Appeal No. UKEAT/0011/10/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 March 2010

Judgment handed down on 28 May 2010

Before

HIS HONOUR JUDGE SEROTA QC

MR B BEYNON

SIR ALISTAIR GRAHAM KBE

MISS B JONES (APPELLANT)

THE COLLEGIATE ACADEMY TRUST (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant MR JOHN HORAN (of Counsel)

Instructed by: Islington Law Centre
161 Hornsey Road
London
N7 6DU

For the Respondent MR MARK STEPHENS (of Counsel)

Instructed by: Messrs Stone King LLP Solicitors
13 Queen Square
Bath
BA1 2HJ

UNFAIR DISMISSAL

Constructive dismissal

The Employment Tribunal correctly directed itself to the breach of the implied term of trust and confidence and was entitled to conclude that the Claimant had not been constructively dismissed.

1. This is an appeal by the Claimant from a decision of the Employment Tribunal at Birmingham (Employment Judge Swann and lay members) that was sent to the parties on 8 October 2009 after a hearing that lasted 7 days. The Employment Tribunal took four days in chambers to consider its decision which runs to 36 closely typed pages. The Employment Tribunal dismissed the Claimant's claims of disability discrimination and constructive unfair dismissal.

1. The appeal was referred to a full hearing by His Honour Judge McMullen QC on 11 January this year.

1. We take the factual background from the judgment of the Employment Tribunal. As the Claimant's skeleton argument has limited the grounds of appeal which were argued before us we will concentrate on those factual matters relevant to the remaining grounds of appeal.

1. The Claimant is aged 29 and is a single mother with a young child. She had the misfortune to lose another child. Since she was a teenager the Claimant has suffered with clinical depression which was controlled by medication.

1. On 2 July 2007 she commenced work as a trainee at Shireland School (a secondary school) which became, or was, taken over by the Respondents and a transfer of her employment to the Respondent took place pursuant to TUPE.

1. On 9 July 2007 the Respondent, as a newly qualified teacher (specialising in music) in an application for a post with the Respondent was asked about whether she had any disability. She gave an inaccurate answer. She wrote that she had no disability, because she believed that if she disclosed her disability it might affect her position in interview. However, before she took up her post she did complete a Medex 1 form for the Occupational Health Agency dated 8 July 2007 in which she disclosed her depression and attached a copy of a letter dated 11 August 2006 from her clinical psychologist to the effect she was able to embark on a post-graduate course in education at the University of Central England. The Employment Tribunal accepted that this information was never passed to the Respondent until shortly before the Claimant resigned.

1. The Claimant had a mentor to whom she could refer, Mrs Ruth Williams (Head of Music), she could also obtain support from Charlotte Taylor, Head of the Arts Faculty and she was also able to obtain support from other faculty members. There were clearly disciplinary problems at the school and a new procedure relating to detentions came into force in January 2008. The Claimant denied this was the case but the Employment Tribunal found that she regularly used the new procedures (see 11:19). The new procedures included the use of 'hot spotting' whereby one pupil would leave the class to tell the duty teacher of unruly behaviour by another pupil and bring that teacher to assist (11:18). Other teachers at the school used this procedure less.

1. The Claimant fully accepted that from a personal point of view the attitude of the faculty towards her and from Charlotte Taylor in particular was one of support so far as the Claimant's childcare issues were concerned. Charlotte Taylor, was also a mother, and went to great lengths to ensure the Claimant would always feels supported so far as being a single parent was concerned. The Claimant had no complaints about childcare issues; her concerns arose from a perceived lack of support in other directions.

1. On 10 December 2007 the Claimant was absent with a high heart rate; there was no apparent follow up by the Respondent.

1. In January 2008 she encountered behavioural difficulties with pupils in the Year 10 BTEC including the following:

(a) On 2 January 2008 she complained that a pupil had bruised her arm by banging the door on her as she attempted to prevent him from running off. However, she did not refer to the bruising in her written record on the Portal (see 11:33).

