The claims for unfair dismissal had arisen from alleged failures to handle properly grievances and a graded return to work programme. The claimant had been on stress-related sick leave from 2004 while allegations of discriminatory treatment by colleagues were investigated and confidentially settled in 2006. As she was preparing to return to work two emails were sent to colleagues by a union representative and the Chief Fire Officer revealing the existence of the settlement but undermining the claimant's allegations. A grievance relating to these emails was instigated but subsequently withdrawn. During 2007, several aborted attempts were made to return to work but by August she was warned that employment might be terminated on incapability grounds. The defendant's further suggestions for a return to work failed, and following a refusal of a grievance review, the claimant resigned in May 2008.  The ET found that she had been constructively unfairly dismissed but the EAT accepted the defendant's appeals on 4 out of 7 grounds. Most crucially, the EAT accepted the ground that the ET had incorrectly found a breach of implied trust and confidence in relation to the grievance following the circulation of the emails where in fact the breach had come to an end following its withdrawal.

In this appeal, counsel for the defendant appellant concentrated on this ground and submitted that the claimant had delayed too long in resigning if her claim was based on the emails, and that there was therefore no need to remit the case. Rimer LJ agrees broadly because the EAT had not explained their decision, the claimant had not advanced arguments about her wider complaints before the EAT after the ET's findings were appealed and the claimant had affirmed her contract by continuing employment for 12 months after the alleged repudiation.  There was therefore no justification for the claimant to have "a second day in court at which she might hope for a better result on her wider complaints than she achieved on the first."

______________________

Neutral Citation Number: [2010] EWCA Civ 1402

Case No: A2/2010/0337

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

His Honour Judge Birtles, Mr K. Edmonson JP and Ms N. Sutcliffe **[

UKEAT/0303/09/RN , BAILII: [2010] UKEAT 0303_09_2501

]()**Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 16/12/2010

Before :

LORD JUSTICE RIMER

and

LADY JUSTICE BLACK

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Between :

DEVON AND SOMERSET FIRE AND RESCUE SERVICE (Appellant)

- and -

SANDRA TILKE (Respondent)

• - - - - - - - - - - - - - - - - - - - -

Mr Nicholas Sproull (instructed by Mr Stephen Lynes, Legal Services, Cornwall Council) for the Appellant

Mr Angus R. Gloag (instructed by Lyons Davidson Solicitors) for the Respondent

Hearing date: 5 November 2010

• - - - - - - - - - - - - - - - - - - - -

Judgment

Lord Justice Rimer :

Introduction

1. This appeal, by Devon and Somerset Fire and Rescue Service ('the Service'), is against an order dated 25 January 2010 of the Employment Appeal Tribunal (His Honour Judge Birtles, Mr K. Edmondson JP and Ms N. Sutcliffe). The respondent is Mrs Sandra Tilke. The appeal tribunal thereby allowed, on four grounds, the Service's appeal against the judgment dated 8 May 2009 of the Exeter Employment Tribunal (Employment Judge Parker, Mr M.B. Gurney and Mrs E.A. Uppington) that the Service had unfairly dismissed Mrs Tilke.

1. Thus far one might wonder why the Service rather than Mrs Tilke is the appellant. The answer is that, by its order, the appeal tribunal remitted Mrs Tilke's unfair dismissal claim for a re-hearing by a differently constituted employment tribunal. The Service asserts, however, that the logic of the appeal tribunal's reasons for allowing its appeal required it simply to dismiss her claim. The point is ultimately a relatively short one but it is necessary first to set the scene in which it arises.

The facts and the decision of the employment tribunal

1. I take the facts from the reasons of the employment tribunal, which were sent to the parties on 11 May 2009. The tribunal described the facts as complex and wide-ranging but it reduced them to those it regarded as relevant for the disposition of the issues before it. I shall reduce them even further.

1. Mrs Tilke is a former employee of the Service. She resigned from her employment on 13 May 2008 following which she brought claims against the Service for breach of contract, unpaid wages, sex and disability discrimination and constructive unfair dismissal. The hearing before the employment tribunal occupied seven days in February and March 2009. The outcome was that the tribunal dismissed all claims apart from the unfair dismissal claim, which it upheld. Mrs Tilke's appeal to the appeal tribunal against the dismissal of her other claims was dismissed on the papers at the sift stage. The only substantive issue with which the appeal tribunal became concerned was the Service's appeal against the decision on the unfair dismissal claim. Mr Angus Gloag has represented Mrs Tilke, and Mr Nicholas Sproull the Service, at all stages of the proceedings.

