McLoughlin v London Linen Supply Ltd UKEAT/0299/16/BA
Appeal against the rejection of the Claimant's claims of unfair constructive dismissal and age discrimination. Appeal allowed and remitted to a different Tribunal.
After the business the Claimant worked for, for 40 years, was sold, he was effectively sidelined. The Claimant's case was that he resigned in response to a breach by the Respondent of the implied term of trust and confidence. However, there was no reference in the ET1 to the implied term of trust and confidence; it was simply pleaded that by virtue of the matters alleged there was a constructive dismissal. The Employment Tribunal did not make a conclusive finding on the question of whether there was a breach of this term, but it decided that even if there was the Claimant did not resign in response to it. The Claimant appealed.
The EAT allowed the appeal. The Employment Tribunal erred in law in finding that, even if there was a breach of the implied term of trust and confidence by failing to communicate with him, the Claimant did not resign by reason of it. The Employment Tribunal (1) erroneously found that this matter had not been pleaded and (2) did not apply at the point of decision the correct legal test, namely whether the putative breach played a part in the Claimant's decision to resign.
Appeal No. UKEAT/0299/16/BA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 18 April 2017
HIS HONOUR JUDGE DAVID RICHARDSON
LONDON LINEN SUPPLY LIMITED (RESPONDENT)
Transcript of Proceedings
For the Appellant
MR NATHANIEL CAIDEN (of Counsel)
Simons Muirhead & Burton
8-9 Frith Street
For the Respondent
MR PIERS MARTIN (of Counsel)
Sherrards Employment Law Solicitors
4 Albourne Court
UNFAIR DISMISSAL - Constructive dismissal
The Employment Tribunal erred in law in finding that, even if there was a breach of the implied term of trust and confidence by failing to communicate with him, the Claimant did not resign by reason of it. The Employment Tribunal (1) erroneously found that this matter had not been pleaded and (2) did not apply at the point of decision the correct legal test, namely whether the putative breach played a part in the Claimant's decision to resign - Nottinghamshire County Council v Meikle  IRLR 703 applied.
Other grounds alleging perversity and failure to apply cumulative approach dismissed.**HIS HONOUR JUDGE DAVID RICHARDSON****Introduction**
- This is an appeal by Mr Michael McLoughlin ("the Claimant") against a Judgment of the Employment Tribunal sitting in Watford (Employment Judge Southam and Mrs Chatterton), dated 13 July 2016. By its Judgment the Employment Tribunal rejected claims of unfair constructive dismissal and age discrimination which he had brought against his former employer, London Linen Supply Ltd ("the Respondent").
- As we shall see, the Claimant's case was that he resigned in response to a breach by the Respondent of the implied term of trust and confidence. The Employment Tribunal did not make a conclusive finding on the question of whether there was a breach of this term, but it decided that even if there was the Claimant did not resign in response to it. Its reasoning in both these respects is challenged.
- In this Judgment I shall first draw on the Employment Tribunal's primary findings of fact. These are set out in its detailed Reasons. I shall then explain the way in which the case unfolded before the Employment Tribunal and summarise the Employment Tribunal's reasoning on the points in issue. I shall then turn to the submissions on appeal and to my own conclusions.
- The Respondent was at all material times a substantial laundry business supplying restaurants and contract caterers with a laundry and rental service for table linen, napkins, chefs' wear and uniforms. Until 2015 it was a family business, founded in 1935, the Managing Director and major shareholder in recent times being Mr Roger Oliver. Since the 1990s it had expanded rapidly. Operations increased six-fold. Profits increased 30-fold. New premises were acquired and existing premises renovated. By 2015 there were nine industrial sites.
- The Claimant was born on 1 April 1941. His association with the Respondent went back to 1967. By 2001 he was certainly an employee, and by 2006 his job title was Industrial Engineer Director. He was not a Director for the purposes of the Companies Act, but he was one of the eight Directors who reported to Mr Oliver. A key part of the Claimant's role as Industrial Engineer Director was to manage factory development projects - both expansion into new premises and renovation of existing premises. He was responsible for implementation of all these projects, using his knowledge of laundry processes and equipment and liaising with suppliers to plan and project manage them in full. He described his role as "project management in the full sense" (paragraph 10.15). These were substantial projects. For example, the overall cost of one project in which he worked in 2015 was in excess of £5 million.