(b) On 23 January the Claimant attempted to remove an umbrella from the pupil BJ. The Claimant maintained that her shoulder had been twisted but again she did not record any injury in the Portal. She informed the 'hot spotting' teacher but when BJ was interviewed about the allegation, in the absence of any corroborative evidence the teacher who attended as the 'hot spotting' teacher, Ms Bradbury, did not believe anything further could be done other than to recommend a formal detention by the Claimant.

(c) Also on 23 January the Claimant's wallet including her bus pass and memory stick were stolen. The wallet and bus pass were returned to her and there was no further investigation.

(d) On 29 January 2008 the Claimant maintained she was jostled by two students and suffered a bruise to the eye; she did not report or log this matter and did not want an investigation (as she had told her partner).

(e) On 30 January 2008 there was a further incident involving an unruly pupil. The Claimant put the 'hot spotting' procedure into effect and Mrs Williams attended; see 11:37. The Claimant wanted the pupil K removed at once but Mrs Williams decided that to do so would have led to an unacceptable confrontation and it was more appropriate for the matter to be dealt with at the end of the lesson, and at the end of the class, K and another disruptive pupil D, were removed by Mrs Taylor. The Claimant believed that Mrs Williams' action undermined her position.

1. It was recognised that Year 10 BTEC was a difficult group and a number of parents were spoken to and behaviour plans were implemented. Contracts were agreed with the faculty and there was monitoring.

1. From 30 January 2008 until 4 March 2008 the Claimant was absent from work and was provided with medical certificates referring to her suffering "stress" or work related stress. There was no reference in those notes to depression. The Claimant complained that the Respondent showed no sufficient concern and that when she returned she found that her "cover" work had been criticised. On 4 March 2008 she returned to work. Mrs Taylor supported the Claimant through her lessons and discussed with her a phased return. The Claimant was grateful and the Employment Tribunal at paragraph 11:49 quote an email she sent to Charlotte Taylor:

"Hi Charlotte,

I'm really sorry I won't be in today. I can't cope with it. Thanks for our chat and the support you gave me yesterday, but I'm still finding it to hard. I was sick when I got home because I got myself so worked up and it is not helpful to the kids if I teach when I'm like this.

Bethany"

1. The Claimant was then again off sick from 5 March and was referred to Occupational Health with a view to supporting the Claimant. Mrs Taylor also provided the Claimant with her mobile telephone number and advised her she should feel free to telephone at any time if she needed a chat. Melanie Adams of the Respondent's Human Resources Department also offered support.

1. On 20 March 2008 the Claimant returned to work for one day, which was a training day. It was suggested by the Respondent that there would be less pressure on the Claimant for her to attend on a training day. She then returned to sick leave. The Claimant felt that she had been ostracised and unwanted and there was an impossible barrier to return to work because of her relations with Mrs Williams; she never returned to work. On 24 April 2008 the Claimant met Occupational Health and their report said the Claimant had made the Respondent aware of her illness (depression was specifically referred to) and the Respondent from this date knew of the depressive illness as a result of discussions with Occupational Health.

1. The Respondent operated a management of absence policy and the meeting took place on 19 May at which the Claimant, who was accompanied by her trade union representative (Mr Carr), raised complaints. The Claimant said that she had raised informal grievances to the following effect:

(a) While she was absent from work there had been no welfare visit.

(b) She had not received appropriate support in relation to the assaults to which we have referred.

(c) She considered there was a perceived implication by the Respondent that she had improperly been taking time off.

1. Further meetings were arranged to discuss future support. Mr Carr asked for flexibility in relation to any resignation date and further assistance from Occupational Health.

1. The Claimant's complaints were investigated by Mrs Taylor and she briefly reported in an email but this was not sent to the Claimant. On 27 June 2008 a further meeting focussing on the Claimant's difficulties with pupils took place but there was no feedback to the Claimant of Mrs Taylor's investigation. Mr Carr said the Claimant would resign.

1. The Claimant complained that the Respondent was accusing her of lying about the incident with BJ on 23 January. On 9 July 2008 she raised a formal grievance; see paragraph 11:63 and on 16 July 2008 she tendered her resignation. The Respondent rejected her grievance on 17 July and on 18 July 2008 the Claimant appealed but her appeal was dismissed on 24 October. On 31 August 2007 the Claimant resigned and claimed she had been constructively dismissed.

