind of rejection of the evidence of an eminent expert, it is going far outside the realm of an application for Review.[59]That apart, however, the Tribunal never answered its own question, posed in paragraph 53 of its judgment, and therefore never resolved whether there was the special circumstance , which Ms Carrs-Frisk submitted would justify the grant of an application for Review under Rule 34(3)(e), even though the application under Rule 34(3)(d) had failed. Had the Tribunal sought to answer its question, it could and would have referred to the matters set out in paragraph 45(i) and (iii) above, and to the Claimant's failure to disclose her true state of mind, intentions and strategy to Dr Soutzos, seemingly to Dr Gill and to the two experts; quite apart from the circumstances of the UNUM report, referred to in paragraph 37(ii) above, to which the Tribunal does make some reference in paragraph 59 of its judgment. But it did not.[60]The conclusion it reaches at paragraph 60 was simply:
"Having reviewed the evidence, it is the unanimous judgment of the Tribunal that it is in not the interests of justice (sic) to grant a Review and, therefore, the application for Review is refused and the judgment is confirmed."
[61]Against this background we turn to the suggestion made by Ms McKie that the Tribunal was in fact granting an application for Review but refusing the Review. We have already indicated that, in clear terms, the application for Review on Ground (d) was refused. As for Ground (e), the question the Tribunal posed itself in paragraph 53 is, as we have said, never answered; but in paragraphs 54 to 56 there is carried out what we have indicated is an impermissible exercise in relation to Professor Wessely. Then comes the conclusion (apparently applying the wrong test, at any rate for Ladd v Marshall purposes) in paragraph 57, which we have quoted at paragraph 47 above.[62]We are satisfied that, if the Tribunal had intended to grant the application on either ground, it would have said so, and then turned to deal in clear and full terms with the Review itself, if such they intended. We note that Ms McKie's own final submissions before the Tribunal ended with the submission that the Tribunal should refuse the application for Review.[63]If the Tribunal were really to grant the application and then proceed to deal with and refuse the Review, they would have to have done a great deal more in order to be Meek- compliant than paragraph 60, coupled with the supernumerary paragraph 62, referred to in paragraph 51 above. If the Tribunal had decided that there was indeed fresh evidence, and that it was material, then it would need to have applied that evidence to all its relevant findings, to see whether any of them were affected. Because of the wholly flawed approach which the Tribunal, in our judgment, adopted, it did not begin to set out on that exercise. It refused the application for Review, and should not have done so.[64]We are satisfied that the decision in the Review application judgment should be quashed, and that we should substitute our own conclusion, being the only conclusion reasonably available to a tribunal properly directing itself, that the Appellant's application for a Review be allowed, and that a Review of the Tribunal's judgment on the First and Second Cases now take place, for which purpose there must be remission to the Employment Tribunal. We shall deal at the end of this judgment, after recording our conclusion on the Fourth Case appeal, with whether it is to be remission to the same or to a different Tribunal. The Fourth Case Appeal[65]As set out in paragraph 2 above, while commencing and bringing the First, Second and Third Cases the Claimant remained in the Appellant's employment, albeit on continuing sick leave, although, in the circumstances set out in paragraph 18 above, she ceased to receive her salary from the beginning of July. She wrote a letter of 7 September 2007 terminating her employment, on the basis that she was claiming constructive dismissal, with immediate effect. That resignation formed the basis of her Fourth Case, proceedings in which were issued on 5 December 2007. She claimed unfair constructive dismissal, sex discrimination and/or harassment pursuant to the SDA , disability discrimination, victimisation, pursuant to the SDA and/or the DDA and whistleblowing, by reference to s47B, and automatic unfair dismissal on such ground, by reference to s103A, of the Employment Rights Act 1996 . The Tribunal held that the Claimant was constructively dismissed and was unfairly dismissed by reason of her sex, and that her claims of direct sex discrimination, harassment and victimisation under the SDA and the DDA all succeeded: it dismissed the claim of disability discrimination and the claims by reference to whistleblowing. There is no cross-appeal.[66]The Tribunal of course was the same Tribunal as had heard the First, Second and Third Cases, and given judgment in relation to them, and was simultaneously hearing the application for Review, discussed above. It did not hear afresh any of the evidence from the earlier cases, but took it into account, and it inevitably formed the backdrop for the Fourth Case.[67]As set out in paragraph 5 above, the Claimant's responsibilities at all times included a specific responsibility in respect to tendering for, and selecting, outside lawyers when work was to be allocated to them. The Tribunal made the following findings in paragraphs 14 and 15 of its judgment ("the Fourth Case Judgment):
"14. The Respondent has a company gifts, benefits and corporate hospitality policy which was updated in January 2005 … Under this policy, gifts or benefits offered or received by staff must be refused if the value or frequency is such as might be expected to induce the employee to act in a manner which could cause conflict with their duties to the Respondent's clients. Failure to declare a gift or benefit is a breach of the policy … Ms Switalski signed such a form in 2005 and 2006 … the Respondent also had a code of ethics which was updated in February 2005. Under the code of ethics, employees are required to avoid any conflicts of interest with clients or the firm and, if such conflict exists, to declare it. The code of ethics makes clear that deliberate breaches may result in the imposition of sanctions on the employee, including suspension or dismissal. 15. In late 2004, a legal protocol was introduced by the management committee of the Respondent, which stated that from 19 November 2004, all external legal work could only be engaged through the legal department."
[68]On 10 February 2005 the Claimant attended a Legal Business Awards Dinner, as a guest of an external firm of solicitors, Eversheds. She sat next to Paul Winter, whom the Tribunal found she did not know before. Mr Winter was the head of Eversheds' planning and environment team. At the dinner the Claimant approached Mr Winter about a planning problem which she had, in connection with a personal planning appeal, in which she had her own solicitors. Mr Winter formed the view that the best arguments were not being put forward on her behalf. At the time he did not intend the extent of involvement which Eversheds eventually took on. He thought that he would just be giving a quick view. In the event, he said, he felt compelled to continue with the work.[69]An expert report was presented to the Tribunal in respect of the work undertaken by Eversheds, which ultimately covered three lever arch files, and concluded that the value of the work done amounted to £24,148.80, which is a figure which was agreed, although the Tribunal concluded, in paragraph 17 of its judgment, that there would have been a further discount down to some £18,700 to reflect the fact that the work was used as a training exercise for an associate of Eversheds, who had recently joined the firm. Mr Winter gave evidence, as recorded by the Tribunal, that he felt that, if Eversheds could demonstrate a really good case for the Claimant, and did a good job, she would recommend them in relation to any other major sites. In the notes of evidence which have been agreed to be put before us he is recorded as saying: " she said "I can't promise anything" ". None of this was known to the Appellant or disclosed by either the Claimant or Eversheds at the time.[70]On 15 March 2005, the Claimant signed her personal declaration form in compliance with the gifts, benefits and corporate hospitality policy and the compliance manual.[71]In early 2005, a Mr Sweetland, who had previously been a director of F & C, was told by a fellow director of his new company, Friends Provident plc, that the Claimant may have been receiving free legal advice from Eversheds. In or about April 2005 Mr Sweetland informed Mr Tonkin of what he had heard. Mr Tonkin gave evidence that as he had no evidence that the Claimant was actually receiving free legal services from Eversheds, he decided that he would not tell her specifically about what had been reported to him, first because of the absence of evidence, and secondly because he had been her manager for less than four months, and there were, as he saw it, a number of quite difficult issues which he needed to address with her at a meeting then proposed from 19 April 2005, the previous meeting on 22 February already having been a difficult one. He said that he believed that if he accused her, on a basis that was unsupported by any evidence, it could damage their professional working relationship at an early stage. He decided not to raise it expressly, but to raise generally with her the potential introduction of a conflicts of interests protocol, giving a specific example of receipt of free personal conveyancing advice from one of F & C's legal service providers, which he saw as an opportunity for the Claimant to inform him that she was receiving free legal advice, if she were. The Claimant's own notes of the meeting of 9 April 2005 reflect this conversation.[72]The meeting of 19 April 2005 was briefly canvassed in the November hearing, in respect of the First, Second and Third Cases, and the Tribunal recorded in paragraph 160 of the Main Judgment, in relation to the hypothetical question about personal work, that:
"Mr Tonkin did not raise this directly with Ms Switalski and, when he did raise it, his question was opaque, such that Ms Switalski thought it related to her daughter who was working at Eversheds."