1. Mrs Tilke's employment began in 1996. At that stage the Service was represented by two separate organisations that later amalgamated. She was originally a Fire Control Operative but in 2001 re-trained as an Operational Firefighter, stationed at Barnstaple. In 2002 the Fire Brigades Union, of which Mrs Tilke was not a member, organised a national strike. Following the strike, Mrs Tilke brought employment tribunal proceedings against the Service alleging that she had been subjected to discriminatory treatment by her colleagues. Her claim came on for trial in October 2006 and she gave evidence. Before any evidence from the Service was heard, her claim was settled on confidential terms. Mrs Tilke had been on stress-related sick leave since December 2004, but it was agreed that she would return to work, as she did in late 2006 although it was not until March 2007 that she embarked upon a return to active service under a graded 'return to work' programme.

1. Mrs Tilke's unfair dismissal complaints derive ultimately from two emails circulated to the Service's staff immediately after the settlement of those tribunal proceedings. The first, dated 1 November 2006, was from David Chapple, the Exeter Branch Secretary of the Union. It explained that Mrs Tilke's claim had been settled before the Service's evidence had been heard. Its thrust was that she had thrown sufficient mud at the Service to create the risk that some of it might stick and that Mr Chapple considered the Service should make a public pronouncement rejecting her allegations. He had made a witness statement in the proceedings which he attached to his email, which the tribunal said 'refutes' many of Mrs Tilke's statements, although I suspect the tribunal meant that it 'disputes' them. Mr Chapple asserted that Mrs Tilke had over-reacted in perceiving that she had been the victim of discrimination. The second email was the work of Paul Young, the Chief Fire Officer and head of the Service. On 6 November 2006 he too circulated it to the staff. He made clear his views as to the merits of Mrs Tilke's settled claim, saying that 'it became apparent following extensive cross-examination that the case could not be proven.'

1. Mrs Tilke complained about both emails and there followed correspondence between her and Mr Young about them. She was not satisfied with the response. At the same time consideration was being given to her return to work programme and on 3 January 2007 she emailed Mrs Endacott, the Service's Senior HR officer, asking in that connection to be transferred to the Blue Watch at Exmouth, adding on 10 January 2007 a request to a transfer to the White Watch at Exmouth (firefighters work on shift systems under which they are allocated to one of four watches). On 17 January 2007 she explained to Mrs Endacott that she considered that a transfer to Exmouth would give her the chance to make a fresh start and put her problems at Barnstaple behind her. I should mention, since it is material background to the whole story, that Mrs Tilke was suffering from a disability within the meaning of the Disability Discrimination Act 1995, the tribunal describing it as:

'… a generalised anxiety disorder which includes a moderate-severe post traumatic stress reaction with additional symptoms of reactive clinical depression and anxiety.'

1. On 10 January 2007 Mrs Tilke presented a grievance in respect of the two emails to Peter Newman, Group Commander at Barnstaple. They had a meeting and he told her that if she persisted with it, others at the Service headquarters might make life difficult for her. At his request, she then set out in writing what she wanted to achieve from the grievance procedure. She explained that she wanted an investigation into their circulation, asserting that Mr Chapple's email was directed at stirring up ill-feeling towards her and that Mr Young's email contained a misleading account of the outcome of the tribunal proceedings. Mr Newman responded by saying that there would be a review of the Union's use of the Service's IT system and that Steven Pope (the Service's HR manager) had endorsed the sending of Mr Young's email bearing in mind the 'high profile' of the case in the media. The tribunal considered that this response did nothing to redress the balance in favour of Mrs Tilke and saw force in her case that her return to work was being set up to fail.

1. On 7 March 2007 Mrs Tilke issued a further grievance in respect of the emails under Stage 2 of the Service's grievance procedure. She asserted that Mr Chapple's email would have a direct effect on her return to work and complained that she had been followed by private investigators instructed by the Service.

1. There was a meeting on 16 March 2007 to discuss Mrs Tilke's return to work. Notes of it were not sent to her for her consideration or approval, which the tribunal said was a common feature of the case. On 19 March 2007 Dr Dean (instructed by Devon County Council's Occupational Health Department) wrote to the Service with his advice as to her return to work, including that initially it would be inadvisable for her to work at the Exeter or Barnstaple fire stations, where she had experienced difficulties. On 21 March 2007 Mrs Endacott wrote to Mrs Tilke saying that her return to work would be at Exmouth, starting on 21 March 2007.