1. We now return to the decision of the Employment Tribunal. The Employment Tribunal set out the law; generally this self-direction is not controversial. In relation to the question of constructive unfair dismissal at paragraph 6, the Employment Tribunal set out the law in this way:

"6. Further, we note that an employer may be held to be in repudiatory breach of contract not only if he breaks an express term but also if he infringes an implied term and therefore an employer will be held guilty of a breach which entitles an employee to resign and claim that he has been constructively dismissed, if the employer behaves in such a way which destroys the relationship of trust and confidence with his employee. We note that even if an employer's act which was the proximate cause of an employee's resignation was not in itself a fundamental breach of contract, the employee may be able to rely upon the employer's course of conduct considered as a whole in establishing that he was constructively dismissed."

1. The Employment Tribunal went on to consider the law relating to discrimination on the grounds of disability and harassment, the duty to make adjustments, the burden of proof and the various authorities on the implied term of trust and confidence.

1. The Employment Tribunal set out the facts and we have summarised the relevant parts. We do note, however, that during the course of the Tribunal hearing the Claimant on day 3 during her re-examination is recorded as saying the following:

"At the time of my resignation I was under lots of pressures. My health was a worry, I was financially worried, my depression was getting progressively worse, I was obviously suffering the potential loss of career, I was on SSP by then, there was no incapacity benefit as I had insufficient national insurance, SSP was finishing and it would be just be disability living allowance and child allowance. I had a mortgage. There was nothing else to do but to go to income support. I needed to leave by 31 August to get income support. How was I going to cope in the autumn term. I couldn't survive on DLA and child benefit alone. The financial worries all played a part in my decision."

1. The Employment Tribunal then recorded the parties submissions and went on to its conclusions.

1. In relation to the question of adjustments by reason the Claimant's disability, a matter also relevant to constructive dismissal, the Employment Tribunal concluded that the Respondent was aware of the Claimant's disability on receipt of the Occupational Health report on 24 April 2008 (paragraph 26). At that stage there was no reasonable adjustment that could have been made (see paragraph 27) and there was no PCP that required her to return to full time work. In relation to direct discrimination the Employment Tribunal found that Ms Williams knew of the Claimant's depression between 4 and 20 March. It also made the following relevant findings at paragraph 11:16. The Claimant was aware of the system of two disciplinary ladders and agreed and accepted that it was open to her, despite the fact that Ruth Williams was her primary mentor to discuss any problems of concern with anybody within the Faculty Department. Paragraph 11:42 in relation to the complaint by the Claimant as to alleged lack of support by Ms Williams the Claimant introduced a document prepared by Ms Williams which she maintained was false and had been made up by Ms Williams because no such observation had ever taken place. Ms Williams' observations were positive and she had said that she had completed the record of the observation in her own time after the observation lesson itself. The Employment Tribunal noted in any event there was nothing other than supporting comments noted therein about the Claimant and a good report of how well the lesson went from the Claimant's point of view, somewhat contrary to the allegations made by the Claimant.

1. The Employment Tribunal found that certain disparaging comments had been made about the quality of the "cover" work produced by the Claimant but the Respondent would have acted in exactly the same way to anyone producing similar cover work who did not suffer from the Claimant's disability or who suffered from another form of disability but who had been absent on long term sick leave. There was no evidence that any other comparator either hypothetical or actual would have been treated any differently by Mrs Williams, so the claim of direct disability discrimination was not made out. The Employment Tribunal noted that Mrs Williams (given that her department was under pressure) with the need for a substantive degree of cover required for the Claimant's work for a considerable period of time, felt frustrated at the time she made those comments. In relation to the perceived lack of support,

"33. In regard to the treatment preceding these comments and the averred lack of support, the evidence showed that detentions were carried out, that colleagues and Ruth Williams did step in and did act. It may not have been as immediate as the Heads of the other Departments did but in the absence of any statistics or written evidence one way or the other, we accept the evidence of the Respondent's witnesses that this was at least adhered to whenever appropriate. Even if there could be said to have been any lack of actual support by failing to issue immediate detentions or punishments in accordance with the behavioural ladders or otherwise, there is no evidence on the facts before us of a prima facie case that these were acts of direct disability discrimination on the grounds of the Claimant's disability when taking account of the burden of proof regulations. The Claimant has failed in our view to make out a case that these were acts carried out either consciously or sub consciously on the part of the Respondent on the grounds of her disability."