- On 1 May 2015 Mr Oliver sold his shares in the Respondent to Johnson Service Group plc ("JSG"). The sale was confidential; only a few employees, not including the Claimant, were in the know. JSG had acquired a number of similar laundry companies. Its Chief Executive Officer was Mr Chris Sander. Mr Oliver withdrew from the business. There was no immediate replacement for him. Mr Sander reorganised the management of the Respondent so that in the interim there was a senior management team of three. The Claimant was told he would report to one of these three with a separate line of reporting to Mr Butler, a Senior Project Manager with JSG.
- Within a very short time Mr Sander started plans for a significant new investment at factory units adjoining the ones where the Claimant had been responsible for development. He set up a project team, led by Mr Butler. The Claimant was invited to be a member of the project team and to attend meetings, but he felt that his presence was not really welcome and that he was being included out of politeness, not being asked for his views. On 29 June he tendered his resignation, giving three months' notice. He said that although when JSG took over nothing was supposed to change, he felt that his role had become redundant. Eventually, the date of resignation was brought forward. Effectively he left his employment on 7 August, although he was paid until 31 August.
- The Claimant commenced proceedings claiming constructive unfair dismissal and age discrimination. His ET1 included the following allegations:
"5. Without any warning or consultation, in the period post the business sale, the Respondent changed the Claimant's role and removed his duties. His duties were reassigned to assisting a Group Project Manager.
6. On the day the business was sold to JLS [Johnson Linen Service], 1 May, Chris Sander CEO of Johnson Service Group plc notified the Respondent staff that £4m would be invested in the Respondent to upgrade operations. The Claimant subsequently learned that the project management of the upgrade would be led by Peter Butler JLS Development Manager. Also on that day 3 candidates for the vacant MD role were announced. The candidates were senior Respondent managers, like the Claimant, but the Claimant was not considered for the role.
7. The Claimant became aware that outline requirements were sought from suppliers based on designs of which he had no input or prior knowledge. His previous expertise in the design and development of all nine of the Respondent factory units was not called upon, and his subsequent attempts to assist in this, other than supply of information, were declined or ignored.
8. During the last 40 years the Claimant has managed every major factory development for the Respondent. At the time the Respondent was sold he was completing a development project which had lasted 3 years and was involved in further major projects, having completed concept, layout design, building surveys and architectural work. These projects were not progressed post the sale of the business.
9. At no point was the Claimant informed that his role no longer existed or that his duties would be changed.
14. Having been unilaterally removed from his position and with no placement in or offer of an actual alternative position, Mr McLoughlin considered he had no option but to resign."
- There is no reference in the ET1 to the implied term of trust and confidence; it was simply pleaded that by virtue of the matters alleged there was a constructive dismissal.
- There was then a Preliminary Hearing for case management. At that hearing, conducted before Employment Judge Lewis, it was recorded that the Claimant relied on "four elements as constituting the breach of the duty of trust and confidence"; two of the elements being the removal of his role and exclusion from his existing responsibilities. The constructive dismissal was said to be an act of age discrimination because the elements were tainted by considerations of his age.
- The Employment Tribunal final hearing took place over three days. The Claimant was represented by Mr Nathaniel Caiden, who represents him today. The Respondent was represented by Mr Soanes, a solicitor. One lay member was unfortunately indisposed. By properly recorded agreement the case proceeded to be heard by the Employment Judge and the remaining member.
- The critical part of the Employment Tribunal's Reasons begins at paragraph 15, where the Employment Tribunal concluded that, "… a significant part of [the Claimant's job] role disappeared under the new arrangements". It said:
"15. … Here, we think the claimant has established that a significant part of his role was removed. It was the exclusivity which he had in relation to the design of large infrastructure projects. It is not surprising that the respondent would wish to take stock of the proposed projects already in existence and want to implement different projects of their own. The project they pursued, in units 6-8 was a project in which the claimant did not have sole responsibility for design and development. His role continued insofar as it related to the project management of installations specifically in May and June 2015, in relation to unit 5. He had some input into the new project, but his involvement was not the same. In effect Mr Butler now had leadership of that project and there was a project team within the respondent responsible for the development of the project, whereas before the sale the claimant had sole responsibility for those matters. …"
- Mr Caiden had cited to the Employment Tribunal authorities where constructive dismissal had been found because of significant changes to the job of an employee: Coleman v S & W Baldwin  IRLR 342, Wadham Stringer Commercials v Brown  IRLR 46, and Land Securities Trillium Ltd v Thornley  IRLR 765. The Employment Tribunal summarised those authorities at length in its Reasons (see paragraphs 9.9 to 9.11). These authorities do not rest upon the implied term of trust and confidence. However, after referring to the authorities again, the Employment Tribunal said at paragraph 16:
"16. … This case is pleaded as a breach of the implied duty to maintain trust and confidence. In the light of that, the respondent is in our judgment entitled to say that the tribunal must consider whether or not they had reasonable and proper cause for the actions which they took in relation to the claimant's work."