[73]Mr Tonkin's evidence was that, when he thus raised the question of a potential conflict of interest, by reference to the receipt of free legal advice as hypothesis, and the Claimant did not mention or disclose anything in that regard, in circumstances in which he was satisfied that, had there been such a situation, she would have told him about it, he concluded that the Claimant was not receiving free legal services from Eversheds, so did not revisit the issue, and did not give it any further thought.[74]Eversheds continued to provide substantial free services to the Claimant until the end of October 2005. On 17 May 2006, the Claimant signed a personal declaration form, confirming compliance with the Appellant's Code of Ethics.[75]In October 2006, there was the issue of the grievance inter alia against Mr Tonkin, referred to in paragraph 9 above. Included in a lengthy grievance document was a complaint that Mr Tonkin had singled out the Claimant's team for special scrutiny in relation to possible conflicts of interest. At that stage, when he read that complaint, Mr Tonkin recalled the 19 April 2005 meeting. His evidence was that, in order to rebut what he understood to be a claim against him and the Appellant of discrimination on grounds of sex, but not in order to reopen the issue of whether the Claimant had actually received free legal advice, he sought to explain why he had raised the issue of potential conflicts with her during the 19 April 2005 meeting. In his response to the grievance, he stated as follows:
"In April 2005, I received information that suggested that Gill was receiving and had previously received free legal work. I did not consider it appropriate to address this accusation with Gill. I wanted to give Gill the benefit of the doubt. However, I did feel I should put some conflict checks in place. I suggested to Gill that we should consider whether it was appropriate to introduce a conflict of interests declaration … Gill was resistant to the idea and, in the end, we did not as a company introduce this and I did not follow up on the matter further. As noted above, in my dealings with Gill, one of my motivations has been to ensure that her primary focus is on her full time job, not the external interests that I have been and am concerned about."
[76]During the disclosure exercise in March/April 2007, in respect of the First, Second and Third Cases, a number of emails were disclosed between the Claimant and Eversheds about a planning matter relating to her property development business, Churchgates Ltd. These were seen by Mr Cole, who gave evidence that he discussed the matter with the Appellant's solicitors: and he was advised by them that the work was done for Churchgates Ltd, that, in their view, providing free legal services to a corporate entity would be highly unusual, and that the nature and significant extent of Eversheds' involvement indicated to them that Churchgates Ltd must have paid for their services. Mr Cole gave evidence that he had no reason to question such advice, and that he did not personally review the disclosure files or the correspondence between the Claimant and Eversheds. No further steps were taken.[77]Statements were exchanged for the hearing for the First, Second and Third cases, which was then fixed for 10 September 2007, on 3 August 2007. On 21 August 2007 the Claimant's solicitors sent a letter to the Appellant's solicitors headed " Supplemental Evidence ". It enclosed, among other things, what was described as " the text of a draft letter from Paul Winter, a partner at Eversheds " to Mr Grisay, the Chief Executive Officer of the Appellant. This was in fact in the form of an email sent from the Claimant, and was not either signed by, or even apparently sent from, Mr Winter, save that it was in the form of a draft letter. It recorded that:
"Gill has asked me to write to you to confirm the basis on which I and my colleague Raj Gupta provided some assistance in relation to a personal planning matter some time last year. I confirm that our assistance was provided on the basis of friendship with Gill (who is also the mother of a colleague here at Eversheds), and not in any way from an ulterior commercial motive. … There was never at any stage either any expectation on our part … of any advancement in terms of work or instruction from F & C or any similar professional advantage. That question was never discussed or implied in any of our discussions with Gill on that matter. Any suggestion that may be made to the contrary is, I can assure you, completely mistaken."
[78]There is at that stage no suggestion of the quantum of the work. The reference is to the " basis of friendship ". Indeed, in her evidence to the Tribunal, the Claimant stated " Paul's help was simply an act of friendship ". As set out in paragraph 68 above, however, the fact was, as the Tribunal found in paragraph 16 of the Fourth Case Judgment, that the Claimant did not know Mr Winter, before sitting next to him at the dinner. It was also not ' some time last year ', but in 2005.[79]It was at this stage unclear whether the purpose of sending the draft document was by way of an indication that Mr Winter would be called as a witness, and the Appellant's solicitors wrote, on 30 August 2007, to the Claimant's solicitors, apparently after some further communication between them:
"You have since informed us that you will be calling as a witness Paul Winter, a Partner at Eversheds, who together with his colleague, Raj Gupta, provided these legal services free to Ms Switalski. There appears, therefore, to be no dispute that Eversheds provided free legal services to Ms Switalski."
[80]By letter of 4 September 2007, the Appellant's solicitors wrote to Eversheds, with a copy to the Claimant's solicitors, recording that the actual letter which it was suggested that Mr Winter had sent or was to send had not yet been received by Mr Grisay, but enclosing the 'draft' email, and continued as follows:
"If the contents of the enclosed text accurately reflect a communication from you, it appears that free legal services were indeed provided … Whatever its relevance in the litigation, this is a matter of concern to F & C …, regarding which full co-operation from Eversheds LLP is requested. We would be grateful for an immediate response from Eversheds LLP to the following questions: (1) Did you send the text enclosed to Ms Switalski? If so, when and for what purpose? Please provide the full correspondence. (2) Did you send the text enclosed to Mr Grisay? If so, when and how? (3) Are you appearing as a witness at the hearing for Ms Switalski? (4) How many hours did you and Mr Gupta respectively work on this matter? What were your respective billing rates at the time? (5) Over what period did you provide representation? …"
[81]The Winter letter, on Eversheds' notepaper, purportedly dated 17 August 2007, was then received by the Appellant's solicitors on 4 September, in almost identical form to the draft email, although still unsigned by Mr Winter. The Appellant's solicitors wrote a letter dated 7 September 2007 to the Claimant's solicitors, the material terms of which were as follows:
"We write further regarding the free legal services received by Ms Switalski from Eversheds LLP in 2005 and 2006, which you have brought to our attention since 21 August 2007. While the receipt of substantial legal services over a period of many months was known as a result of the disclosure exercise, the letter you provided from Mr Winter of Eversheds LLP was the first disclosure by Ms Switalski that these services were received without charge from a company supplier. We have provided Mr Winter's letter to Mr Grisay. Our client has made no assertion in the extant litigation of any causal connection with the supply to it of legal services by Eversheds LLP, but it is a matter of serious concern that this valuable benefit was not disclosed by Ms Switalski in accordance with company procedures, and the matter must be thoroughly investigated. As you are aware, we were under the impression from 21 August to 5 September 2007 that you intended to call Paul Winter of Eversheds as a witness in this matter. We only received your confirmation that this was not the case on 5 September 2007. We have spoken to Mr Winter, who informed us that he was not aware of the litigation until he received our letter (copied to you) dated 3 September 2007, and that he is seeking Ms Switalski's permission before responding to the reasonable questions we have posed regarding the total value of the benefit provided. F & C … reasonably expects the co-operation of Ms Switalski and Eversheds LLP in immediately providing necessary consents, clarifying these issues and answering all questions necessary to establish the value of the benefit provided. F & C … reserves all its rights with regard to this apparent breach of standard disclosure and conflict of interest policies applicable to all staff receiving such a benefit."