1. In relation to Mrs Williams' decision not to remove the unruly pupil, the Employment Tribunal accepted her explanation and there was no basis for asserting there was any discrimination;

"34. Mrs Williams in a specific incident, it was accepted did not remove an unruly pupil from the case. However, the explanation that was given for this came from Charlotte Taylor, i.e., that it was practice and procedure that if a pupil was not prepared to respond at all that a teacher should not then engage in a physical confrontation with a difficult pupil and should do the best that they could to calm the situation down. There is no evidence to suggest in our view that Mrs Williams did anything other than act in accordance with this procedure however unreasonable the Claimant may feel that this was and however much she believed this undermined her position in front of the class generally, given the surrounding circumstances. In that instance, there was good reason for the process that was embarked upon by the Respondent staff to try and deal with the matter. As it was, those pupils were later seen separately and were dealt with afterwards and therefore in conclusion having regard to the facts that we have found and the evidence presented to us, we do not conclude that the claims of direct disability discrimination against the Respondent and in particular by Ruth Williams are well founded are made out and are therefore dismissed."

1. The Employment Tribunal then went on to consider the question of constructive unfair dismissal. The Claimant alleged a lack of support in relation to disciplinary issues. We have referred already to paragraphs 32, 33 and 34 in which these factual matters are disposed of. Further, the Claimant did not report assaults at the time on the E-Portal and it is clear that she was making avid use of the 'hot spotting' procedure.

"36. In January of 2008, there was little doubt that the Claimant was making avid use of the hot spotting procedure. All of the records show this. There was some issue about her logging on and recording on E Portal the details of the matters she said she was subjected to. However, what is clear is that at no stage on the E Portal does she record that she suffered bruising and/or physical harm at the hands of her pupils. There is no corroborative evidence before the Tribunal that would substantiate the injuries that she said she suffered by being assaulted or pushed by a pupil or pupils or in regard to the hand twisting incident when the umbrella was pulled from her grasp by pupil BJ.

37. With the lack of any such corroborative evidence and a denial in particular by pupil BJ, the school was left with only limited action available that it could take and on the evidence it took what action it could in those respects. The Claimant went off on long term sickness and did not return again until 4 March. During that period of time she was neither contracted by text message or phone on the evidence (the informal procedure that Charlotte Taylor had said was maintained between herself and her colleagues) nor was any message imparted to her that the cover work that she was supplying was anything other than welcomed and on this matter the Respondent is open in our view to some criticism."

1. The cover work produced by the Claimant was not of great use and the Claimant was caused by concern by the lack of feedback about this. The Employment Tribunal considered (see paragraph 38) that there were some shortcomings on the part of the Respondent in relation to cover work and the comments made by Mrs Ruth Williams but nevertheless when the Claimant did return to work "there was no evidence that she was supported other than adequately on 4 March". Mrs Williams' comments were born out of frustration rather than on the grounds of the Claimant's disability. When the Claimant went back on the teacher training day on 20 March Charlotte Taylor sat with her some of the time,

"Whilst there were therefore some shortcomings on the part of the Respondent they did not in our view amount to either individually or collectively a fundamental breach of the Claimant's contract."

1. The Employment Tribunal also concluded that at the time of the informal grievance meetings the Claimant had already decided she wished to resign; we have referred earlier to the passage in her evidence before the Employment Tribunal. The Employment Tribunal concluded at paragraph 42 that there had been no breach by the Respondent of the implied duty of trust and confidence.