1. On 29 March 2007 Mr Newman wrote to Mrs Tilke in response to her Stage 2 grievance. Mr Chapple was to be told of the impact created by his email. As for Mr Young, Mr Newman's position was that Mr Young had had the authority to inform the employees of the matters that he did and his email reflected the Service's perspective. Mr Young was apparently ready to meet Mrs Tilke to re-assure her of his commitment to assist in her return to work, but the tribunal's finding was that he had either failed to appreciate, or refused to acknowledge, the impact that his email must have had upon her.

1. Mrs Tilke did two days work on 21 and 28 March 2007, in accordance with her return to work plan. 28 March was the first of a two-day tour of duty but she was off sick for its second day on 29 March. Mr Oaker circulated a number of people on 30 March with an ostensibly impatient letter about such absence. Mr Young wrote to Mrs Tilke on the same day assuring her that action would be taken against those abusing the Service's email system, but saying nothing about his own email, which the tribunal regarded as the more damaging of the two offending emails. It found that, as regards that email, her grievance remained unaddressed.

1. On 29 April Mr Hartrick, the Exmouth Group Commander, produced an essentially positive progress report on Mrs Tilke's return to work. Between 21 March and 28 April 2007 she did eight days work in accordance with a graded return to work plan, with one day's absence for sickness, although at the end of April she again went on sick leave, not returning to work until 31 May, when she did a two-day tour of duty. In the meantime she had lodged an appeal against the outcome of her Stage 2 grievance, which would have been heard on 23 May but for her then absence on sick leave. Mr Young's report for the appeal did not, the tribunal found, address the rights and wrongs of his own email. There was then an important event in the story: on 24 May 2007 Mrs Tilke withdrew her grievance, saying it was affecting her health.

1. Another, inconclusive, return to work meeting was held on 31 July 2007. The Service was intending at that meeting to give Mrs Tilke notice of a disciplinary investigation with regard to a complaint that Dr Dean had made about her. In the event, no notice was given since it appears that Dr Dean withdrew his complaint, although he was not prepared to see Mrs Tilke again. She knew, however, that he had made allegations against her, the Service having told her of them in a letter of 26 July 2007.

1. Following the meeting Mrs Tilke emailed Mrs Endacott to tell her that she was reluctant to attend any further return to work meetings without first receiving medical advice as to whether she was equal to doing so. She failed to attend a meeting fixed for 7 August, about which Mr Walker wrote her a letter of complaint on 8 August. He thereby told her he was re-scheduling the meeting for 14 August, warning her that if she failed to engage in the return to work process without due cause, dismissal proceedings might follow. The tribunal said that he had apparently overlooked what she had said about her state of health. Mrs Tilke did not attend the re-scheduled meeting, her GP certifying her as unfit because she was suffering from a stress reaction.

1. Mr Pope wrote to Mrs Tilke on 22 August warning her that her employment with the Service might have to be terminated on the grounds of incapability. He arranged, and she attended, a meeting on 5 September at which there was a discussion as to the fire station at which she might work. On 1 October Mr Walker wrote to Mrs Tilke indicating that the Service would be investigating Dr Dean's complaint against her. She was suspended on full pay as from 6 October. Mr Walker wrote to her on 24 October informing her that there was to be a disciplinary meeting on 1 November at which her capability to continue work for the Service would be considered.

1. Mrs Tilke lodged a second grievance on 30 October complaining that the Service's handling of her return to work had had a severe impact on her health. The disciplinary meeting took place on 1 November, when a question was raised as to whether she might work at the Taunton station. The Service perceived a practical difficulty (which the tribunal explained) in continuing to operate her return to work programme on the basis of a single watch at Exmouth. Mrs Tilke was not, however, prepared to undertake the programme other than at Exmouth and so the Service considered it needed another medical opinion.

1. On 2 November Mrs Tilke was signed off work with anxiety and depression. She pursued her second grievance to a hearing on 18 January 2008, when it was dismissed. She appealed against that dismissal on 7 February and the hearing was on 17 March. On 20 March she was told that it had been dismissed. She sought a second stage appeal on 1 April, which was declined on 16 April. Mr Young's letter doing so stated that, having considered the grievance, the Service was of the opinion that it did not constitute a serious or exceptional case where there was a possibility of major problems of culture or management style (I do not fully understand the sense of that and the tribunal does not explain it). Her request for a review of that decision was refused on 6 May, and she resigned her employment on 13 May. In the meantime she had raised yet another grievance on 12 December 2007 as a result of the Service's failure to appoint her to a post in Exmouth upon the recent retirement of a colleague. That grievance was not accepted either. The tribunal made no detailed findings about it.