The letter then continues to deal with issues of witness orders.[82]It was in response to this letter, sent by the Appellant's solicitors to the Claimant's solicitors, that the Claimant sent to Mr Cole her letter of resignation, dated 7 September, which read simply as follows:
"I write to inform you that as of today's date I am claiming constructive dismissal with immediate effect. I will send this letter via my solicitors as I am not allowed to contact you direct. My solicitors will explain to your solicitors my reasons."
[83]The Tribunal records as follows in its Fourth Case Judgment:
"69. Ms Switalski told us that when the threat of further investigation arrived on 7 September 2007: "
It became clear that F & C was immune to proper judgment and that they would use any opportunity to put pressure on me regardless of, or even because of, the impact it would have on me and my health. F & C clearly had no compassion and absolutely no intention of having me back. There was a sense of 'corporate ownership' in the behaviour being meted out to me." Ms Switalski said that, with the threat of an investigation into an old issue being the final straw, she had [no] choice but to resign and claim constructive dismissal."[84]The Tribunal found: i) At paragraph 70 of the Fourth Case Judgment that the threat of the investigation contained in the 7 September letter was not a breach of the contract of employment because the Respondent was entitled to implement its own procedures. ii) At paragraph 102:
"In relation to the allegation made concerning Eversheds, at the time of the making of the allegation on 7 September 2007, the Respondent did not know the value of the free advice given. The Tribunal regards the obtaining of free advice in the sum of approximately £18,000 as grave, but must bear in mind that, at the time of tending the 7 September 2007, that information was not within the Respondent's domain."
[85]The hearing fixed for 10 September 2007 was in the event adjourned due to the difficulties of the Appellant's Counsel, and refixed for 19 November 2007. Meanwhile, by letter dated 7 November 2007, the Claimant raised a further grievance. The relevant aspect of that grievance was that " letters written by F & C's representatives from March 2007 to date regarding my health have been sceptical and unsupportive, causing a further deterioration in my health. " There were other complaints made, which, in its judgment in the Fourth Case, the Tribunal in due course dismissed.[86]The two letters which the Tribunal concluded constituted or evidenced (see paragraph 77 of its Fourth Case Judgment) an attitude towards the Claimant's health which amounted to a breach of the implied term of mutual trust and confidence were as follows: i) The Appellant's solicitor's letter dated 4 July 2007, which was in response to a letter of 3 July 2007 from the Claimant's solicitors, stating (inter alia):
"1. As you are already aware, our client underwent an operation to treat septicaemia on 5 or 6 August 2006, at which time she had to remain in hospital for a couple of days [in India]. Our client underwent further surgery seven days later. Although our client was in a wheelchair between the operations, she was able to go out and about and even undertake some sightseeing."
The 4 July letter from the Appellant's solicitors responded to that paragraph:
"1. Ms Switalski has asserted that she almost died as a result of life-threatening cellulitis/septicaemia/blood poisoning which developed on the first day of her holiday, 4 August 2006. We were therefore surprised by your statement that she was able to go out and about and even undertake some sightseeing in India. Please specify when it is said that Ms Switalski "almost died"." ii) The other letter is earlier; again it is in response to a letter from the Claimant's solicitors. The latter wrote on 29 January 2007 as follows: "
You should be aware that our client's medical condition is deteriorating. This is a direct result of the way in which your clients have been treating our client whilst she has been off sick. Our client has been diagnosed as having Bipolar II Disorder. Her psychiatrist has advised that anything that triggers recollection of the bullying in this case will worsen her mental state. The result of the diagnosis of Bipolar II Disorder is that our client will permanently be on medication for the rest of her life. This factor alone is extremely distressing to her, and she holds your clients entirely responsible for it. All her rights are reserved in this regard… … we are alarmed at the lack of care you and your clients are taking in ensuring matters are handled appropriately in all the circumstances." The Appellant's solicitors' response of 31 January was:
"The only medical evidence we have had regarding Ms Switalski's condition has been from her GP, and we know that he did not appear to be aware of her diagnosis of Biopolar II Disorder as of the date of this most recent certificate, 16 January 2007. Your letter of 29 January 2007 provided our first knowledge of any such diagnosis. You have mentioned a psychiatrist but have not identified such individual, proffered any opinion from him or her or informed us of the date of this diagnosis. You have not previously mentioned any diagnosis beyond reactive stress and depression (which you have said was responding to medication). Our client is concerned about Ms Switalski. It has appropriately processed sick pay, allowed her to reclaim pre-booked holiday during which she developed cellulitis, arranged for a grievance meeting at her home, solicited and abided by her wishes as to the level of involvement she was capable of while unable to come to the office, and has kept your client fully informed of her benefits. Your statement regarding "alarm" at the "lack of care" is misplaced, and unfair, particularly given that you have not provided us or our client with supporting medical evidence, or any information beyond the name of this condition. We must insist that you identify Ms Switalski's psychiatrist and provide us immediately with the medical opinion he or she has provided (which we presume must include a full patient history) in order that our client can make fully informed decisions as an employer. Our client will obviously need to be fully advised by a psychiatric specialist as to the implications of Ms Switalski's condition."
