"48. On11 July 2017 the Claimant wrote to Mr England as follows: "
"Dear Amardip Thank you for your letter of 11 July. I understand that Miss Norman-Thorpe is currently in the process of drafting her report. I understand that your view is that there is no evidence of gross misconduct on your part, but I have not yet received Miss Norman-Thorpe's report so am unable to comment. Given the stage in the procedure we are at, I do not think it is appropriate to carry out a review of your suspension at this time. However, I will do so immediately that I am in receipt of the disciplinary investigation report. I therefore cannot agree to lift your suspension and withdraw the disciplinary proceedings with immediate effect. I note that you believe that the Council's conduct amounts to a breach of the implied duty of trust and confidence. I do not accept this. However, there are several matters in your email which I wish to look into, including what you say about your whistleblowing complaint not having been investigated. I understand that the disciplinary process is stressful for you and would like to remind you that support is available to you to assist with this if you wish. Please let me know if this is the case. 50. On17 July 2017 the Claimant sent a letter of resignation to Mr Parkin as follows: "
"In the meantime, the Claimant had been seeking alternative employment since March 2017. In fact, unknown to the Respondent, the Claimant had secured a post as Senior Planning Lawyer with Newham Council. The Tribunal was shown a contract of employment between the Claimant and Newham Council which stated: "
"154. In the Claimant's letter dated11 July 2017 , she refers to eight matters which she said amounted to fundamental breaches of contract which breached the implied term of trust and confidence. However, she offered to withdraw her existing grievances and subject access requests and that would include alleged breaches number 1 to 8, if Mr England would comply with her request to: "(a) My suspension to be lifted for me to return to work, as Head of Legal with immediate effect; and (b) The disciplinary proceedings to be withdrawn in their entirety." 155. In his reply dated14 July 2017 Mr England refused to lift the suspension and withdraw the disciplinary proceedings as he was awaiting Mrs Norman-Thorpe's report which was due imminently. 156. In these circumstances, it was clear from the contents of the Claimant's letters dated11 July 2017 and her resignation letter of17 July 2017 that she resigned in response to Mr England's refusal to lift the suspension and withdraw the disciplinary proceedings rather than any of the matters which had gone before. She was prepared to put those matters behind her if her request was granted. 157. The decision in London Borough of Waltham Forest v Omilaju , as confirmed in Kaur v Leeds Teaching Hospital NHS Trust , that it will be an unusual case where conduct which has been judged objectively to be reasonable and justifiable satisfied the final straw test. 158. In this case, the Tribunal found that the suspension and disciplinary proceedings had a reasonable and proper cause, as also did the decision by Mr England not to lift the suspension or withdraw the disciplinary proceedings until he had received Mrs Norman-Thorpe's report. 159. Mrs Walker's report contained detailed allegations of wrongdoing supported by apparently reliable evidence, which in turn supported the suspension, continuation of the suspension and the continuation of the disciplinary process to await receipt of Mrs Norman-Thorpe's report. 160. Accordingly, the Tribunal found that, viewed objectively, there was no breach of trust and confidence in response to which the Claimant resigned and that her alleged "last straw" had a reasonable and proper cause and could not amount to a breach of trust and confidence. 161. In considering the reason for the Claimant's resignation, the Tribunal also took account of the fact, as described above, that the Claimant started a new appointment at Newham Council on the same date as she submitted her resignation to the Respondent. 162. During cross-examination, it was put to her she had mentioned nothing about a new appointment in her witness statement and she replied that there was "no need to do so"
"Ground 1; serious procedural irregularity 7. There was a serious procedural irregularity during the course of the hearing. One of the members of the ET was asleep for considerable periods of time when the witnesses were being cross-examined. It was the lady member, Ms A Brown. She kept falling asleep during the afternoons of 3 and4 July 2018 , when the claimant was being cross-examined. She then fell asleep again during the afternoon of4 July 2018 while the respondent's key witness, Ms Walker, was being cross-examined. She then fell asleep again during the afternoon of5 July 2018 , when Ms Walker's cross-examination continued (Ms Walker's cross-examination finished at the end of the afternoon session of the hearing on that day)."