1. I need not rehearse the tribunal's reasons for rejecting Mrs Tilke's claims for sex and disability discrimination, breach of contract and unpaid wages. It dealt with her unfair dismissal claim in paragraphs 52 and 53, occupying over two single-spaced pages of reasons. Mrs Tilke's case was that the Service had breached the implied duty of trust and confidence owed by an employer to its employee, any such breach being repudiatory of the employment contract. She placed reliance on the two November 2006 emails. Mr Chapple's email was not, however, an act carried out by the Service, and so the real point there had to be as to what the Service should have done about his misuse of the Service's IT system. The other email was very different. It came from Mr Young, the Service's Chief Fire Officer, and it informed the staff that Mrs Tilke had brought groundless tribunal proceedings against the Service that would have failed if pursued to judgment. The tribunal continued in paragraph 52:

'Thus, it was said, she had brought an ill-founded and very serious claim of sex discrimination by way of victimisation and harassment against her employer and had made ill-founded allegations against many of the persons with whom she used to work. We have no hesitation at all in saying that that was an act not merely likely to destroy or seriously damage the relationship of trust and confidence but calculated to do so. The effect of Mr Chapple's email [sic: I presume the tribunal meant Mr Young's email, which was the subject of its current discussion] was, in effect, to tell [Mrs Tilke's] work colleagues that she had raised unfounded allegations against them. That would have made it very difficult for [Mrs Tilke] to work with those against whom she had made the allegations and, given the manner in which the Fire Service has to operate with different Units combining to respond to serious incidents, there was at least a considerable risk that [Mrs Tilke] would have to work with those against whom she made allegations.'

1. The tribunal then, in paragraph 53, referred to the events following the sending of the emails. It concluded that Mrs Tilke's first grievance was handled unsatisfactorily. Mr Chapple was simply told not to misuse the email system. No suggestion appears to have been made by the Service to him that he might apologise to Mrs Tilke. As for Mr Young's email, the Service appeared to have taken the view that he was entitled to say what he did and to have ignored its effect upon her. The tribunal praised Mrs Tilke for electing to 'struggle on' until in May 2007 she withdrew her grievance on health grounds.

1. The tribunal moved to the time when Mrs Tilke was suspended on full pay on 1 October 2007. She was told that Dr Dean's complaint was to be investigated but was never told the details of the complaint or invited to respond to it. She was not told that Dr Dean had withdrawn it. Whilst suspended, she was told that she was to be subjected to a disciplinary procedure in relation to capability (the tribunal did not remind itself that she had been warned of this possibility in August). It referred to the history of her second grievance (in fact it there set out most of it for the first time) and described the Service's refusal to reconsider its decision to allow her a second stage appeal as 'appearing to [the tribunal] to have been the last straw.'

1. I will quote from the remainder of the tribunal's reasoning for its conclusion that Mrs Tilke had been constructively unfairly dismissed:

'53. … We have no hesitation in saying that the initial emails, particularly that of Mr Young, taken together with the manner in which [Mrs Tilke's] complaints about them were dealt with, amounted to a breach of the implied term of trust and confidence. It is also equally clear to us, having heard [Mrs Tilke] give her evidence, that she desperately wanted to resume her career as a fully operational firefighter despite the very unpleasant experiences she had undergone in 2002/2003. We consider that that desire was maintained by [Mrs Tilke] right up until the time of her resignation. When [she] began to attempt to return to work she was met with a return to work procedure which had no real regard for her particular needs as clearly set out in the medical reports. [The Service], through its Occupational Health Adviser, Dr Dean, had access to the fullest information about [Mrs Tilke's] state of mental health. However, for reasons which are not clear, Dr Dean did not highlight to [the Service's] management [Mrs Tilke's] worries about what have been referred to as triggers. This was a reference to having to work with persons or in places which brought back memories of the events of 2002 to 2003. The medical reports show very clearly that these matters were not characteristics of [Mrs Tilke] but were symptoms of her medical condition, i.e. her disability. We have already commented that too many people appear to have been involved in trying to manage the return to work process and that no one person in this very large organisation was given overall responsibility for managing the process. We are in no doubt that through the latter part of 2007 and the early months of 2008 [Mrs Tilke] was determinately trying to pursue her second and third grievances and was doing so with a view to getting those grievances resolved in such a way that she might continue her attempts to return to operational duties. Only when those attempts failed did she resign. We find that when [she] resigned the effect of the original emails was still operative. [Mrs Tilke] did her best to get over the difficulty (albeit a major difficulty) posed to her return to work by those emails. She was repeatedly set back by the events which followed and also by the way in which her disability was managed. We do not understand [the Service] to argue that [Mrs Tilke] waived the fundamental breaches of contract by delay in resignation. The breaches were still operative up to the time of the resignation and were the cause of her resignation. Up until she resigned we are quite satisfied that it was her wish to regain her operational position if at all possible. Accordingly, we find that [Mrs Tilke] was constructively dismissed. [The Service] advances no potentially fair reason for the dismissal and we find that [Mrs Tilke] was unfairly dismissed.'