[87]We turn to deal with the Tribunal's finding of unfair constructive dismissal. We have already indicated, in paragraph 4 above, that there was no dispute about the relevant law. The Tribunal, in summary, reached the following conclusions: i) [The 7 September Letter ] In paragraph 70 of the Fourth Case Judgment, prior to making its relevant findings, but no doubt in anticipation of them, the Tribunal said:
"The Tribunal has already found that the claims of direct sex discrimination, harassment and victimisation in the First and/or Second Cases succeeded. These acts of discrimination of themselves amount to a repudiatory breach. The threat of further investigation on 7 September 2007 did amount to a final straw, in accordance with the guidance in GAB Robins … The threat of further disciplinary action is not of the same quality as the repudiatory breach arising from the discriminatory acts and acts of victimisation, but, taken in conjunction with them, it adds to that breach and the Tribunal is satisfied there was a repudiatory breach of Mrs Switalski's contract of employment." ii) [The Solicitors' Letters ] It said, with regard to the letters set out in paragraph 86 above, as to the Appellant's solicitors' letter dated 4 July 2007: "
In cross-examination, Mr Cole was not able to explain why this information [about the Indian illness] was sought eleven months after the illness in question " (paragraph 76 of the Judgment): and as to the Appellant's solicitors' letter dated 31 January 2007: " The Tribunal has received no explanation as to why this information [as to the identity of the Claimant's psychiatrist] was required and why the terms of the request were so autocratic and heavy handed " (paragraph 77). Accordingly the Tribunal concluded: "77. … Against this background, the Tribunal is satisfied that the Respondent's attitude towards Ms Switalski's health did amount to a breach of the implied term of mutual trust and confidence. 78. In these circumstances, by way of summary, the Tribunal conclude that the breaches in relation to what has been termed the Tribunal's findings, the conflict of interest and Ms Switalski's health do amount to repudiatory breaches …" iii) [The earlier breaches] In a passage which we have found somewhat difficult to understand (and we return to this further below) the Tribunal appears to have dealt separately with the issue of affirmation, which it appears to reject, independently of its conclusion that the letter of 7 September 2007 was a last straw . The Tribunal deals, in paragraph 80, with Ms Carrs-Frisk's submission that the resignation was 7½ months after the last act of discrimination, and that the Claimant had agreed in cross-examination that she had had ample time to resign before 7 September 2007 and had chosen not to. The Tribunal makes a brief reference to a contention by Ms Carrs-Frisk that the Claimant had affirmed the contract by reference to her having kept the contract alive for the purposes of the issue of health insurance, but does not explain why that is not evidence of affirmation.[88]In submissions before us, Ms McKie was driven to accept that the case stands or falls by whether there was or was not a last straw by reference to the letter of 7 September 2007.[89]The earlier breaches . If and insofar as the Tribunal appears to conclude that there had been no affirmation of the contract prior to that last straw , that plainly cannot be supported, and the way that the Tribunal deals with affirmation appears to misunderstand Ms Carrs-Frisk's submissions. Plainly the earlier acts of discrimination, if and insofar as otherwise capable of amounting to a repudiatory breach, were not accepted as such, whether because the Claimant wanted to continue in employment in order to pursue the health insurance issue or otherwise, and there was plainly affirmation – subject to whether there was the alleged last straw .[90]The Solicitors' letters . We find the conclusions of the Tribunal in relation to the sending of the two solicitors' letters in paragraph 86 quite inexplicable: i) Particularly in the light of the fact that the Tribunal was simultaneously hearing the evidence in the application for Review, which we would have thought would have caused the Tribunal to conclude that there was at any rate retrospective justification for the Appellant's scepticism, in fact there was, in our judgment, nothing whatever capable of criticism in the two letters referred to. So far as concerns the 4 July letter, the Tribunal, in paragraph 76, did not refer to or quote the letter of 3 July 2007 to which the letter was a response, which we have quoted in paragraph 86(i) above. Once that is done, it is quite obvious that the reason why the information was being sought, as it is put by the Tribunal in paragraph 76, " eleven months after the illness in question ", was that it was expressly being raised by the Claimant's solicitors in the paragraph to which the quoted paragraph was an express response. As for the quoted words " almost died ", they are a direct citation from Dr Soutzos's report, to which we have made considerable reference already in this judgment (see paragraph 29 above). As for the letter of January 2007, this too was a response to a letter, that of 29 January, which we have quoted in paragraph 86(ii) above, but which the Tribunal does not. Further the Tribunal made a very selective quotation from the 31 January letter. Any reading of those two letters taken together must show the context, and, if anything, the stronger language was used in that written by the Claimant's solicitor. As it turns out, the Respondent's solicitors' apparent scepticism as to the existence of Bipolar II Disorder was in the event wholly justified: both experts rejected it, as set out in paragraph 33 above. ii) In any event the letters were sent in the course of heavily contested litigation, by and to solicitors. iii) We therefore conclude it to be wholly perverse to conclude that the content of that correspondence amounts to a breach of the implied term of mutual trust and confidence, but in any event: a) The Tribunal does not address the issue as to whether, even if a breach of such implied term, that amounts in the circumstances of this case to a repudiatory breach. It is now clear from Cantor Fitzgerald v Bird & Others [2002] IRLR 867 at paragraph 101 and Claridge v Daler Rowley Ltd [2008] IRLR 672 at paragraphs 38-9 that it is not every breach of the implied term that is repudiatory, or is sufficient to justify a case of constructive dismissal. b) Such breaches, if breaches they had been, had plainly not been accepted as repudiatory and formed part of the continuing affirmation.[91]We turn then to the central conclusion of the Tribunal, namely that what was concluded by it to be not a breach of contract (paragraph 84(i) above) nevertheless amounted to a last straw , because (paragraph 84 of the Fourth Case Judgment) although within GAB an " employee, following a series of acts which amounts to a breach, does not accept the breach but continues in employment, thus affirming the contract … cannot subsequently rely on the earlier acts if the final straw is entirely innocuous ", the threat of investigation in the letter of 7 September 2007 was not entirely innocuous.[92]The purport of paragraph 102 of the judgment, which we have set out at paragraph 84(ii) above, is not easy to fathom. The Tribunal refers to the making of an " allegation ", at a time when the Appellant " did not know the value of the free advice given ". But of course it was not the making of an allegation in the normal sense. The information had been supplied by Eversheds; and questions had been asked of Eversheds as to the value of the work done, which Eversheds were not in a position to disclose without the consent of the Claimant. The Appellant's solicitors' letter was simply indicating that the matter required investigation and that it was expected that such information was to be forthcoming: an obvious entitlement of the employer in relation to a potentially very serious breach. If there is something not innocuous in relation to the letter, it must be drawn from something or somewhere outside the four corners of that letter.[93]The Tribunal states on no less than five occasions during its judgment (paragraphs 70, 80, 104, 105 and 107) that the letter of 7 September 2007 was sent on the day (Friday) before the hearing of the First, Second and Third Cases was originally intended to start. It records as follows, in paragraph 107:
"Mr Winter sent an email to Mr Grisay of the Company on or around 17 August 2007 to set out the basis on which he and Raj Gupta provided assistance to Ms Switalski. Mr Cole could not explain why the investigation was not instigated when that email was received by the Company. We do not accept that the sending of the letter on 7 September 2007, the Friday before the Monday commencement of the hearing, was coincidental."