"98. The basic principle of that decision is clear, namely that justice must be done and be seen to be done; and that the justice purportedly administered by a manifestly inattentive tribunal may deserve the criticism that it was neither justice nor seen to be justice. The case in question was a two-day case, with the evidence justifying the conclusion that Mr Eynon had misbehaved on both days. The present case was a 28-day case. Does Stansbury establish that proof, for example, that one of the tribunal members was asleep for, say, three minutes on each of two of the 28 days is sufficient to entitle the losing party to have the decision set aside and a re-trial ordered? If so, it would appear to establish a principle whose consequences could in some cases be devastating, particularly if, for example, the moments of proved inattention were exclusively during parts of the case which could not rationally be regarded as having any impact one way or the other on the ultimate decision: for example, during the unnecessarily extended reading by counsel from a demonstrably irrelevant law report. In such an example, we question whether the informed and fair-minded observer would regard the member's brief inattention as inevitably fatal to the quality of the decision. As it seems to us, it will always be a question of fact in all the circumstances of the case whether the nature and extent of the proved inattention will be sufficient to require the conclusion that the hearing was an unfair one whose decision cannot be allowed to stand."
"69 I do not think that this passage in Shodeke was intended to soften, or is at odds with, the guidance in Stansbury , which the EAT faithfully reviewed. The EAT in Shodeke did not use the language of a de minimis test, nor do I think it is particularly helpful to think about this area in that way. Realistically, there may be cases where, during the course of a hearing, a Judge or member's attention briefly wanes or lapses, but no harm is done. The matter is acutely fact sensitive, and depends, in each case, entirely on a careful finding and evaluation of what happened: the nature and extent, and what was going on at that point in the proceedings. It is not the case that any and every lapse of attention must affect the fairness of the trial. But either what happened in a given case is such that it undermined the fairness of the trial – applying the Stansbury guidance – or it did not. This passage in Shodeke does no more than envisage a particular type of scenario in which that might be found not to be the case. But if, in the given case, the fair-minded and informed observer would conclude that there was a real possibility that the fairness of the trial was affected, then the decision cannot stand."
"15. On Tuesday the 3 rd July, Ms A Brown, was observed by me to be asleep. She was resting her head on her hand, on an arm, which was upright. She had clearly dozed off. I was shocked at what I observed and as I was asked to locate a particular page in the bundle, I dropped the particular folder I was asked to open, on the desk before me, to try and make enough noise to awake Ms Brown. I believe she must have been asleep for around 10 minutes when I noticed she had woken up 1 was unable to observe her the whole time because of the nature of my cross examination which required me to go Through a number of pages in the various bundles."
"22. Before the start of the sitting of Thursday 5 July Mr Hyams advised me of a conversation Mr Cheetham had with him. Mr Cheetham asked if Mr Hyams had noticed whether Ms Brown was asleep in court and if not he wanted to alert Mr Hyams to this. It was clear from this that Mr Cheetham was aware of the issue with Ms Brown but had not alerted the court to do it nor did he wish to do so."
"On the afternoon of Thursday 5 July, I observed that Ms Brown had fallen asleep during the cross-examination of Mrs Walker. It was not a momentary lapse. She was clearly in a relaxed state of slumber with her arms supporting her head for a considerable period."
"5. On the 5 th July 201,8 the cross-examination of the Respondent's main witness Mrs Walker was continuing from the afternoon of the 4 th of July. 6. I witnesses Ms Brown falling asleep during the course of the day. 7. In the hour leading up to the lunch break, I saw Ms Brown fall asleep on a number of occasions for periods of between 20 seconds and a minute. I could clearly see that Ms Brown was not concentrating on the questioning. This was evidence from the fact that when Counsel would direct the witness and the Bench to a particular document, Ms Brown would only reach that document sometime after other members of the bench and after Counsel had made reference again to it. Consequently, when counsel was reading out an extract Ms Brown would still be turning the pages of the Bundle trying to find it. 8. After lunch this continued in a similar vein until later in the afternoon, when her periods of sleep extended. I noted the time of the longest period, and this was just under 20 minutes."
"2. ….However, my client's son Thomas and her husband Kevin both mentioned to me that they had seen it after which Mr Cheetham counsel for the Respondent in the presence of Miss Eccles his instructing solicitor asked whether I'd seen the lady lay member asleep and I said that I'd not done so, but that I'd been told by my client's family members that they had seen it. Mr Cheetham and Miss Eccles that they had themselves seen it."
"3. First, it is correct that, while Mr Hyams was cross-examining one of the Respondent's witnesses, 1 noticed that the female lay member was having difficulty staying awake. I drew this to the attention of my solicitor, Caroline Eccles, I cannot now remember what time this occurred or on what day of the hearing, but I do recall mentioning this to Mr Hyams during the next break. I did not know whether he had noticed it and I wanted to give him the opportunity to raise it with the Judge, if he felt it appropriate. 4: I did not refer to this matter again during the hearing either directly or indirectly, and I cannot now recall whether Mrs Clegg mentioned it to me (as she claims in her witness statement). 5. Secondly, I disagree with the suggestion that the lay member was regularly sleeping and for periods of up to 20 minutes- I cannot say I was watching her throughout, but it seems to me inherently unlikely that this occurred without the judge, Mr Hyams, Ms Eccles or myself noticing."