The decision of the appeal tribunal

1. The appeal tribunal summarised the background and then dealt with the Service's seven grounds of appeal. Ground 1 was that the tribunal had applied the wrong test for constructive dismissal in that, in directing itself as to the implied term of trust and confidence said to have been breached, the tribunal had summarised it as an 'implied term that neither party will act so as to destroy or seriously damage the relationship of trust and confidence between employer and employee.' The point made was that in so directing itself as to the nature of the implied term, the tribunal had (i) omitted the crucial qualification represented by the words 'without reasonable and proper cause' that Malik v. Bank of Credit & Commerce International SA (in compulsory liquidation) [1997] ICR 606; [1998] AC 20 shows must be inserted after the word 'will'; and (ii) failed to realise that the test was objective.

1. The appeal tribunal upheld ground 1 on both bases. It pointed out that the breach of the implied term found by the tribunal was the sending of both emails and the manner in which Mrs Tilke's complaints about them were dealt with (paragraph 53, quoted above). The tribunal gave no consideration to whether, in relation to Mr Chapple's email or its response to it, the Service had good reason for its action. The appeal tribunal also found that the tribunal had failed to ask itself whether the way in which the Service dealt with the grievances had a proper and reasonable cause. The Service was not bound to uphold the grievances. Its obligation was to apply its procedures and reach a reasonable decision.

1. Ground 2 was a related ground, namely that the employment tribunal had erred in finding that there had been a breach of the implied term. The tribunal had found that both emails and the manner in which Mrs Tilke's complaints about them had been dealt with amounted to a breach of the implied term. But, said Mr Sproull, the Service was not responsible for Mr Chapple's email; and the tribunal had mischaracterised the true nature of Mr Young's email and its effect on Mrs Tilke (quoted above in [19]). His email had said no more than that Mrs Tilke's case in the earlier tribunal proceedings could not be proved.

1. The appeal tribunal upheld this ground too. The tribunal had rightly held that each email had to be considered separately but had then, in paragraph 53, wrongly coupled them together in making its finding as to the breach of the implied term. Mr Chapple's email, however, amounted to no more than a misuse of the Service's email system by someone for whom the Service was not responsible; and the tribunal made no findings as to what the Service should have done in response to such misuse, let alone any decision as to how any failure in this respect amounted or contributed to a breach of the implied term of trust and confidence as between the Service and Mrs Tilke. Moreover, the reality was that it was the content of Mr Chapple's email that was so offensive to Mrs Tilke. As for Mr Young's email, the appeal tribunal held that it contained nothing to entitle the tribunal to characterise it in the way it did.

1. Ground 3 was a complaint that the tribunal's decision was insufficiently reasoned, which the appeal tribunal rejected.

1. Ground 4 was to the effect that the tribunal misdirected itself in describing as 'the last straw' the Service's refusal to reconsider its decision not to grant Mrs Tilke a second stage appeal in relation to what the appeal tribunal called her third grievance but was, I think, in relation to her second grievance (the tribunal's explanation about this in paragraph 48 is confused, but it made the factual position clearer in paragraph 53). The appeal tribunal upheld this ground as well. It pointed out that, having identified the refusal as 'the last straw', the tribunal was then obliged to consider whether, assessed objectively, the refusal was wholly innocuous or was capable of contributing to a series of acts amounting cumulatively to a breach of the implied term of trust and confidence. If it was the latter, then it was necessary to consider whether the acts taken together did amount to such a breach.