[94]It is clear to us however that, without more , the background of, steps taken leading up to, and timing of, the letter of 7 September 2007, were wholly unexceptional and incapable of criticism: i) It is not correct for the Tribunal to state that Mr Winter sent an email to Mr Grisay, on or around 17 August 2007. The email was a draft, emanating from the Claimant, as set out in paragraph 77 above, and did not arrive with the Appellant in any way which could be described as being from Mr Winter, and then in unsigned form, until 4 September. ii) The trigger point, at the end of August 2007, and in the days leading up to what was then intended to be the hearing, was the sending by the Claimant's solicitors of the letter dated 21 August 2007, with its content (unexplained as to whether it involved the intended calling of Mr Winter as a witness), which obviously required consideration and careful response. The consequences which we have described above flowed properly and, it seems to us, inevitably. No conclusion or inference could, without more , conceivably be drawn, either as to the timing itself or as to the passage of time (which could not be properly described as delay) after 21 August. The sending of the letter during the lead-up to the hearing was plainly not coincidental , but it flowed from the series of events triggered by the Claimant's solicitors. iii) The Tribunal records, in paragraph 80 of its judgment, the Claimant's evidence:
"It was the day before the case was due to start and … she could see the case starting and another spurious disciplinary process beginning. She said that the letter was designed to terrorise her."
The Tribunal makes no findings that this was in fact the case, or that this was a justifiable conclusion by the Claimant, and, without more , it could not have been a reasonable conclusion for the Tribunal to reach, if it had reached it, by virtue of the sending, in the circumstances described above, of a letter indicating that the information now supplied by Mr Winter required investigation.[95]We turn to the question of without more . Ms McKie had made a submission to the Tribunal, and had suggested to Mr Cole in cross-examination, when he denied it, that he was " keeping his powder dry ", though this does not surface into the Tribunal's conclusions. The only basis or starting point for such a conclusion, if it had been made, in the Tribunal's judgment on constructive dismissal, is to be found in paragraphs 72 of its judgment. The Tribunal commences with a quotation from Mr Tonkin's witness statement, which we have summarised in paragraphs 71 to 73 above, in relation to the conclusion as to Mr Tonkin's " opaque " probing of the Claimant at the meeting of 19 April 2005:
"… I considered that I had given a very specific example that receipt of free personal conveyancing advice from a legal service provider to F & C would raise questions within the business. I saw this as Gill's opportunity to inform me that, at that particular time, she was receiving free legal advice from Eversheds. Gill did not tell me during our meeting nor at any time after our meeting that this was actually the case. Following our meeting, I reached the conclusion that had Gill been receiving free legal services from Eversheds, she would have told me about this. She had an opportunity to do so in our meeting. I concluded that Gill was not receiving free legal services from Eversheds and that I did not, therefore, need to take any further action."
The Tribunal continues:
"As we have already found, Ms Switalski thought that Mr Tonkin was referring to her daughter working at Eversheds. We cannot see how Mr Tonkin could have reached the conclusion that he tells us he did reach without asking Ms Switalski the specific question. We do not regard his explanation as satisfactory. In these circumstances we are quite satisfied that the Respondent was aware of Ms Switalski taking free legal advice from Eversheds at least by 19 April 2005."
[96]It was not put by Ms McKie to Mr Tonkin, nor did she submit to the Tribunal, that he was not telling the truth when he so stated, i.e. that he concluded that she was not receiving free legal services from Eversheds. In any event, it was Mr Tonkin's unchallenged evidence that he had nothing to do with the events of August and September 2007. The inferential case that, without such or any proper foundation, the Tribunal must presumably be making, is that the Respondent, through Mr Tonkin, knew from April 2005 that the Claimant was receiving free legal services, and was condoning that breach, and/or was keeping its knowledge of such breach on the shelf to be used at some convenient stage, i.e. in the event 2½ years later, after the Claimant had launched legal proceedings (but not at any stage during the earlier grievance procedures, or at a time when the Tribunal found that the Appellant was victimising or harassing the Claimant). If there were such conclusion, it would need to be supported by careful reasoning, and set against the otherwise obvious conclusion that at the end of August/beginning of September 2007 the Respondent was reacting, understandably and properly, to the letter of 21 August 2007.[97]A tribunal judgment cannot be read as if it were a statute, and it is possible to read back into a part of a judgment in which a tribunal reaches a conclusion - in this case as to constructive dismissal - facts or findings made in other parts of its judgment in relation to other issues, albeit it would have been preferable if all matters had been taken together. To see if there is anything else which falls to be added to the conclusion in relation to constructive dismissal, we considered that part of the judgment in which the Tribunal makes its findings as to sex discrimination, and we refer to paragraph 106 of the judgment:
"106. The Tribunal took into account that Mr Tonkin had sufficient information in April 2005 to launch investigations into advice received by Ms Switalski from Eversheds had he chosen to do so. No action was taken after Ms Switalski lodged her grievance in October 2006 nor in November 2006 after it was alleged that the trust and confidence had broken down. Mr Cole decided to send a disciplinary letter, but did not institute an investigation. Mr Cole told the Tribunal that he first learned of the allegation of free legal services in March or April 2007, arising out of the disclosure exercise in the litigation. Even if that were the case, no investigation was instigated at that stage."
[98]As to this: i) The basis for it is the unfounded conclusion in paragraph 72 referred to above. ii) By the use of the words " even if that were the case ", there is an apparent finding or suggestion, without any basis in evidence or reasoning, that Mr Cole had prior knowledge before March/April 2007, a matter never put to him or submitted about him. iii) No reference by the Tribunal is made, nor is there a finding, with regard to the evidence set out in paragraph 76 above, as to the advice he was then given by the Appellant's solicitors. The Tribunal could not reach the conclusion it did without dealing with and/or disbelieving such evidence and giving reasons.[99]We also filter in, for the same reasons as set out in paragraph 97 above, what the Tribunal says still later in its judgment, in paragraph 140, relating to the issue of victimisation:
"140. This [7 September 2007] letter was written as a result of discoveries that the Respondent made as a result of the disclosure exercise in the First, Second and Third Cases. In evidence, Mr Cole was unable to provide any explanation as to why the letter of 7 September 2007 was sent at that time. Mr Cole said in his statement that he did not become aware of the advice by Eversheds to Ms Switalski until March or April 2007. We have already made a finding in relation to this and do not accept that the knowledge was only within the domain of the Respondent as late as that. Had the Respondent chosen to do so, they could have undertaken investigatory matters at a much earlier stage. Mr Cole suggests that he was waiting for a response from Mr Winter to the Respondent's letter of 4 September 2007. Mr Cole confirmed that it was he who instructed the Respondent's lawyer to write the letter of 7 September 2007. We note from paragraph 14 of Mr MacKay's first witness statement he states that although he was contacted by Mr Tonkin in April 2005 he had no further involvement until Mr Cole spoke to him in September 2007. The Tribunal views it as telling that we have no contemporaneous conference notes for Mr MacKay or Mr Cole. In the hearing in relation to the First, Second and Third Cases the Tribunal's attention was drawn to a large number of contemporaneous notes made by Mr Cole."
