The claimant worked as an arboriculturalist for a local authority. There were problems at work with colleagues, and a planned project move did not resolve the issues as hoped by a manager. These problems, including use of offensive language in the workplace and alleged bullying, and work pressures led to the claimant going off ill. On her return there was a further incident concerning a poster that the claimant thought offensive and she went on sick leave again. There was subsequent involvement by occupational health and a grievance procedure was in place but 22 months later the claimant resigned.  In the ET, a majority found that the some of the allegations were true but had been acceptable; that the various incidents had not represented less favourable treatment on grounds of sex and that the claims were out of time given the length of time that the claimant had been off sick and her failure to pursue the grievance.

In the judgment HHJ Hand reviews the tribunals handling of the evidence and the issue of acceptance of a waiver of the contract. He concludes that the ET had conflated the concept of affirmation with that of reasonable practicability to present a claim and so had misdirected itself, principally as the tribunal had not sufficiently considered discussion between the parties to reach an accommodation.  On the sex discrimination claims, while noting submissions from the claimant about the tribunal not using the approach set out in Igen v Wong, he found that the ET was entitled to reach the conclusion it had. However the unfair dismissal claim was remitted to a different tribunal partly because of the dissenting view of one of the panel.

Appeal No. UKEAT/0587/10/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 May 2011

Before

HIS HONOUR JUDGE HAND QC, MR B R GIBBS, MR B WARMAN

BURDEN (APPELLANT)

STEVENAGE BOROUGH COUNCIL (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR JOHN HORAN (of Counsel)

Instructed by:
Motley & Hope
The Manor House
Shortmead Street
Biggleswade
SG18 0AT

For the Respondent
MR JOEL KENDALL (of Counsel)

Instructed by:
Stevenage Borough Council
Legal Services
Daneshill House
Danestrete
Stevenage
SG1 1HN

UNFAIR DISMISSAL – Constructive dismissal

SEX DISCRIMINATION – Inferring discrimination

The Employment Tribunal had conflated the common law concept of affirmation of contract after breach with extension of the time limited for submission of a claim because it had not been reasonably practicable to present it in time and on that ground the appeal succeeded and the issue was remitted to a differently constituted Employment Tribunal for a re hearing.

There had been no error of law in the conclusion reached that there had been no sex discrimination and the appeal was dismissed on that point.

1. This is an appeal against the judgment of an Employment Tribunal sitting at Bedford over a period of ten days in March 2010 and three days in April 2010; the written judgment and Reasons having been sent out on 20 September 2010 after a further three days of discussion in Chambers. It comprises some 35 pages and decided that the Employment Tribunal neither had jurisdiction to consider complaints of unfair dismissal and sex discrimination because they had been presented out of time, nor, in the case of sex discrimination, that there was any case on the merits.

1. The decision was that of a majority comprising Employment Judge Adamson and Ms Carvell. The other lay member, Mr Thakoordin, dissented. There had been a race discrimination complaint and that was also dismissed, but that does not form the subject of this appeal, and an unlawful deductions case was also withdrawn.

1. At the Employment Tribunal, the Appellant was represented by Mr John Horan of counsel and the Respondent by Mr Joel Kendall of counsel. A number of grounds of appeal were raised by the Notice of Appeal. The first ground relates to the conclusion of the Employment Tribunal that it did not have jurisdiction to hear the complaint of unfair dismissal because it had been presented out of time. It has been conceded by Mr Kendall that the Employment Tribunal was wrong to reach that conclusion because proceedings were commenced within 3 months of the date of dismissal. It is the duty of this Tribunal to scrutinise carefully concessions, which would lead to an appeal being allowed. Having done so we accept that the judgment was simply wrong on this point. Therefore, at first sight, that concession leaves the finding at paragraph 67 of the judgment, which is in these terms:

"Subject to our deliberations on the time point we would find that the Respondent dismissed the Claimant within the meaning of Section 95 (1) (c) Employment Rights Act 1996 and that the dismissal was unfair contrary to Section 98 of that Act there being no potentially fair reason for dismissal, or fair dismissal procedure."

1. At the outset we raised with Mr Kendall where the concession in relation to the first ground of appeal, namely that the Employment Tribunal had plainly been wrong on the time point, left the matter so far as this Tribunal was concerned. Mr Kendall submitted that there had been no dismissal here and that the issue of whether or not there had been a dismissal was raised by the Respondent's answer in the context of there having been a finding by the Tribunal that there had been what is called in the judgment a waiver. This is to be found at paragraph 70 of the judgment, the third sentence of which reads:

"The majority find that at that stage, and certainly by the date of her resignation, the Claimant had waived the breaches of contract."

1. The apparent clarity of that statement is, however, immediately contradicted in the same paragraph by the last sentence, which reads:

"The complaint of unfair dismissal is out of time and thus the majority find that the Tribunal did not have jurisdiction to consider it."

1. That is the point which has been conceded to be wrong. The Respondent answer, submits Mr Kendall, really provides sufficient material from which he can, in effect, rewrite paragraphs 67-70 of the judgment in terms that, although there had been a breach of the implied term of mutual trust and confidence by the Respondent, the Appellant had affirmed the contract, either by May 2007 or at any rate by the time that she submitted her resignation in January 2008 and so this was a case of resignation not dismissal.