"4. I have attended many training sessions and have sat as a lay member regularly and frequently; I consider my listening and concentration skills to be acute having had much practice to refine these skills over the years. I approach my Employment Tribunal duties seriously, professionally and diligently. ….. 8. I vigorously deny that I was asleep at any and all times/days as alleged. Had there been any suspicion whatsoever that I was asleep, thus flawing the proceedings, the parties' legal representatives would surely have reported this at the time and the proceedings would surely have been halted. The accounts given in relation to my conduct in the affidavit/statements made by the Appellant (10 December 1018 ), Mr Healy (23 January 2019 ) and Ms Clegg (23 January 2019 ) are mistaken; they are wrong."
"10. My style of note taking is to note the question asked of any witness, and to record the reply noting too any document(s) and the relevant page bundle number to which we may be referred. My personal notes are not a perfect verbatim, minuted record of proceedings but are comprehensive and detailed enough to assist me in making meaningful contributions during the Employment Tribunal's deliberations which indeed they did during our deliberations which took place after the parties to the proceedings had left and on the afternoon of 11 July, 12 July and1 August 2018 . I enclose the 58 pages of my notes made between 2pm 3 July and 11:28pm10 July 2018 . 11. Whilst I am concentrating and making notes, my head is, of course, bent over and my posture can include me resting my chin on my hand whilst I am writing. In addition to making notes I usually/typically spend time 'actively' listening and observing any witness giving evidence and generally observing all those persons present In the Tribunal room."
"14. In summary. I completely refute the Appellant's, Ms Clegg's, Mr Healy's and Mr Hyams' allegations that I was asleep during the above proceedings, I have presented evidence above that I was paying full and detailed attention to the proceedings at all times."
"13. …. Ground 8: taking into account, when determining that the claimant was not dismissed constructively, the irrelevant factor of the claimant's response to the conduct of the respondent on which she relied in saying that she had been dismissed constructively; alternatively, wrongly looking for the 'effective cause' of the claimant's resignation."
"10. It is a pity that the Tribunal was not referred to Court of Appeal authority rather than the EAT authority which Jones v Sirl represents. In Nottingham County Council v Meikle[2005] ICR 1 the principles of constructive dismissal are comprehensively discussed. It is now perhaps the leading authority at Court of Appeal level in respect of constructive dismissal, though mention might also be made of the case of Bournemouth University Higher Education Corporation v Buckland[2010] EWCA Civ 121 ,[2010] ICR 908 CA, in which the Court of Appeal re-emphasised that the approach to be taken in a case of alleged constructive unfair dismissal is the common law contractual approach and not an approach which more generally looks at the fairness or merits of the case. The common law approach looks at the conduct of the parties objectively. Thus in Meikle in the judgment of Keene LJ at paragraph 33 this was said: "
"…the employer's repudiatory breach was the effective cause of the resignation. It is important, in our judgment, to appreciate that in such a situation of potentially constructive dismissal, particularly in today's labour market, there may well be concurrent causes operating on the mind of an employee whose employer has committed fundamental breaches of his contract of employment entitling him to put an end to it. Thus an employee may leave both because of the fundamental and repudiatory breaches, and also because of the fact that he has found another job. In such a situation, which will not be uncommon, the industrial tribunal must found out what the effective cause of the resignation was, depending on the individual circumstances of any given case." 12. Insofar as that passage suggests that the Tribunal must choose between causes, both of which operate, in order to see which was the predominant one, it is in error. If it is saying that the evidence may leave the Tribunal in a circumstance in which it is plain that the behaviour was not in response to a breach, even though that occurred and even though it was serious, but for some other unconnected reason to the exclusion of a response to the breach, then it would be correct. It is a pity that ambivalence has obscured the principle underlying the decision, which was clearly identified in Meikle and is therefore and in any event binding upon this Tribunal. 13. The matter is not entirely clarified by the very last paragraph of the Judgment of Jones v Sirl in which the following passage occurs: "
"On that analysis it appears that the crucial question is whether the repudiatory breach played a part in the dismissal." 16. He added at paragraph 35: "
"Having regard to those two authorities, and there are others applying the same principle, it is clear to this Tribunal that when the Employment Tribunal asked itself what the principal reason for the resignation was it asked itself the wrong question. It should have asked itself whether the breach of contract involved in failing to pay the sick pay…" [that was the breach at issue in that case]"…was a reason for the resignation not whether it was the principal reason." 18. The principle needs to be re-emphasised in the words of Elias J. The issue is whether the breach played a part in the resignation."