[100]As to this: i) It is plainly wrong to suggest that the letter of 7 September 2007 was written as a result of discoveries in the disclosure exercise. It was plainly sent as a result of the receipt of the letter of 21 August 2007 and the events that unfolded thereafter, set out in paragraphs 77 to 81 above. ii) The explanation for the sending by the Appellant's solicitors of the letter of 7 September is patent, as is the need to wait for the response from Mr Winter. iii) Once again, the Tribunal is founding itself upon its impermissible conclusion as to Mr Tonkin's knowledge, and consequently as to the Appellant's awareness, in April 2005, and its implicit and unexplained rejection of Mr Cole's evidence as to the events of April 2007. iv) The significance of the absence of conference notes between Mr MacKay and Mr Cole is completely unexplained, and no justification was put forward by Ms McKie before us.[101]We turn to a point made to us by Ms McKie. In paragraph 13 of his witness statement, Mr Tonkin stated that, when he responded, as he was asked to do, for the purpose of Mr Johns' grievance procedure in October 2006, he still believed that the Claimant had not received free legal services from Eversheds, in accordance with the conclusion he had reached in April 2005. Ms McKie told us that, notwithstanding this, Mr Tonkin had given evidence orally, during the November hearing that he only gave her 'the benefit of the doubt' until she lodged a grievance in October 2006. This was a matter apparently not raised again by her, or at all, during the Fourth Case hearing, save that she referred to it in paragraph 8 of her closing submissions. Whatever that might have meant, and it was not explored with Mr Tonkin, as it might have been, no finding was made by the Tribunal, nor reference made to it.[102]There was no evidential basis for the finding of knowledge by Mr Tonkin, nor any evidence which might have supported, or any case put which might have justified, a finding that there was a deliberate withholding of matters known to the Appellant, and sprung on the Claimant (fortuitously as a result of the opportunity given by the letter of 21 August 2007) in order to terrorise the Claimant, just prior to the hearing of her cases, by a threat of investigation. Even without filtering in the fresh evidence, material not least as to credibility, which was simultaneously being considered by them in relation to the application for Review, the Tribunal had no basis whatever for a finding that what was plainly, as the Tribunal found, the Appellant's entitlement - but, it may be said, in the light of the information now received from Mr Winter, in fact its obligation - to investigate and ask questions of the Claimant was not ' innocuous '. The Tribunal finds that the Claimant's conduct was grave , but its point in paragraph 102 of its judgment that the quantum of the free work was not known by the Appellant only emphasises why it was appropriate for it to be investigated. There may be a basis for a finding that such conduct was not innocuous and/or was capable of amounting to a last straw such as to entitle the Claimant to rely on earlier breaches otherwise affirmed, but this Tribunal did not have it.[103]We turn to the Tribunal's conclusions in relation to direct sex discrimination, harassment and victimisation.[104]Plainly if there were a permissible conclusion that the letter of 7 September 2007 was sent to terrorise the Claimant, a deliberate threat of spurious disciplinary process , as the Tribunal recorded the Claimant as believing, then there would be a substantial basis for a finding of victimisation. For the reasons we have given above, there is no such basis, and no evidential foundation whatever for a finding of victimisation, just as there is not for constructive dismissal by reference to the letter of 7 September.[105]The purportedly unsupportive and unacceptably confrontational two letters of January and July 2007, said to have evidenced an unsatisfactory attitude of the Appellant toward the Claimant's health, were found by the Tribunal to amount additionally to sex discrimination and harassment, though, we would have thought inconsistently, not to disability discrimination. We have already set out in paragraph 90 above our firm conclusions that there is no rational basis whatever for any criticism of these letters. The letters were in response to equally, if not rather more, robust letters from the Claimant's solicitors, and in each case there was the plainest justification for the queries or questions raised by the solicitors on the Respondent's behalf. The Tribunal is succinct in the extreme in relation to its conclusion of sex discrimination in this regard:
"114. The Tribunal has already found in relation to the complaint of constructive dismissal that the letters written by the Respondent's solicitors from March 2007 were unsupportive, and that there was an unacceptably confrontational approach after 31 March 2007. 115. Ms Switalski has demonstrated less favourable treatment. There is evidence arising from our earlier findings of sex discrimination and the progress of the litigation that results in a situation where the Tribunal could infer sex discrimination. The burden must therefore pass to the Respondent under s63(a) and we have received no explanation to discharge that burden. In these circumstances the complaint in relation to health succeeds."
[106]The first and perhaps obvious point to make is that of the only two letters in relation to which the Tribunal made purported criticisms, one of them antedated 31 March 2007, so that such conclusion could only be founded upon, or by reference to, the one letter of 3 July. However, with regard to sex discrimination, no comparator, real or hypothetical, is referred to. There is no explanation of the basis upon which the Tribunal's earlier findings of sex discrimination, the allegations of which had led to the proceedings in which the correspondence between the solicitors was now being carried on, were such as to cause the burden to pass under s63A, nor is it in any way right to say that no explanation had been received to discharge the burden. The letters were written in contested litigation, and their contents were both explained by the witnesses and plainly justifiable in our judgment. The Tribunal's conclusion as to harassment stands or falls with its conclusion as to sex discrimination (paragraph 119). There is no basis whatever, in evidence or in law, for these findings.[107]The sending of the letter of 7 September is further or in the alternative said to amount to or constitute sex discrimination. We have already concluded that the Tribunal was not entitled in law or as a matter of natural justice, because such case was not put, to reach the conclusion that the Appellant, through Mr Tonkin, knew of the Claimant's breach of contract in April 2005, and made no findings and/or conclusions which would entitle it to reach a decision that the Appellant mala fide sprang an inappropriate letter on the Claimant on 7 September 2007, for the purposes of constructive dismissal. We reach the same conclusion in relation to unfavourable treatment. However once again, the finding that, even if there was unfavourable treatment, such amounted to sex discrimination (a trap of which all tribunals must be wary since Glasgow City Council v Zafar [1997] 1 WLR 1659 and Bahl v Law Society [2004] IRLR 799 ) is not easy to follow.[108]At paragraph 93 of the judgment, the Tribunal notes Ms Carrs-Frisk's submission that " there can be no possible finding of less favourable treatment unless the Tribunal identifies the material circumstances for comparison, that it has not been suggested that Ms Switalski's treatment was on the grounds of her sex and that there is no prima facie case of direct discrimination ": and in paragraph 94, the Tribunal notes the Claimant's reliance on a hypothetical comparator. Notwithstanding that reference to a hypothetical comparator, the Tribunal refers to other employees:
"100. In addition, the Tribunal has heard evidence that various employees of the Respondent obtained legal advice from Ms Switalski. She gave advice to Luc LeClercq on a surveyor's report … and Mr MacKay also received some advice. 101. The Tribunal has heard much of corporate hospitality and gifts received by Ms Switalski, namely a trip to Glyndebourne with Norton Rose and a Rolling Stones' Concert with C S Cameron McKenna [neither of which were disclosed by the Claimant, and neither of which were in the event sought to be investigated by the Appellant]. Ms Switalski gave evidence that Mr Bob Jenkins, the Chairman of the Company, was taken to a Gala Dinner after the Chelsea Flower Show. She said the tickets for this were in excess of £500. Mr Mackay's evidence was that, in Mr Jenkins' case, he was satisfied that the non-disclosure of this by Mr Jenkins was an innocent oversight. On the evidence of this before the Tribunal, there is a disparity in treatment in these disclosable matters between Ms Switalski and male members of staff."