1. Mr Horan opposed that reading of the Respondent's answer and submitted that there was no answer or cross-appeal that enabled Mr Kendall to conduct the exercise of reshaping those four paragraphs of the Employment Tribunal's judgment. It may be that on strict analysis what was required in this case was a cross-appeal as to the finding at paragraph 67. Having heard the submissions of Mr Horan and Mr Kendall on this matter we have reached the conclusion that justice requires that we give permission to Mr Kendall to amend his answer so as to raise the point that the reasoning of the Tribunal at paragraphs 67-70 amounts to a finding that the contract had been affirmed and that therefore the resignation had not been caused by the breach of contract and that therefore there had been no dismissal.

1. We took the view that there was no prejudice arising to Mr Horan or his client, the Appellant, if we were to give such permission, because the matter had been ventilated in the skeleton arguments and Mr Horan was well equipped to deal with the affirmation argument. On the other hand, were we to shut out Mr Kendall's point, that would preclude his client from the benefit of at least arguing that the Tribunal had reached that conclusion and reached it on a sound self-direction as to law. Accordingly we gave permission and directed that an amended answer dealing with this matter be lodged and served within seven days of the date of this hearing.

1. The judgment of the Employment Tribunal takes what is nowadays called a narrative form. As we have already indicated it is discursive at 35 pages in length, and unhappily we fear that it cannot be easily condensed so as to enable us in a few sentences to paint an adequate picture of what the case is all about. Accordingly we will need to take some time to explain the factual matrix.

1. The complaints ultimately being made by the Appellant, who is of mixed Finnish and Pakistani ethic origin, were set out extensively at paragraph 2 of the judgment, and used, to a considerable extent, as a framework for the narrative judgment which followed. At paragraph 2, which continues from page 3 to page 5, there are set out under various headings (adopted from those in the amended claim) the various complaints made by the Appellant. We hope we can avoid extensively repeating them all. They were condensed to an extent by the Employment Tribunal into the issues that are set out at paragraph 5 of the judgment in 11 paragraphs from page 6-7.

1. We can summarise them in this way. On the question of unfair dismissal, the issues were, (1) was there a breach of the implied term of trust and confidence; (2) did the Appellant resign because of that breach; (3) had there been waiver or affirmations of contract before resignation. As to race and sex discrimination the issues were, (1) had the matters complained of occurred; (2) were those matters on the ground of sex or race; (3) did they amount to less favourable treatment to the detriment of the Appellant. As to limitation the issues were, (1) were the matters complained of acts extending over a period of time; (2) were the complaints presented in time.

1. At paragraph 7 of the judgment the Employment Tribunal recorded Mr Horan's submission as to credibility and at paragraph 8 made findings in general terms about credibility. Paragraph 8, so far as material, reads:

"We do not doubt the Claimant believed everything she said in evidence was true and gave her evidence honestly. We refer ourselves to paragraph 8 of Dr Mahendra's letter to the Claimant's Solicitors dated 24 February 2010 in assessing the Claimant's credibility. We similarly accept that Mr Burden gave his evidence truthfully. We have some concerns about Mr Lacey and Ms Skinner. With the Respondent's witnesses we had some concerns regarding the evidence of Mr Arnold, Ms Knight, Ms Injac and Ms O'Leary but otherwise accept that the Respondent's witnesses gave their evidence truthfully."

1. Having given that pen picture as to the accuracy and credibility of the witnesses the Tribunal then set off on a long journey through the factual material in the case. We will do our best to compress it.

1. The Appellant, who had qualified as an arboriculturalist, started working for the Respondent in May 2004. Then or soon afterwards she found herself to be overworked. In early 2005 when she raised her situation with her manager, Mr Arnold, she was told that things would change for the better as the result of a project that was then taking place. In the office where she worked bad language was used routinely and this was not curtailed by management. Indeed the manager to whom she reported, Mr Arnold, was one of the offenders, although the Employment Tribunal found that he was not himself aggressive when he had told a colleague, "Just fucking do as I say".

1. In December 2006 there was an anti-Semitic incident in the office. The Appellant was not involved but was told about it. There was an investigation which resulted in a report called the Hickey Report. The Appellant gave some evidence to the investigator. In the office at a later time there was displayed a poster showing the distribution of non-white people in the area. When the Appellant complained about it, it was removed.

1. The Appellant worked on the client side of the business. The other side of the business was the contract side of the undertaking. As a result of the duties that she was given the Appellant came into contact with a Mr Keighley, who was a manager on the contract side of the Respondent's undertaking. They could not get on. Indeed, they could not get on to the extent the Appellant asked her manager to accompany her to meetings. He did do that but not always and meetings became fraught. At paragraph 18 of the judgment, the Employment Tribunal accepted that this was a result of the difficulties which each party – that is to say the Appellant and Mr Keighley – faced in doing their respective jobs. The contracting side of the business did not have enough resources to complete all the tasks required by the client side of the business. Friction was the inevitable result.