1. The problem, though, was that the employment tribunal had failed to make any findings as to why the Service refused to allow a second stage appeal, its evidence on the matter not being the subject of challenge by Mrs Tilke. Moreover, such refusal was anyway not the subject of any criticism by the tribunal. The only **matters relied upon by the tribunal as amounting to a breach of the implied term were (i) the two emails and (ii) the manner in which the Service dealt with Mrs Tilke's complaints about them. The tribunal made no suggestion that the refusal to allow the second stage appeal contributed to that breach.

1. That brings me to ground 5 of the Service's appeal, the crucial one for the purposes of its appeal to this court. The point made under ground 5 was the simple one that the only breach of the implied term of trust and confidence found by the tribunal was constituted by the two matters just mentioned, namely the November 2006 emails and the manner in which the Service dealt with Mrs Tilke's grievance about them. That grievance was, however, withdrawn on 24 May 2007, at which point – insofar as the breach can be regarded as having been of a continuing nature – the breach came to an end. Yet Mrs Tilke did not resign for another 12 months, namely on 13 May 2008. The point that Mr Sproull made to the appeal tribunal was that, treating the latest moment of the Service's repudiation of the employment contract as committed on 24 May 2007, an employee cannot then wait 12 months before deciding to accept the repudiation and resign. The tribunal was, therefore, wrong to hold, as it did, that by 13 May 2008 the original emails were, as the tribunal put it, 'still operative'.

1. The appeal tribunal upheld this ground of appeal as well. It dealt with it as follows:

'44. We agree with Mr Sproull. The correct test was laid down by the Court of Appeal in Western Excavating (ECC) Ltd v. Sharp [1978] QB 761 at 769 by Lord Denning MR in these words:

"The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. However, he must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract."

1. Although the Employment Tribunal makes reference to part of this test at paragraph 52 of its judgment it fails to apply it, failing even to ask itself whether [Mrs Tilke] delayed too long. Had the Employment Tribunal applied this test there could only have been one conclusion, that [Mrs Tilke] waited 18 months after the last act of the acts said to amount to a fundamental breach of contract (i.e. the two emails) and 12 months after she withdrew her appeal. On that basis, it would have been forced to the conclusion that the period of delay was simply too long and that she had affirmed the contract. It seems to us that the Employment Tribunal failed to appreciate that there was a clear distinction between the withdrawal of [Mrs Tilke's] first grievance on 24 May 2007 which was about the content of the emails and the content of her second grievance which was about [the Service's] handling of her return to work having a severe impact on her health. That grievance was dismissed and her appeal against it was dismissed. Her request for a second stage appeal against that dismissal was refused on 16 April 2008 and her request for a re-consideration was refused on 6 May 2008. It was that refusal which the Tribunal said was the last straw. There is simply no consideration by the Tribunal as to why they found that [Mrs Tilke] had not affirmed the contract.'

1. The appeal tribunal also rejected grounds 6 and 7 of the Service's appeal. There is no need to explain them.

The appeal to this court

1. Mr Sproull's submission was simple. The appeal tribunal had held, in paragraph 45, that even if the sending of the two emails and the manner in which the Service subsequently dealt with Mrs Tilke's complaints about them did amount to a breach of the implied term of trust and confidence, by 24 May 2007, when she withdrew her grievance, Mrs Tilke had to make an election as to whether to (i) accept the repudiation of her employment contract and resign; or (ii) affirm the contract and remain in service. The decision in Western Excavating showed that she could not delay in making that election. The effect of the decision of the appeal tribunal was to uphold the Service's case that, following the withdrawal on 24 May 2007 of the grievance about the emails, Mrs Tilke had affirmed the employment contract by remaining in the employment of the Service for a further 12 months. Its decision was that, had the employment tribunal asked itself the question whether she had delayed too long, it could only have answered it in one way, namely by concluding that she had.

1. There is, therefore, submits Mr Sproull, no point in a remission back to an employment tribunal of the unfair dismissal claim. That is because any findings of fact on the emails and on the Service's response to her grievances about them that may be favourable to Mrs Tilke will not overcome the undisputed fact that the 'election' clock started ticking on 24 May 2007 (at the latest); and the appeal tribunal has, in substance, held that any decision that Mrs Tilke did not thereafter affirm the employment contract would be perverse. Thus any employment tribunal properly directing itself in accordance with the appeal tribunal's guidance must inevitably dismiss the unfair dismissal claim. There is, therefore, no point in a remission of the case to the employment tribunal.