"42. The Claimant therefore reaffirmed her earlier thoughts about resignation that had been previously canvassed openly before the Respondent on 19 May. The Claimant did not therefore wait for her grievance to be resolved before she tendered her resignation. In taking all of this into account and the guidance given in the House of Lords case of Malik aforesaid the test that the Tribunal has to take into consideration as to whether there has been a breach of the implied duty of trust and confidence is if there has been no reasonable and proper cause for the employer's conduct was that conduct so calculated to destroy or seriously damage the relationship of trust and confidence between the parties, an objective test that has been followed in case law since that date. Whilst the perceived lack of support outlined above relied on by the Claimant may undoubtedly to her to have been unreasonable on the part of the Respondent, there is no evidence in our view objectively that this averred conduct was calculated to destroy or seriously damage the relationship of trust and confidence that should exist between the parties: The Claimant had already in our view come to the conclusion on 19 May that resignation was the only option and simply confirmed this in the July meeting. The failure by Charlotte Taylor therefore, to have reported back to her on her investigations as to her colleagues and to disclose the email that she submitted thereafter to Miss Evans, cannot in our view have formed part of the decision to resign. The Claimant simply reaffirmed in the June meeting, that which she had already come to the conclusion about in 19 May meeting. The reasons therefore that were set out in her resignation letter in particular the last straw i.e. the failure by the Respondent not to deal with her grievances was not in our view an unreasonable act on the part of the Respondent. The Respondent as stated was never put on notice of any time scale by which it had to reply to the very detailed grievance letter. It was a condition that was never set down in the grievance letter itself."

1. In relation to the complaint in concerning delay in replying to her grievance letter the Employment Tribunal (paragraph 43) found that the Respondent did reply within a reasonable period of time given the number of grievances and then the process went to appeal. The Claimant having resigned on 16 July so the handling of the grievance thereafter however unreasonable the Claimant may have felt it was had no impact upon her decision to resign.

1. It is helpful to set out the Employment Tribunal's concluding paragraph:

"44. In summary therefore, and despite the clear difficulties that existed at the end of the relationship between the Claimant and her colleagues (as perceived by the Claimant) we do not conclude that their actions towards her or the Respondent's behaviour generally, either individually or cumulatively amounted to a fundamental breach of the implied duty of trust and confidence thus entitling the Claimant to resign and claim that she was unfairly dismissed. That in particular, objectively that any such averred conduct or behaviour by the Respondent through its employees was calculated to destroy or seriously damage the relationship of trust and confidence between the parties as established in the guidance in the aforesaid case of Malik. For these reasons therefore we also find that her claim of constructive unfair dismissal is not well founded and is dismissed."

1. We take this in the order set out in the Claimant's skeleton argument. The first four grounds in the Notice of Appeal have been abandoned. These are as follows:

(a) The date of the Respondent's knowledge of the Claimant's disability;

(b) & (c) Points on reasonable adjustments;

(d) Direct discrimination.

1. Mr Horan's first point was that the Employment Tribunal had misdirected itself in relation to the law on constructive dismissal. It was established in Baldwin v Brighton & Hove City Council [2007] IRLR 232 that the House of Lords in Malik v BCCI [1997] IRLR 462 had been misreported; in order to establish a breach of the implied term it was sufficient for a Claimant to show conduct by a Respondent which objectively considered was likely to seriously undermine the necessary trust and confidence in the employment relationship. The formulation by Lord Steyn in Malik that "the employer shall not without reasonable and probable cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between an employer and employee" was an error of transcription and the "and" should have read "or". Mr Horan submitted that the Employment Tribunal dealt only with the subjective as opposed to the objective test. The Employment Tribunal by relying on Malik rather than following Baldwin v Brighton & Hove City Council, clearly ignored the disjunctive "or" before the phrase "likely to destroy or seriously damage the relationship of confidence and trust…..".

1. The second point relied upon by Mr Horan was that the Employment Tribunal had failed to make findings it was bound to make and in this regard he relied upon the well known authorities of Meek v City of Birmingham District Council [1987] IRLR 250 and English v Emery Reinbold & Strick [2003] IRLR 710. In particular, the Employment Tribunal failed to identify (a) the number of pupils in detention for behavioural problems; (b) to make findings of fact about the dispute as to 'hot spotting'; (c) the conversation with Mrs Taylor regarding anti-depressants; (d) a conversation concerning stress and the drama studio with Mrs Bradbury and Miss Taylor; (e) the account of her conversation with Mrs Williams; (f) the Claimant's case that she wished to hand over more formal notes of grievance at the informal meeting.