1. Towards the end of 2005 it was becoming apparent to the managers that the project we referred to above might not in fact have a beneficial effect on the Appellant's situation and the Employment Tribunal found that she had been told of this at about that time; see paragraph 17 of the judgment. In 2005 her manager became unwell and was off work and so she had to take on part of his role in addition to her own workload. She had discussions with Ms Knight, who was her manager's manager, about this. The Tribunal accepted that Ms Knight also used obscene language; see paragraph 18.

1. Arrangements were made by Ms Knight for the Appellant to receive assistance but that assistance did not fully materialise and the Appellant continued to do some of Mr Arnold's work. She had a particularly heavy workload at this time and although she had enjoyed and successfully completed a particular project, the combination of her work, the additional work of that project and her manager's work seem to have resulted in her becoming unwell. She was off work for three weeks at the end of 2005 and when she returned to work in the New Year she immediately became unwell again.

1. Ms Knight, who the Tribunal found not to have been unsympathetic to the Appellant, met her on 9 January and the Tribunal found Ms Knight told her that the Appellant would be relocated to a different location, namely to London Road (see paragraph 21 of the judgment). That was the office where Mr Keighly worked. The Tribunal found that although the Appellant was told this, no final decision had been made at that stage. The Appellant was plainly concerned about all this and when she came back to work the following day she had a discussion with Ms Knight about Mr Keighley. Ms Knight suggested the Appellant keep a diary of incidents and there was a discussion about raising a grievance, although the Employment Tribunal did not find that Ms Knight had suggested that a grievance should be raised (see paragraph 23).

1. The following day there were more discussions. This time these were about relieving the Appellant's workload although once again, little or no practical help was forthcoming. Matters moved on and in June 2006 there was a meeting about relocation. The Appellant was told that she was going to go to London Road and that she would be working with Mr Keighley amongst others. Her job title and job description would remain but some parts of her work would diminish. In fact, as time passed it became clear that her job title would change and by July 2006 she was aware that she was likely to be, in effect, a tree inspector; previously she had been a tree officer with a wider range of duties. She sought a new job description. None had arrived by July, although by then the Appellant knew that she would be in effect re-graded from her current grade of 4/5 to 5.

1. On 26 July a manager called Mr Crawley had a long meeting with the Appellant. During that meeting he lost his self control and shouted at her. Subsequently he apologised. On 26 July the Appellant received a revised job description and her job title was denoted as that of arboricultural officer. There were changes to her existing job description and she took the view that in essence her job was being deskilled.

1. She became unwell again and was off work for the month of August. On 24 September 2006, while she was a passenger in a car going to a work related event she alleged that the racially offensive term "wog" had been used. Given that is not an issue in this appeal we need say no more about it. On 1 December 2006, she raised a grievance. The Employment Tribunal quoted terms of the grievance at paragraph 39 on pages 15 and 16 of the Bundle. It was, the Employment Tribunal found, a grievance about the way that the project (to which we have already referred and which had resulted in the proposed relocation of the Appellant) had been handled. Mr Thakoordin, the minority member, was prepared to accept that the grievance revealed an underlying bullying culture; the majority were not.

1. On 6 December 2006 Mr Arnold and the Appellant went outside the premises in order to have a discussion. They drove off together in Mr Arnold's Land Rover down unmade roads on the Knebworth country estate. The vehicle travelled at considerable speed. The Appellant was frightened. When the vehicle halted there was a conversation; it became heated. Mr Arnold in effect told the Appellant that he did not wish to be involved. The Appellant then raised a complaint a couple of days later at a meeting with HR that she was being bullied and harassed.

1. By early January 2007 she had been told that Mr Keighley would be an assistant manager, but it was agreed that conditions would be imposed to regulate her working relationship with him. Also at that time a vacancy for a managerial post was advertised, but when the Appellant asked Mr Arnold about it he told her the job had been earmarked for somebody else.

1. During January 2007 the grievance was clarified. The Appellant made it clear that amongst other things it comprised complaints of bullying and harassment. As a result of the fact that there was, so far as the Respondent was concerned, a new dimension to the grievance, the grievance hearing, which was then imminent, was postponed.

1. In a letter which she wrote to the Respondent on 17 January 2007, the Appellant asked about the time limits for making claims to Employment Tribunals and was told by way of reply that it was not appropriate for the employer to advise her, but the suggestion was made that she should look on the relevant website. On 20 January 2007 a poster appeared in the office. It was displayed for nine days. It depicted a woman, described by the Employment Tribunal as of Asian/Mediterranean appearance with her mouth zipped. In manuscript the words, "If Only", had been added. The Appellant complained and it was removed. It transpired that it had been put up by a Mr Hunter, who was having a matrimonial dispute with his wife. The Respondent's position was that it had nothing to do with the Appellant.

1. To make matters worse for the Appellant, given her already fragile state of health, it came to her attention that a member of the public, who had been struck by a falling tree branch, had died. As the Employment Tribunal scrupulously avoided making findings about the cause of the death it seems unlikely that this death was in any way caused by any omission or inactivity on the part of the department, but nevertheless the Appellant became very upset about it. She wrote around this time complaining about her colleagues' "hurtful behaviour". She went off sick again on 30 January 2007 and when she returned the following day a remark was made by a Ms O'Leary about how nice it was to see her and that her hair looked nice. This she interpreted as being sarcastic although the Employment Tribunal did not find it to be so. She complained about the remark on 2 February and she went off sick again. She never returned to work.