[109]We cannot believe that the Tribunal seriously concluded that the giving of some free advice to fellow employees, or the non-disclosure by Mr Jenkins of one dinner (the Claimant herself not disclosing two) was in the slightest comparable with what the Tribunal itself describes as grave , namely the undisclosed soliciting and receiving of a very substantial quantity of free advice, from someone who was not a friend, from a firm which was one of those who would be tendering to give services to the Appellant, which she would have to be responsible for selecting, and in circumstances in which she apparently felt herself driven to say " I can't promise anything ". In any event, all that the Appellant was proposing to do was to investigate the position which had been specifically drawn to their attention by Mr Winter.[110]In any event, even if the existence of such alleged comparators and/or the background of the earlier sex discrimination, as found by the Tribunal in the First and Second Cases, was sufficient to transfer the burden of proof under s63A of the SDA 1975, the Tribunal is plainly wrong in saying, as it does in paragraph 103, that " no explanation was put forward. Ms Carrs-Frisk did not address the issue of justification in her submissions ". As was raised by Judge Peter Clark in his judgment, at paragraph 26, the reference by the Tribunal to justification is not apt in the context of direct sex discrimination. What is relevant is explanation, and that explanation, namely that the letter of 21 August 2007 and its aftermath prompted, and in our judgment inevitably prompted, an investigation, was plainly put forward and, at the least, was not considered by the Tribunal in paragraph 103 of its judgment.[111]We are satisfied that the Tribunal's conclusions must be set aside in their entirety. There may however be a case of constructive dismissal and victimisation and, possibly, sex discrimination and harassment which a reasonable tribunal could find on remission in respect of the sending of the letter of 7 September 2007, and we propose to remit those questions. We have no hesitation in substituting a decision that the case of sex discrimination and harassment must be dismissed in relation to the sending of the earlier solicitors' letters and those issues are not remitted. Remission[112]We turn now to the question of whether the balance of the two matters, the Review of the First and Second Cases which must now take place, pursuant to our grant of the Appellant's application for a Review, and any rehearing of the Fourth Case, insofar as it relates to the 7 September 2007 letter, if the Claimant wishes to pursue it, should be remitted to the same or to a different Tribunal.[113]The leading case on the issues to be borne in mind when the EAT decides whether to remit to the same or a different tribunal, to which our attention was drawn by both Counsel is Sinclair Roche and Temperley v Heard [2004] IRLR 763 , (" Sinclair Roche No 1 ") at paragraph 46 of the judgment of the EAT (per Burton P). So far as relevant we set out the factors there referred to:
"46.1 Proportionality must always be a relevant consideration … 46.2 Passage of time. The appellate tribunal must be careful not to send a matter back to the same tribunal if there is a real risk that it will have forgotten about the case … 46.3 Bias or partiality. It would not be appropriate to send the matter back to the same tribunal where there was a question of bias or the risk of pre-judgment or partiality … 46.4 Totally flawed decision. It would not ordinarily be appropriate to send the matter back to a tribunal where, in the conclusion of the appellate tribunal, the first hearing was wholly flawed or there has been a complete mishandling of it …The appellate tribunal must have confidence that, with guidance, the tribunal can get it right second time. 46.5 Second bite. There must be a very careful consideration of what Lord Phillips in [ English v Emery Reinbold v Strick Ltd [2003] IRLR 710 CA] at paragraph 24 called 'a second bite at the cherry'. If the tribunal has already made up its mind, on the face of it, in relation to all the matters before it, it may well be a difficult if not impossible task to change it: and in any event there must be the very real risk of an appearance of pre-judgment or bias if that is what a tribunal is asked to do. There must be a very real and very human desire to attempt to reach the same result, if only on the basis of the natural wish to say 'I told you so'. Once again the appellate tribunal would only send the matter back if it had confidence that, with guidance, the tribunal, because there were matters which it had not, or had not yet, considered at the time it apparently reached a conclusion, would be prepared to look fully at such further matters, and thus be willing or enabled to come to a different conclusion, if so advised. 46.6 Tribunal professionalism. In the balance with all the above factors, the appellate tribunal will, in our view, ordinarily consider that, in the absence of clear indications to the contrary, it should be assumed that the tribunal below is capable of a professional approach to dealing with the matter on remission … It follows that where a tribunal is corrected in an honest misunderstanding or misapplication of the legally required approach (not amounting to a 'totally flawed' decision described at 46.4), then, unless it appears that the tribunal has so thoroughly committed itself that a rethink appears impracticable, there can be the presumption that it will go about the tasks set upon remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal."
[114]Unfortunately, in Sinclair Roche No 1 , the EAT's confidence was misplaced, and, after the same tribunal to which the matter had been remitted had become once again seised of the matter, further complaint arose as a result of which the matter was restored before the EAT. The further decision of the EAT is unreported, and is contained in its judgment of 21 November 2005 (UKEAT/0637/05/LA) (" Sinclair Roche No 2 "). The EAT, in its further judgment (per Burton P), stated as follows:
"55. In those circumstances, we stand back and consider whether we are still of the view that we were in 2004 with regard to the risk which arises by virtue of remitting this, exceptionally, to the same tribunal … We are looking at it again now in the light of the facts that have occurred subsequently. [Counsel for the Appellant] submits (even by reference to our category of totally flawed judgment) that, even if we were not of the view, having addressed the failings of this Tribunal on the first liability hearing, that it was a totally flawed decision, now that we have seen totally flawed decisions by [the Chairman] in relation to the decisions in February and March, and now in November of this year, we can no longer have any confidence that there will not be further totally flawed decisions. But leaving that aside, we are no longer, submits [Counsel for the Appellant] able to conclude that we have confidence that this Tribunal will be chaired with professionalism or without a closed mind. 56. [Counsel for the Respondent] has submitted that, even if there has been lack of professionalism, … nevertheless (a) the effect of that Order has been corrected, by its revocation and (b) it is not so serious as to lose confidence in the Chairman … She submits that, if it is only a lack of professionalism, then the issue becomes one of a balancing act, in which prejudice to both sides must be considered. She accepts, however, that if it is a question of the appearance of bias or of a closed mind, then it is not a balancing act, and convenience or prejudice must be relegated out of the consideration … 62. … Leaving aside the fact that our guidance in this case, as to when it was appropriate to send the matter to the same Tribunal, was intended to cope with what was inevitably an exceptional case, because of the numerous decisions in which it has been thought safer [not] to send it back to the Tribunal, we are satisfied that we cannot and do not have now, in the light of the facts that have occurred, the confidence which we expressed ourselves as having, in relation to this tribunal being able to continue with an open mind and without pre-judgment. In these circumstances, the balancing act does not arise. We are entirely satisfied that it would be contrary to the interests of justice for this to be heard before the same Chairman."