1. The third point raised by Mr Horan was the alleged failure on the part of the Employment Tribunal to consider the breach of the implied term of trust and confidence. In this regard, he pointed to firstly, what he suggested was a delay in dealing with the grievance; secondly, the "bias" shown by Mrs Taylor in her investigation; thirdly, the failure to report back on the investigation to the Claimant.

1. The fourth point raised was that the decision was wrong in law or perverse and reliance was again placed on the Meek case.

1. Mr Mark Stephens made a number of general points. He firstly pointed out the difficulties that became apparent in the Claimant's case once she had lost on the grounds of discrimination, as her case was principally aimed at the perceived difference in treatment with her comparator Gabby Wolf. He pointed to the generally supportive attitude of the Respondent towards the Claimant. Mr Stephens pointed to the findings of the Employment Tribunal to which we have referred that the Claimant was able to discuss any issues with Mrs Williams and any other faculty members; no issues had been raised as to her teaching ability. She was able to use the 'hot spotting' procedure; she had accepted from a personal point of view the attitude of the faculty towards her and Charlotte Taylor in particular was one of support so far as childcare issues were concerned and that as the Employment Tribunal found at paragraph 11:22 up until in or around Christmas 2007 the evidence showed that generally matters went as well as they could do, given that this was a new position and a new post for the Claimant effectively acting on her own without the more intensive back up which one would expect with a post graduate teacher when compared with a newly qualified teacher.

1. Mr Stephens also pointed to the positive evaluation from Mrs Williams referred to at 11:42 and to the fact (11:63) that she had decided to resign before the end of the grievance procedure.

1. Mr Stephens submitted that the objective test was clear. He drew attention to the formulation at paragraph 6 of the Employment Tribunal's decision to which we have referred and also to paragraphs 32-34 where the Employment Tribunal's findings were adequately reasoned and properly supported by the evidence.

1. The complaints made by the Claimant were set out at paragraph 35, and the Employment Tribunal had made appropriate findings; they did not give rise to any constructive dismissal. Our attention was again drawn to paragraphs 6 and 42 of the decision of the Employment Tribunal and at paragraph 44 where it was submitted it is clear that the Employment Tribunal had regard to the need for examining the Respondent's conduct "objectively" in the penultimate sentence of paragraph 44.

1. Insofar as it was necessary for the Employment Tribunal to be aware of a possible subconscious motivation, this was a matter specifically considered by the Employment Tribunal in the last sentence of paragraph 33. Mr Stephens submitted, therefore, that taken as a whole that the Employment Tribunal had used an objective test.

1. In relation to the assertion that the Employment Tribunal had not dealt with various matters.

(a) The number of pupils in detention for behavioural problems (ET 11:17); this was dealt with at paragraphs 32-34.

(b) Dispute in relation to 'hot spotting' (11:19-20); again this was dealt with at paragraph 36.

(c) The "brusque"conversation with Mrs Williams (11:47); the Employment Tribunal found that this was so but at paragraph 32 explained why Mrs Williams acted as she did.

(d) (11:58) Refusal to accept notes. Mr Stephens submitted it was unclear who wished to hand up the notes and there was no suggestion the Claimant was unable to deal with her complaints. Further, she resigned before the process and clearly wished to do so from an early stage. He drew our attention to a passage from her re-examination which was accepted as being correct.

1. Insofar as alleged omissions on the part of the Employment Tribunal were concerned. Mr Stephens pointed to the fact that the Claimant was able to deal with any matters she wished; her decision to resign was made before the process was underway. It is clear from the findings of the Employment Tribunal that she suffered no detriment in any event; see paragraphs 11:59 and 60 and paragraph 32.