1. She did have a series of counselling sessions and there was the intervention of the occupational health service. She was in receipt of sick pay for a period during her absence and throughout her absence there was, in being, a grievance procedure. It was not actively prosecuted either by the Appellant or by the Respondent; it meandered on through 2007. The Respondent's position was that it had ended by May 2007. Ultimately the Appellant's husband met management on 19 December 2007. By April 2008 there has still been no resolution and he wrote to say that the Appellant's trust and confidence in management had been "irrevocably eroded". He hoped the matter would be resolved without recourse to litigation. The Respondents passed the letter to their solicitors.

1. Throughout the period of her absence the Appellant provided medical certificates certifying her unfitness to work through illness. Finally, on 16 December 2008 she wrote a letter of resignation. The Employment Tribunal regarded it as an important document and quote extensively from it at paragraph 62 of the judgment. It is worth repeating it.

"I am writing to inform you of my decision to resign my post in the Parks and Amenities department of Stevenage Borough Council. I have reached a point where I feel that the council is not serious about resolving the issues I have raised over the last few years and I feel that I have no option other than to resign.

I loved working as a tree officer but the working environment, management failures and the way I have been treated during my employment have resulted in my losing two years to ill health at a critical time in my life. Even now it will take some time to recover from my experience of working at Stevenage Borough Council and it is likely that some aspects of my illness will be with me for life. I sincerely regret ever coming to work with this organisation.

Despite the efforts of both my husband and UNISON to bring this situation to a mutually acceptable resolution the council has failed to come to an acceptable compromise. I am, therefore, left with no other alternative than to pursue justice through the courts.

For the avoidance of any doubt, I look on the matters set out below as sex and race discrimination and, furthermore, part of a culture that at its best turns a blind eye to such discrimination and at its worse encouraged it.

My reasons for grievance are as follows in bold. I have included only a few examples for each as this would otherwise be exhaustive.

Furthermore, prior to, and following the submission of my grievance letters of 1st December 2006 and 28th January 2007, I had several meetings with D Williams and Diane Scott in which I discussed and expressed my feelings on all of the points below.

Please instruct payroll to release payment of accrued holiday pay to date and two months pay in lieu, as detailed by Glenys Stirk in her communications to Michelle Bradley. Also, please note my new address as I have recently moved."

1. The recitation of that letter closes the Employment Tribunal's long narrative of events.

1. The Employment Tribunal then went through the various complaints made under the headings of constructive dismissal, sex discrimination and race discrimination. Those headings had been set out, as we have already said, at paragraph 2 of the judgment. What the Tribunal decided was this: that so far as lack of information about the nature and extent of changes to her job was concerned, the Employment Tribunal accepted she had not been given all the information. So far as her complaint that she had been passed over for promotion by being discouraged from applying for the Green Spaces Project Manager position, the majority concluded that she had not; the minority, Mr Thakoordin, thought that the fact she was told that the post was earmarked for somebody else meant there was little point in her applying for it and that did in fact mean that she had been passed over. All members accepted that she was overworked. The majority also accepted that she had been told that if she was unhappy she should consider leaving, but they found that was a constructive statement and not a component of any breach of contract. Mr Thakoordin regarded that as being something which the Appellant was bound to interpret as a suggestion she should leave, and thought it might form a component part of a breach of contract.

1. The Employment Tribunal accepted that there had been a remark made by a woman when the Appellant arrived for work, and we quote, "Good morning bitch", and that there was loud conversation in the office; that obscene language was commonplace in the office and that a manager had said to a colleague, "Just fucking do as I say". The majority regarded that latter statement as an acceptable exhortation to a colleague; Mr Thakoordin took the view that it was totally unacceptable and would be offensive to anybody in earshot.

1. The Tribunal examined in some detail the grievance procedure. The delays in progressing the grievance raised by the Appellant were found to be both explicable and excusable and it was held that the Respondent had acted reasonably, particularly against the background of the Appellant's recurrent ill health.

1. So far as sex discrimination was concerned, the Employment Tribunal concluded that there had indeed been an unhappy relationship with Mr Keighley, but those difficulties stemmed from the fact that each was doing his or her respective jobs. The situation would have been no different had the person doing the Appellant's job been a man, and they concluded that there was no less favourable treatment on the grounds of sex.

1. So far as the incident with Mr Crawley (who lost his temper) was concerned, the majority noted that Mr Crawley had also had an ill tempered meeting with the male chief executive and that Ms Knight had lost her temper with the Appellant. Consequently the majority concluded that there was no less favourable treatment on the grounds of sex. The minority member, Mr Thakoordin, took the view that Mr Crawley would have behaved differently towards a man (see paragraph 64.2). So far as the Land Rover incident with Mr Arnold was concerned, the Employment Tribunal accepted that it was frightening but the majority could not see how it related to the Appellant's gender. Mr Thakoordin took the view that it was gender stereotypical behaviour and that it was evidence of sex discrimination (see paragraph 64.4).