1. In light of Mr Sproull's submissions, this court has naturally been interested to know why the appeal tribunal remitted the case for a re-hearing. Its judgment did not provide that explanation. When it subsequently refused to review its decision at the suit of the Service, it provided a mere four lines of reasons. They were twofold. The first reason was that the appeal tribunal had applied the guidance of Sir John Donaldson MR in Dobie v. Burns International Security Services (UK) Ltd [1984 ICR 812, at 818, where he said:

'Once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection. It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact.'

The second reason was that 'it is impossible to say that despite the misdirection the Employment Tribunal would have come to the same conclusion.'

1. Mr Sproull submitted that both reasons were wrong. Whilst the Dobie dictum might be said to support a remission, Mr Sproull pointed out that it had since been materially qualified in Hellyer Brothers Ltd v. McLeod and Others [1987] ICR 526 in the judgment of this court delivered Slade LJ (who was also a party to the Dobie decision). He said, at page 537, after citing the above passage from Dobie:

'This statement, however, must, in our judgment, be read subject to an implicit qualification correctly stated by Waite J in the present case [1986] ICR 122, 130:

"If we are satisfied that a conclusion reached as a result of a misdirection is plainly and unarguably wrong upon the facts found by the industrial tribunal and those facts do not require further amplification or reinvestigation, then we are entitled and bound to substitute our own conclusion as to what those findings require in law."

As for the appeal tribunal's second reason, Mr Sproull submitted that the appeal tribunal has already found that, had the employment tribunal applied the correct test, it could only have come to one conclusion. This is, therefore, a case where the outcome of a reference back to the employment tribunal is inevitable so that the appeal tribunal had a duty to substitute its own view.

1. Mr Gloag resisted the appeal. He did not focus his submissions directly on the points advanced by Mr Sproull but submitted that this was a case in which the real thrust of Mrs Tilke's case was that there had been a continuing breach by the Service of the implied duty of trust and confidence during the whole of the period following her return to work in November 2006. In the face of the conduct which she had faced, she had struggled on to try and make a go of it, but had eventually concluded that she could take no more, following which she resigned on 13 May 2008. I understood Mr Gloag to accept that – apart from the findings in relation to the emails and the Service's response to Mrs Tilke's complaints about them -- the tribunal made no findings that any other acts or omissions by the Service had amounted either separately or collectively to a breach of the implied term of confidence such as to entitle Mrs Tilke to resign when she did. But he said it would be wrong for this court not to respect the appeal tribunal's remission of the whole case for a re-trial since that would give the opportunity to Mrs Tilke to make good the wider case just outlined. Moreover, it would, he said, be unfair to deprive Mrs Tilke of her further 'day in court' that the appeal tribunal plainly intended her to have.

Discussion and conclusion

1. I understand Mrs Tilke's case before the employment tribunal to have been to the effect that from the time of her return to work in November 2006 down to her resignation in May 2008 she was the victim of a series of acts by the Service that collectively constituted a breach of the implied term of trust and confidence that ultimately justified her resignation. She was, therefore, she claimed, constructively dismissed; and her dismissal was unfair. At the forefront of her complaints was the circulation of the two emails and the manner in which the Service then dealt with her two grievances about that matter. That part of her complaints covered the period from 1 November 2006 to 24 May 2007, when she withdrew her grievance, at which point those heads of complaint ('the email complaints') came to an end. She also, however, advanced complaints about the Service's conduct towards her during the subsequent period, in particular during the post-October 2007 period when she presented two more grievances ('the wider complaints').

1. The outcome of the tribunal's findings was that Mrs Tilke was held to have made good her email complaints, which the tribunal held to have constituted a breach of the implied term of trust and confidence. The tribunal was plainly sensitive to the consideration that, on the face of it, the email complaints came to an end on 24 May 2007, when Mrs Tilke withdrew her email grievance. It held, however, that although she did not resign for another 12 months she had not in the meantime 'waived' the Service's email breaches, which were 'still operative'; and that she had been entitled to resign in response to the 'last straw' represented by the Service's refusal on 6 May 2008 to review its decision to permit her a second stage appeal in respect of her second grievance.