1. In relation to inadequate reasoning, although the Employment Tribunal at paragraph 11:38 recorded the Claimant believed that she had been undermined and "ostracised" at paragraph 11:53 the Employment Tribunal found that the protagonists were at the time heavily involved in A-levels so could not devote more time to the Claimant; see 11:53. Mr Stephens also pointed to the supportive atmosphere maintained by the Respondent (11:21 and 11:28) and Mrs Williams' supporting comments were found to be contrary to the allegations made by the Claimant; see 11:42. The Employment Tribunal at 11:51 revealed sensitivity to the need for adjustments and at paragraph 11:65 it is noted that Sir Mark Grundy who heard the Claimant's grievance appeal on the basis he believed the Respondent had carried out and done everything it should and could not have done in regard to the support of her and that the Claimant's allegations were not made out.

1. We now turn to consider the law. By way of general approach it is helpful to have regard to the comments of Elias J in Aslef v Brady [2006] IRLR 576:

"55. The EAT must respect the factual findings of the Employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not "use a fine toothcomb" to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed."

1. We now turn to the law of constructive dismissal; the classic statement of this is to be found in the judgment of Lord Denning in Western Excavating (ECC) Ltd v Sharp [1978] 1 All ER 713, [1978] QB 761, [1978] 2 WLR 344, CA in which he defined constructive dismissal in the following way:

"If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. 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."

1. It is important therefore to bear in mind that the breach must be serious and repudiatory and one that would entitle the innocent party to determine the contract at once.

1. The law as to repudiatory breach is well summarised in the decision of Baldwin v Brighton & Hove City Council [2007] IRLR 232 (His Honour Judge Peter Clark). His Honour Judge Peter Clark analysed in some detail the correctness of the transcription of the speech of Lord Steyn in Mahmud v Bank of Credit & Commerce International SA [1997] ICR 606, [1997] IRLR462. The correct term was held by the Employment Appeal Tribunal in Baldwin as follows.

"That the employer shall not without reasonable and proper cause, conduct itself in a manner calculated and or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee." [our emphasis.]

1. In Mahmud v BCCI [1997] ICR 206, Lord Steyn had addressed the matter in this way at page 621 C-D.

"..For convenience I shall set out the [implied] term again. It is expressed to impose an obligation that the employer shall not:

'Without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.'

See Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666, 670 (Browne-Wilkinson J) approved in Lewis v Motorworld Garages Ltd [1986] ICR 157 and Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] ICR 524."

1. His Honour Judge Peter Clark demonstrated that there was a typographical error in recording the judgment which should have read:

"That the employer shall not without reasonable and proper cause, conduct itself in a manner calculated and or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. [our emphasis] Thus the employee need only show conduct calculated to destroy or seriously damage the relationship of confidence and trust or conduct 'likely' to have that effect; he need not show both."

1. We are satisfied that His Honour Judge Peter Clark was correct and the contrary has not been argued before us. It is also helpful to note his further citations from the judgment of His Honour Judge Peter Clark to the effect that it is not necessary to constitute a breach of the implied term to show that the employer intended any repudiation of the contract. The Tribunal's function was to look at the employer's conduct as a whole and determine whether it is such that its effect judged reasonably and sensibly was such that the employee could not be expected to put up with it. The conduct of the parties has to be looked at as a whole and its cumulative impact assessed. It is also helpful to note that in Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666, at p670 G – 671 A, the then President said this. Browne-Wilkinson J said:

"To constitute a breach of this implied term it is not necessary to show that the employer intended any repudiation of the contract: the tribunal's function is to look at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it: see British Aircraft Corporation Ltd. v. Austin [1978] I.R.L.R. 332 and Post Office v. Roberts [1980] I.R.L.R 347. The conduct of the parties has to be looked at as a whole and its cumulative impact assessed: Post Office v. Roberts."**

1. With these matters in mind, we now turn to our conclusions. Firstly, the Employment Tribunal does not have to specifically refer to the possibility that there might be a breach of contract by conduct "likely" to destroy or seriously damage the relationship of confidence and trust between the Claimant and Respondent. Here the Employment Tribunal concentrated on whether there was conduct calculated to have that effect; it may be that this approach was adopted by the Employment Tribunal because of the way the case was put as a primary case (which was rejected) of a discriminatory different treatment concerning classroom support with her comparator, Ms Gabby Wolf.