1. All members of the Tribunal found the discouragement of the Appellant from applying for the Green Spaces Project Management vacancy not to have been caused by or derived from her gender. There was a difference of view as to the display of the poster. All members of the Employment Tribunal agreed that women would have found it more offensive than men, and concluded that it did amount to less favourable treatment of the Appellant on the grounds of her sex; see paragraph 64.6. But when it came to deciding whether this was a policy of discrimination or, perhaps putting it in the terms used by the Court of Appeal in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, that it was a continuing act, Mr Thakoordin thought it was. He concluded that the Hickey Report showed that equal opportunity policies were not properly enforced and the time, namely nine days, over which the poster was on display was further evidence of that. So he came to the conclusion that there was a policy of discrimination.

1. The Tribunal made findings in relation to the race discrimination allegations but it is unnecessary for us to go into those.

1. The unfair dismissal claim was considered in terms of conclusions at paragraphs 66-70. Having regard to the excessive workload and what is called a "culture of crassness" in the working environment and, as it seems to us to a limited extent, to the failure on the part of the Respondent to answer some of the Appellant's queries about her new job and status, the Employment Tribunal concluded that there had been a breach of the implied term of mutual trust and confidence. Mr Thakoordin would have added that it was a breach of the mutual term as to trust and confidence to have moved the Appellant from the client side of the business to the contractor side of the business. Presumably what he had in mind must have related to the relationship with Mr Keighley, but that is not apparent from paragraph 66 of the judgment.

1. The Tribunal said this at paragraph 67:

"Although the Claimant did not resign for a considerable period i.e. some twenty two and a half months after becoming unwell at the end of January 2007, she had been unwell during that period and as referred to by Mr Burden in his letter in April 2008 was unlikely to return to her position. We accept that the Claimant resigned because of the breach of the contractual term. Subject to our deliberations on the time point we would find that the Respondent dismissed the Claimant within the meaning of Section 95 (1) (c) Employment Rights Act 1996 and that the dismissal was unfair contrary to Section 98 of that Act there being no potentially fair reason for dismissal, or fair dismissal procedure."

1. Therefore the Employment Tribunal concluded that there had been a dismissal. But the Tribunal went on the hold that the complaints were out of time. As we have already indicated, it is agreed that that was an erroneous conclusion. Paragraph 70 reads:

"The majority of the Tribunal find that the Claimant delayed too long in resigning her employment and then presenting her claim to the Tribunal. On 24 May 2007 the Claimant was in communication with her union in respect of the grievances and the Occupational Health Service had advised that the Claimant was well enough to deal with those grievances. The majority find that at that stage, and certainly by the date of her resignation, the Claimant had waived the breaches of contract. The Claimant was always aware of the matters she complained of, her ability to bring a claim to the Tribunal and was able to liaise with her trade union representative in May 2007 and provide information to Mr Hickey in June 2007. For those reasons the majority also find that it was reasonably practicable for the Claimant to present her claim within the normal time limit. The complaint of unfair dismissal is out of time and thus the majority find that the Tribunal did not have jurisdiction to consider it."

1. At paragraph 71, Mr Thakoordin's minority decision as to the reasons why the complaint had not been submitted earlier is set out. His conclusion, like that of the majority, can be seen in one of three ways; it either relates to affirmation and waiver or it relates to reasonable practicability, or it relates to both.

1. So far as the chronology of the sex discrimination was concerned, paragraphs 72, 73 and 74 deal with that matter. Of course the statutory tests are different but the Employment Tribunal had clearly referred themselves to the relevant statutory provisions. Paragraph 68 refers to section 111 in the context of dismissal and paragraph 72 refers to section 76 in the context of sex discrimination. What the Tribunal were clearly doing at paragraphs 72-74 is considering whether or not it was just and equitable to extend the time, having found that the sex discrimination act was not a continuous act.

1. Mr Horan submits that, in relation to unfair dismissal, the Employment Tribunal have quite clearly misdirected themselves as to affirmation in paragraph 67-70 of their judgment. The problem can be seen throughout those paragraphs but it becomes particularly acute, submits Mr Horan, at paragraph 70, where it is quite obvious that the Tribunal are using the concepts of waiver, as they put it, and the statutory exception of whether or not it was reasonably practicable to present the claim in time, interchangeably. There is, in short, a confusion or worse still a conflation, as between the two concepts.

1. Given the concession referred to above, it is accepted by all that the Employment Tribunal is wrong as to the time limit point in the context of unfair dismissal. Mr Horan submits that what must be left is a finding of dismissal at paragraph 67 with, in paragraph 70, a finding of waiver (set out in the third sentence of paragraph 70 to which we have already referred). This, he submits, is a situation that the Employment Tribunal arrived at without properly directing itself as to all the factors that need to be considered in relation to waiver or, as we would prefer to call it, affirmation.

1. Mr Horan pointed us to the well known authority of W E Cox Toner (International) Ltd v Crook [1981] ICR 823; IRLR 443 and he referred us also to paragraph 523 from Harvey (which in the electronic version appears in division D1 under the letter F), where the Cox Toner case is discussed, and paragraph 524 and 526, where the Bashir v Brillo Manufacturing Company Ltd [1979] IRLR 295 case is discussed. All this led, he submitted, to the view that affirmation raises multifaceted issues and depends upon the circumstances of the case. It cannot be decided simply on the question of delay. We cannot, he submitted, be confident that the Employment Tribunal really did approach the question of affirmation correctly given that they had conflated it with the issues to be decided in respect of reasonable practicability under the statutory provisions of section 111.