[115]In this case there are two matters to be remitted, the first is a Review of a judgment which has already been given in the light of substantial fresh evidence, and the other is a remission for a fresh hearing. As was recorded in the Sinclair Roche judgments, it is exceptional to send a remitted hearing back to the same tribunal, and the considerable majority of remissions is, in practice, sent back to a different tribunal, albeit that, as a result of the guidance in Sinclair Roche (No 1) , some remissions will be sent back to the same tribunal, albeit that the very experience in Sinclair Roche , namely that the EAT's confidence as to the absence of risk was misplaced, will be bound to be borne in mind by an appellate tribunal. As for a Review on the ground of fresh evidence, albeit that such a Review does not have to take place before the same tribunal that reached the original decision, it is in our judgment likely to be more often than not that it will be sent back to the same tribunal to see whether the fresh evidence makes any difference to that tribunal's earlier conclusions. However: i) in this case, the decision falls to be made as to remission in the two separate appeals at the same time and, in particular, in respect of two hearings which took place contemporaneously in front of the same tribunal. ii) They have already expressed their conclusion, albeit on a flawed basis. iii) The very same fresh evidence, which we have concluded ought to have been of sufficient weight to have caused the tribunal to have second thoughts about its decision on the First and Second Cases, was before it when hearing the Fourth Case, and yet does not appear to have caused it any pause for thought, even in relation to its decision regarding the proper queries raised by the Appellant's solicitors as to the Claimant's health in their correspondence, which, with the benefit of consideration of the fresh evidence, could be seen to have been even more justified.[116]Ms McKie in her submissions did not vigorously resist the suggestion of remission of the Fourth Case to a different tribunal, but reserved her powerful advocacy to seek to persuade us that, if we were to remit the Review, that should be to the same Tribunal. The basis for that submission was by reference to expedition and convenience and the lessening of prejudice to her client, by virtue of the fact that the Remedies hearing in the First and Second Cases is presently listed for February 2009. Although there is an appeal against the Tribunal's decision in the First and Second Cases to come before the Court of Appeal in January, Ms McKie has informed us that the Court of Appeal has agreed to do its best to deliver its judgment in such short order that the hearing in February on remedies could be preserved, if the appeal were dismissed. Consequently Ms McKie suggests that, if we were to remit the Review to the Tribunal, as indeed we have concluded should be done, it should be remitted to the same Tribunal, to be heard during the period presently set aside for remedies, with remedies to follow if and insofar as the Tribunal decides not to review. She submits that a decision to remit the Review to the same Tribunal would thus cause least inconvenience and delay to her Client, and that it would not be inconsistent to remit the Review to the same Tribunal while remitting, if we were so minded, the Fourth Case to a different tribunal, who could then hear the Fourth Case at their leisure.[117]We are not persuaded that it would be sensible for two different tribunals to hear the remitted Review and the remitted Fourth Case. It is right to say that the issue as to whether the sending of the 7 September 2007 letter justified the Claimant in accepting repudiation of the contract, she not having accepted repudiation and/or having affirmed the contract prior thereto, could be said to be a severable issue. However, we are not satisfied that it can be decided, particularly given the only way in which we can see that such a case could succeed, namely by virtue of looking back at the Appellant's earlier conduct, without reference to the totality of the evidence, including the fresh evidence which will now be admitted and admissible for hearing on the Review. Further, if the Appellant were successful in respect of the Fourth Case on the remitted hearing, it would, in our judgment, be bound to have an impact on remedies. We have not seen how the nearly £19m claim by the Appellant sought in the Remedies hearing is arrived at, but, particularly if, by virtue of the fresh evidence, her case as to the impact of any conduct by the Appellant on her is diminished, she may need the further findings in the Fourth Case in her favour in order to support such a claim.[118]We are entirely satisfied, both by reference to the guidelines in Sinclair Roche (No 1) and our appreciation of the risks in the light of Sinclair Roche (No 2) , that, even though in the Fourth Case appeal, an order for remission to a different tribunal would be the norm, whereas on a remission for a Review that may not be the case, the grounds for sending both these cases back to a different tribunal are made out. So far as the Review appeal is concerned, we do conclude, for the reasons we have given, that the Tribunal's decision was wholly flawed. We have formed the conclusion that it may well be that the reason why it was wholly flawed was due to the Tribunal's understandable, but inappropriate, desire to preserve its very fully considered earlier judgment at all costs, which led it to shut its eyes to the materiality and persuasiveness of the fresh evidence, and to sidestep issues, the resolution of which would otherwise have driven it to the only available conclusion, namely that there should have been a Review, and indeed a proper Review, analysing the effect of the plainly material evidence on each of its earlier decisions. As for the contemporaneous decision that it made in the Fourth Case, we begin of the view that it is surprising that none of the fresh evidence which it was simultaneously hearing, caused it to take a more sceptical view of the Claimant's case. However, in any event, for the reasons we have given, the Tribunal's judgment was both unfair, in founding its conclusion on a finding that Mr Tonkin, and thus the Appellant through Mr Tonkin, knew of the Claimant's breach of contract in and as from April 2005, which was not put, and again wholly flawed, particularly in relation to its findings in respect of sex discrimination. We have no confidence that, if these cases were remitted to the same tribunal, it would be able to look at these matters afresh and to reach conclusions which are otherwise than foreclosed by its earlier judgments.[119]Although we consider the question of proportionality, as referred to in Sinclair Roche , in this case this is not in our judgment a substantial factor. The claim is for some £19m, such that the expenditure of costs is not likely to be disproportionate. In any event, so far as the rehearing of the Fourth Case is concerned, it will be necessary, whether in front of the same or a different tribunal, to reopen the evidence, and so far as concerns the Review, whether it be by the same or a different tribunal, the same revisiting of the original decisions, and each of them, by reference to the impact if any of the fresh evidence will be required to be carried out. What has caused us pause for thought is the forceful submission of Ms McKie in relation to the February hearing that the Fourth Case remission could be to a separate tribunal, but that in the meanwhile any remission in relation to the Review should be to the same tribunal, to be heard by that tribunal before and with the Remedies hearing. We sympathise with the suggestion that, if at all possible (subject of course always to the outcome of the Court of Appeal hearing), there should not be a waste of time and that the tribunal which hears the Review should also be the tribunal which then proceeds to the Remedies hearing, if so advised. But we do not see that this desirable outcome can only be achieved by having it in front of this same tribunal. We have no doubt that, with good will and the usual efficiency of the tribunal offices, a new panel can be appointed to hear in, or not long after, February, if so advised, and always subject to the outcome of the Court of Appeal hearing, the Review of the First and Second Cases, the Fourth Case and the Remedies hearing arising out of both or either. While we have disagreed with the apparent view of the Tribunal that the fresh evidence was limited in its relevance to its impact on a Remedies hearing, it is plainly the case that that fresh evidence will be applicable both to liability and to remedy, and one tribunal can hear all the evidence and give all the decisions.[120]We have been invited by Ms McKie to give specific direction as to how the Review is to be carried out upon remission. If we had concluded that it should be sent to the same Tribunal, we would have felt it necessary to give very specific directions. Given, however, that we conclude that it should go to a different tribunal, we have no doubt that that tribunal will, as is obviously required, consider all the evidence (including all that set out in paragraphs 27 to 37 above) and apply it to each of the Claimant's claims, the surviving subject matter of the First, Second (and Fourth) Cases, and that we can leave the method of resolution to the good sense of such new tribunal. Conclusion[121]In those circumstances, both appeals are allowed; in the Review appeal a decision is substituted that there be a Review of the decision on each successful claim in the First and Second Cases, and that such Review be remitted to a different tribunal, and in respect of the Fourth Case appeal, the decision that there was direct sex discrimination and harassment in respect of paragraph 7 of the Grounds of Complaint be dismissed and the balance of the claims be remitted for hearing by the same different tribunal.