1. That is not sufficient for the Claimant, however, as it is apparent to us that it is open to the Respondent to argue as it has that the Employment Tribunal in any event found that there had been no such breach of contract by the Respondent as was likely to destroy or seriously damage the relationship between the parties.

1. It is important to note that an objective test is to require whether the conduct complained of is calculated or likely to destroy or seriously damage the relationship; the subconscious of intent of the Respondent is irrelevant as the Employment Tribunal correctly held – see decision, paragraph 33.

1. The subjective perception of the employee is also not relevant. The Respondent's conduct must be repudiatory in order to establish a breach of the implied term; it must be conduct by the Respondent which objectively considered is likely to undermine the necessary trust and confidence in the employment relationship. We are satisfied reading the judgment as a whole that the Employment Tribunal clearly found there was no such conduct having been made out. It is true that certain limited criticisms could be made of the Respondent's conduct, for example, the criticisms of her cover work which were not conveyed to her, the inability to devote more time to the Claimant while other faculty members were heavily engaged in A-levels and the failure to show Mrs Taylor's email to the Claimant. These were quite insufficient to amount to a repudiatory breach. The Respondent made out the case to the Employment Tribunal that the atmosphere in the school was generally supportive; for example, in relation to childcare issues. The Claimant was able to obtain support from Mrs Williams as her primary mentor together with support from other members of staff. Support was accepted as being satisfactory until the end of January 2008; see paragraph 11:28. The primary case of discrimination on the basis of different treatment and lack of support compared with Ms Wolf was rejected and the Employment Tribunal accepted at 11:42 Mrs Williams' supportive comments about her observations and the Claimant appeared to manage well contrary to her case to the Tribunal.

1. The Claimant received adequate support in relation to discipline (see 33). The Claimant's case in relation to detentions and hot spotting was rejected by the Employment Tribunal which found that she used hot spotting. The Claimant's difficulties arose at a time when the Respondent was unaware of the Claimant's disability after Christmas 2007. The Claimant failed to report the alleged injuries caused by pupils so they were difficult to investigate and could not be substantiated.

1. The Claimant's allegation of lack of classroom support is very difficult for her. The fact that an experienced teacher (Mrs Williams) chose not to exclude a disruptive child from a lesson but considered it preferable to allow him to calm down in class cannot properly be regarded in any way as being a breach of contract or wrongful lack of support unless it was a wholly unreasonable decision and the evidence was a very long way from that, even though the Claimant considered it undermined her position. We refer to the findings of the Employment Tribunal at paragraph 34.

1. The fact that the Claimant and other teachers returning from absence were treated in a somewhat routine manner and concerns relating to her "cover work" not being expressed to her followed by a "brusque" conversation were, as we have already pointed out, a long way from cumulatively amounting to a repudiatory breach of contract; when the Claimant returned to work for 2 days she was treated properly.

1. The failure to receive the notes at the meeting of 19 May could not be regarded as a breach or unwanted conduct as the Claimant was able to make all the points during the grievance proceedings and the Employment Tribunal had found that at that time already the Claimant had determined to resign. The failure to disclose the email investigation was of little assistance to the Claimant; it was not her complaint that her grievance had not been adequately dealt with because she had already decided to resign and did so for reasons explained in her evidence at page 128.

1. The findings of the Employment Tribunal at paragraphs 39 and 42 must be seen in the light that the conduct complained of was insufficient to raise a case of breach of trust and confidence.

1. We are satisfied that the Employment Tribunal clearly made sufficient finding of facts for the purposes of its decision.

1. The other matters relied upon by the Claimant take the case nowhere near the case of being a repudiatory breach. In all the circumstances and for the reasons we have given, we are quite satisfied that the decision of the Employment Tribunal is unimpeachable and that there was no error of law in relation to constructive dismissal; the Employment Tribunal has made all necessary and appropriate findings and adequately considered the question of the breach of the implied term. This case comes nowhere near being wrong in law or perverse and it fully complied with the "Meek" requirements.

1. In the circumstances, the appeal must be dismissed. We would like to express our gratitude to counsel for their helpful written and oral submissions.

UKEAT/0011/10/SM

-5-