1. Moreover, the way in which the judgment is laid out, particularly at paragraph 70, does not represent adequate reasoning in terms of the contents of a judgment. His final submission was that this was, in effect, a perverse judgment in that it was one that no reasonable Tribunal properly directing itself could have arrived at on the evidential material.

1. We also ought to mention Mr Horan's submission that although there had been considerable evidence as to this issue of affirmation, because it had become mixed up with the issue of reasonable practicability it had never been properly addressed in evidential terms. He took the view that the case had not been properly put to his client and that she had not had a proper opportunity to deal with the proposition that she had affirmed the contract.

1. So far as sex discrimination was concerned, his submissions started with an analysis of what might be described as the template provided by the Court of Appeal in the case of Igen v Wong [2005] IRLR 258. The template is to be found in the annexe. His case had been that this was a rogue department. That submission ought to have suffused all the individual aspects of the case that were being examined by the Tribunal under the various discrete headings that it had derived from the amended claim and had set out in paragraph 2.

1. Instead of adopting the step by step approach laid out in the annexe to Igen v Wong, of finding the facts, of seeing what inferences were to be drawn and of seeking, if the inferences required, a reason why things had been done from the Respondent under the reverse burden of proof, the Employment Tribunal had simply adopted the narrative form of the judgment and moved from one separate incident to another, without either connecting them together or realising that they should be examined under a broad umbrella.

1. In particular there was a failure on the part of the Employment Tribunal to consider the questionnaire, to consider the codes of practice and to consider the inadequate implementation of equal opportunities policies in respect of each of these matters. At one point it seemed to us as though Mr Horan was submitting that the Igen v Wong template and these matters were in essence a freestanding and independent element of sex discrimination, but on balance we interpret his submission as being a criticism of the Tribunal for not having set their factual examination into a proper analytical matrix as suggested by Igen v Wong and as would necessarily incorporate factors such as the questionnaire, code of practice and the inadequate implementation of policies.

1. Those were the submissions that Mr Horan made in respect of ground 4 of the grounds of appeal, he not having pursued ground 3. Ground 5 was in effect subsumed into the submissions that he made on ground 4. As for his other two grounds, ground 6 related to the continuing act and ground 7 related to the time limit point. So far as continuing act was concerned, Mr Horan pointed out that the Employment Tribunal had really failed to appreciate, by reference to his previous submission, that there was a background of inadequate policy implementation that represented a continuum so far as the Respondent was concerned. This had really been the conclusion of the minority member, who had recognised Mr Horan's submission about this being a rogue department. The majority, despite his submissions having been set out with care in both written and oral presentations, had failed to acknowledge that fact.

1. So far as ground 7, the time limit point, was concerned, Mr Horan's submission was that paragraph 74 showed that the Employment Tribunal were just misdirecting themselves as to the exercise of their discretion. The second sentence at paragraph 74 states, "the Respondent is entitled to rely on the statutory time limit for bringing claims." This, said Mr Horan, was really not a sound analytical approach to the question when what was being considered was the exercise of discretion. So the Tribunal had started from the wrong point; paragraph 74 shows there was a misdirection.

1. Mr Kendall on behalf of the Respondent submitted that although it was apparent that the Employment Tribunal had conflated the issues of statutory time limit and affirmation, there were quite clear findings that supported the conclusion that the Employment Tribunal had entirely correctly and soundly concluded that there had been affirmation. The third sentence of paragraph 70 was the best example of that. That it is a finding of affirmation or waiver made in alternative terms as to the date does not matter, submitted Mr Kendall. What is clear is that the Tribunal, in the majority, had reached the conclusion that there had been an abandonment, in effect, of her right to treat the contract as ended. The Appellant had chosen to carry on with it. The Employment Tribunal had directed themselves at paragraph 68 quite properly, that being absent from work while being paid sick pay does not of itself affirm or waive a breach of contract, and that indicated the Employment Tribunal had quite properly addressed itself in terms of the factual circumstances.

1. Mr Kendall, quite understandably, was exercised by the suggestion that he had not put his case on waiver or affirmation to the Appellant, and he took us to material that indicated that he had indeed dealt with the evidential aspect of the case. What had been lost sight of, he submitted, in Mr Horan's submission, was the fact that in 2007, certainly after May, the grievance was dormant. It had not been actively pursued by the Appellant and it had gone into a state of hibernation. He put it higher than that; there was, he submitted, no grievance after May 2007 and therefore no reason for the contract to remain on foot.

1. So far as discrimination was concerned, Mr Kendall submitted that the submissions made by Mr Horan as to Igen v Wong and the terms of the annexe, whilst setting out parameters for Employment Tribunals, did not of themselves constitute a rule of law or practice. Sometimes Employment Tribunals will find it unnecessary to move through the various stages of the Igen v Wong analysis. Mr Kendall referred us to the case of Brown v London Borough of Croydon [2007] ICR 909, where the Court of Appeal approved in paragraphs 40-41 what had been said by Elias J (President), that it was not always necessary to have a twofold approach to the issues of sex discrimination and the question as to whether and when the burden of proof moved. Here, the majority of the Employment Tribunal had plainly asked themselves in respect of each of the incidents whether or not the reason why things had happened originated in the gender of the Appellant.