1. For the reasons explained by the appeal tribunal, which were not the subject of criticism to us by Mr Gloag, it appears to me to that in all the respects just summarised the employment tribunal went seriously wrong. Even assuming in the tribunal's favour that it had been entitled to find that, by 24 May 2007, the email complaints collectively constituted a breach of the implied term of trust and confidence, there was no sound basis on which it could find that Mrs Tilke was entitled to wait another 12 months before accepting the repudiation of the employment contract that such breach represented. The tribunal misdirected itself in regarding the delay point on turning on whether or not Mrs Tilke had 'waived' the Service's repudiatory conduct. It did not. It turned on whether her continuing in the employment of the Service for another 12 months showed that, following such repudiation, she had affirmed her employment contract. To that question, the appeal tribunal held there was only one answer, namely that she had. The employment tribunal's introduction of its so-called 'last straw' event as somehow serving to meet the difficulty did not begin to do so. It may well have been that event that caused Mrs Tilke to resign. But it was one about which she had apparently advanced no criticism and about which the tribunal made no adverse finding.

1. It follows therefore that -- based as it was on the email complaints -- the unfair dismissal finding was flawed. There was no further (or alternative) finding by the tribunal that any or all of Mrs Tilke's 'wider complaints' either severally or collectively constituted a breach of the implied term of trust and confidence that anyway entitled her to resign.

1. What, therefore, is the point of a remission of this case to a differently constituted employment tribunal for a re-hearing on the unfair dismissal issue? I am not at all convinced by Mr Gloag's point, upon which he placed much emphasis, that we ought to uphold the appeal tribunal's remission order since otherwise Mrs Tilke would be deprived of the equivalent of her 'day in court'. She has already had seven such days before an employment tribunal during which she had the fullest opportunity to make her case. The result was a decision by which (i) as regards the email complaints, the tribunal made findings of fact and law wholly in her favour, but then built upon them a finding of unfair dismissal that was flawed; and (ii) as regards the wider complaints, the tribunal made not a single finding that any of them – severally or collectively – constituted a breach of the implied term that entitled her to resign in response.

1. When Mrs Tilke was faced with the Service's appeal to the appeal tribunal challenging the basis on which the employment tribunal had found in her favour, she advanced no contingent appeal to the appeal tribunal to the effect that the employment tribunal had erred in law in failing to make findings of fact in her favour on her wider complaints. Nor did the appeal tribunal suggest that in this respect the tribunal had fallen into error. I cannot therefore think that the appeal tribunal can have intended to send this case back for a second hearing on a case that failed at the first hearing and in respect of which no criticism had either been advanced to, or made by, it as to such failure. There is, in my judgment, therefore no justification for giving Mrs Tilke a second day in court at which she might hope for a better result on her wider complaints than she achieved on the first.

1. Of course the appeal tribunal has ordered a remission of the whole case to a differently constituted tribunal, and its remission order implicitly includes the case based on those wider complaints. But the difficulty with that order is that its making is not explained in the appeal tribunal's original judgment nor is it adequately explained in its reasons for refusing the review. We have therefore had to work them out for ourselves; and so, far as concerns a re-trial on the wider complaints issue, I have expressed my views. There is no justification for any such a re-trial.

1. The rest of the claim related to the email complaints. What is the point of a remission to a differently constituted tribunal for a re-trial on these complaints? We already know the facts. At a re-trial, the employment tribunal's findings about them cannot be more favourable to Mrs Tilke than are the current findings. They may even be less so because that tribunal will not need to be reminded (i) that Mr Chapple's email is not to be coupled with Mr Young's email; or (ii) that it must factor into its considerations the 'without reasonable and proper cause' qualification to the implied term of trust and confidence. But whatever findings any such tribunal might make about Mrs Tilke's complaints, it has also (in effect) been told by the appeal tribunal that it would be perverse to find other than that, by 13 May 2008, Mrs Tilke had affirmed her employment contract and so precluded any claim of constructive unfair dismissal. There can be no sensible prospect of the tribunal ignoring that instruction and holding otherwise. The result must therefore be that any re-trial of the email complaints will result in a dismissal of the unfair dismissal claim.

1. I can therefore see no point in a remission of this case for a re-trial and, with respect, consider that appeal tribunal was in error in its essentially unexplained decision so to remit it. I would allow the Service's appeal and make an order the effect of which will be to vary both the third paragraph of the appeal tribunal's order of 15 January 2010 and paragraph (2) of the employment tribunal's reserved judgment of 8 May 2009 so as to provide that Mrs Tilke's unfair dismissal claim is dismissed.

Lady Justice Black :

1. I agree.