1. Upon analysis of the discrete findings as to the allegations of discrimination, Mr Kendall submitted that it was apparent that the Employment Tribunal in its majority decision had reached a conclusion that there was a gender neutral explanation as to why any particular matter had occurred.

1. As to the main theme of Mr Horan's submission, that there had been a failure to adopt the scheme set out in the annexe in Igen v Wong and no recognition of failures in relation to the questionnaire or the code of practice, and not much recognition as to the Hickey Report – that is to say the report relating to the anti-Semitic incident – Mr Kendall had two responses. First, he submitted that so far as the Hickey Report was concerned the Employment Tribunal certainly had recorded the recommendations that had been made in respect of it and had analysed it, but must be taken to have come to the conclusion, in the majority decision, that this was not a rogue department. The Hickey Report was referred to at paragraph 61 and the Employment Tribunal cannot be said to have overlooked it. It is of course correct that the minority took a different view of it to the majority, but that is something that happens from time to time in Tribunals of first instance reaching decisions on factual matters.

1. The other response which Mr Kendall made was that it is all very well to speak of the template in Igen v Wong and the need to factor in such matters as the questionnaire and any failures relevant to it, the codes of practice and any departures from it, and the failure to implement equal opportunity policies in terms of any particular department or any particular organisation. But until these are rooted to the bedrock of allegations made in a case they cannot of themselves be anything other than spectres floating in the atmosphere. They are not, submitted Mr Kendall, themselves matters of sex discrimination; they are simply prisms through which a Tribunal should consider specific allegations that had been made. Contrary to Mr Horan's submission, Mr Kendall argued that the Employment Tribunal had plainly had these factors in mind in answering the questions, and on the factual material in this case it had been perfectly legitimate to compress the stages of Igen v Wong into really asking why did this or that happen. There was no error of law in that; it was a perfectly permissible approach in this factual context.

1. So far as the continuing act referred to in ground 6 was concerned, although the Appellant had succeeded on the poster incident, what was necessary was an action that could be regarded as continuing into the limitation period. The poster incident had been a discrete incident, it had ended in 2007, and it could not be made by any reference to Igen v Wong or the questionnaire and its imperfections, or the codes of practice or anything else, to continue and have any sort of life after it was taken down.

1. So far as limitation was concerned, what he submitted the Employment Tribunal were really having in mind in paragraphs 72-74, was that there had been a very long time that had elapsed. He did not accept that the second sentence of paragraph 74 involved any misdirection by the Employment Tribunal. Plainly the issue is essentially one of prejudice and here the Employment Tribunal had been entitled to conclude that the Respondent was prejudiced to a greater extent than the Appellant by the matter drifting on.

1. We have reached the following conclusions. So far as the question of affirmation is concerned, despite the fact that Mr Kendall can point to the clear conclusion in paragraph 70 that there had been a waiver of the breach of contract, we have come to the conclusion that the conflation of the common law concept of affirmation (or waiver as it is sometimes and in this case has been called) and the statutory exception that it was not reasonably practicable to have submitted the complaint within the time limited for doing so, makes it questionable as to whether the Employment Tribunal has properly directed itself in relation to the issue of affirmation.

1. Paragraph 70 is very much presented in terms of delay. It is correct that the Tribunal has warned itself that sick pay on its own is neither one thing nor the other so far as affirmation is concerned, but it seems to us that much of what is said from paragraph 66 to paragraph 70 serves two masters to too great an extent. In our judgment, what the Employment Tribunal needed to concentrate on in relation to affirmation was not simply the Appellant's delay but a whole series of factors relating to why a resignation was not submitted before December 2008. Delay was one factor, illness was another, the grievance procedure was a third. Also relevant, but apparently not considered in relation to these four paragraphs of the judgment, would be the discussions as to whether or not there could be some accommodation reached. That appears not to have been explored.

1. No doubt there were difficulties because perhaps some of these discussions were without prejudice. What is to be made of those? Mr Kendall submitted that they were matters that the Employment Tribunal was entitled to take into account in deciding that there had been waiver. That would be a much more powerful point if it was clear that is what paragraph 70 had had in mind. But it seems to us that these factors have not been considered at all by the Employment Tribunal and we conclude that the Employment Tribunal misdirected itself by, in effect, considering these two concepts simultaneously and not examining them separately. They do not have the same components; reasonable practicability is a very different concept to affirmation, and we have come to the conclusion have erred in law and that the appeal should be allowed on that point.

1. So far as sex discrimination is concerned, we have looked carefully at the judgment of the Employment Tribunal as criticised by Mr Horan. We do not shrink from saying that it would have been a great deal better if the structure of the judgment of the Employment Tribunal bore more of a resemblance to the stages set out in Igen v Wong, or had dealt with some of the issues that were raised by Mr Horan. Ultimately, however, it seems to us that the question is whether or not there was an error of law in the majority decision in relation to the discrete matters that were set out. If there was no error by the majority of the Tribunal in relation to those matters, we accept Mr Kendall's submission that whether or not the structure followed the Igen v Wong analysis, or whether or not there was a discourse as to the questionnaire or the code of practice, are matters that really could not amount in themselves to sex discrimination and would not amount in themselves to any misdirection on the part of the Employment Tribunal.

1. It seems to us that the Tribunal, when it asked itself why certain things had happened, was analysing relatively straightforward incidents of human intercourse and was entitled to adopt a relatively straightforward way of answering the question, why had this occurred. This is what the Tribunal did in relation to Mr Crawley and Mr Keighley and Mr Arnold. In each of those instances the Tribunal asked itself the question, was there less favourable treatment on the grounds of sex; what was the reason why this happened? They came to the conclusion that it happened in Mr Crawley's case because he lost his temper with other people; that was something that was not gender-specific; Ms Knight was quite capable of losing her temper with other people. In Mr Arnold's case there had been nothing in his behaviour that related to the Appellant's gender. His behaviour was largely conditioned by his own embarrassment as to having got himself involved in this difficult situation by, as will be recalled, at a very early stage encouraging the Appellant to believe that some good would come of the project and then finding himself in the uncomfortable position that the project in fact was leading to nothing but adverse consequences for the Appellant. In those circumstances people can behave badly without any gender issue. That is what the majority of the Employment Tribunal concluded and we do not think that they can be said to have erred by doing so.

1. Likewise Mr Keighley's relationship with the Appellant originated in the tensions of the workplace. The Tribunal thought that was not gender-specific and we cannot find any error in the conclusion that they arrived at.

1. So far as the poster is concerned, the Tribunal came to the conclusion that it stood by itself. Mr Thakoordin took the view that it had some sort of continuity because it was connected to the inadequate implementation of policies relating to equal opportunities as reflected in the criticisms made of management by the Hickey Report. Plainly there were two views about this. Ultimately this is a question of fact for an Employment Tribunal. It seems to us the majority cannot be criticised for taking a different view and no error arose in relation to the Tribunal's decision that that was not a continuing act.

1. It is perfectly true, as Mr Horan submitted in his reply, that if there is a continuing act it is taken to end by virtue of section 76(6)(b) and time is taken to run from the time that the act ends, but if there is no continuing act then that section cannot help Mr Horan and we cannot find that the Employment Tribunal were in any way in error to reach the conclusion that this was just a discrete incident and was not a continuing act.

1. Nor do we think, insofar as it is still relevant having regard to the fact that there was no continuing act and the Tribunal were correct to find there was none, that paragraph 74 discloses any error in relation to the exercise of the discretion as to whether or not it was just and equitable to extend time. The second sentence of paragraph 74 seems to us to be, in its terms, correct. Any litigant is allowed to rely on the statutory time limit. Mr Horan's criticism of it is that it is meaningless when there is a potential for the statutory time limit to be extended by reference to discretionary concepts such as what is just and equitable. No doubt he is right about that but we think that the Tribunal were doing no more than balancing the various competing prejudices.

1. The prejudice to the Respondent, as the Employment Tribunal saw it, was that it had to deal with a case a considerable time after it was reasonably entitled to conclude it would not have to do so. It seems to us that this was a factor that the Employment Tribunal is entitled to take into account. Moreover, on analysis, it may mean no more, as Mr Kendall submitted, than that the Respondent had to consider this matter over a long period of time. The discretion under section 76(6) is to be exercised, whether along the lines of section 33 of the Limitation Act or by reference to principles that go back to the Roman Republic, namely there should be a finite time in which to the bring claims, and that the longer the time, which has elapsed between a potential claim and the bringing of the claim the more likely there is to be prejudice. That is a well established and antique concept, and we do not think the Employment Tribunal fell into error at paragraph 74 by applying it.

1. What then is to be done? Mr Kendall submitted that the matter should go back to the same Employment Tribunal; Mr Horan submitted the contrary. We have to bear in mind the judgment of this Tribunal in Sinclair Roche and Temperley v Heard and another [2004] IRLR 763. This is a case that has been going on for a very long period of time. No doubt it continues to cause the Appellant considerable distress and it ought to be dealt with as expeditiously as possible. All that points to the matter going back before the same Tribunal because they have heard all the factual material, and can no doubt deal with this in a short compass.

1. On the other hand, they have reached what we have concluded was a misdirected decision, and the question may be raised as to what extent they would have an open mind about the matter. It seems to us that the fact this was a majority decision is a very significant factor in this case. It seems to us that it is one thing for a case to go back to a unanimous Tribunal; they ought to be able to keep an open mind. One would not want to read too much into the fact that it took three days of deliberations for this decision to be produced but plainly there has been a disagreement, and, on the face of it, a considerable disagreement between members and in those circumstances it seems to us that the wisest course is for it to be remitted to a differently constituted Employment Tribunal.

1. The appeal will be allowed on the constructive dismissal point and dismissed on the sex discrimination point. The constructive dismissal matter will be remitted to consider the question of affirmation. Evidence can be called in relation to the period from the beginning of 2007 to the date of resignation in 2008 and the Employment Tribunal should ask itself on that evidence whether or not the Appellant affirmed the contract.