- There is no appeal against the Employment Tribunal's conclusion in this respect. Plainly, the case proceeded as one relying upon the implied terms of trust and confidence.
- The Employment Tribunal then continued at paragraph 17 and the beginning of paragraph 18 to deal with the question of whether there was a breach of the implied term of trust and confidence. It said the following:
"17. Our view in relation to this is that the conduct of the employer not only includes their decision as to how to conduct major projects for the future but also how, if at all, their decision is communicated to the workforce they inherited on the transfer. It is a defence available to the respondent if they can show that they had reasonable and proper cause for the actions they took, to which the claimant objected. It could be no part of their reasoning to exclude the claimant from sole responsibility for project development because he was incompetent to do it. All the respondent's witnesses say that they had the utmost respect for his abilities. The only reason they could have for adopting the project team approach, led by Mr Butler, in relation to the new project was that that was how Johnson Service Group manage such projects. They are a plc, but any company is entitled to have its own methods for the management of projects. Adopting that methodology is not unreasonable. The communication of how this was to be undertaken was almost non-existent, although the claimant was able to deduce how the new owners were going to operate from their actions. The tribunal cannot identify any reasonable or proper cause for the respondent failing to inform the claimant at an early stage that was how they intended to conduct their project operations. To that extent, their conduct was without reasonable or proper cause.
18. We both agree that the absence of effective communication was bound to affect the claimant's trust and confidence in his new employers. Whether that consequence was sufficient to destroy or seriously damage his trust and confidence is a question that we find difficult to answer. …"
- In the end, therefore, the Employment Tribunal did not reach a conclusion as to whether there was a breach of the implied term of trust and confidence. The operative part of its reasoning concerned the Claimant's resignation. I shall set it out in full (paragraph 18):
"18. … However, we are of the view that the claimant did not resign his employment because of the way in which the respondent communicated its decision as to how projects would be managed in the future (and indeed this matter was not specifically pleaded). It was the decision itself, to remove from the claimant sole responsibility for new projects and to assign that responsibility to a project team, of which he was merely a member, which caused the claimant to resign. This removed responsibilities from him, although it did not affect his job title, because he would remain an industrial engineer. Although this new method of working significantly affected the claimant's role and responsibilities, our view that the employer had reasonable and proper cause to adopt that methodology means that there was not a breach of contract which led to the claimant's resignation. Although he resigned because of that, it was not a breach of contract. He did not resign because of the poor communication of the decision. For the sake of completeness, we do not think that the claimant resigned because he thought that the payment of £30,000 was inadequate. …"
- The Employment Tribunal summarised its conclusions in the following way:
"18. … Our view is that the claimant wanted to work, and to be fully engaged in work, until October 2017 and that the new method of working denied him the responsibilities and status which he had enjoyed until the sale. But that did not amount to a breach of contract as the case has been pleaded and the only potential breach is a matter which was not pleaded and which did not prompt the claimant to resign. For those reasons, he was not constructively dismissed."
- Having found that there was no constructive dismissal, the Employment Tribunal also rejected that part of the age discrimination claim that was founded upon constructive dismissal.
- On behalf of the Claimant Mr Caiden accepted the Employment Tribunal's conclusion that the Claimant's case was that the Respondent was in breach of the implied term of trust and confidence. Three of his grounds of appeal related to the Employment Tribunal's approach to the implied term, and two related to the Employment Tribunal's approach to the question of resignation.
- Fundamental to his argument was a submission that the Employment Tribunal erred in law in separating the question of whether there was a significant change to the contractual role from the question of whether that change had been properly communicated. For the purpose of the implied term of trust and confidence, these two elements had both to be considered, as the Employment Tribunal correctly held at paragraph 17 of its Reasons. Then, however, the Employment Tribunal proceeded to separate them. It was always part of the Claimant's case that his role had been changed without consulting him or telling him. Once granted his case was looked at as a whole, there was, Mr Caiden would submit, only one conclusion to which the Employment Tribunal could have come given its primary findings that a significant part of his job had disappeared and that without reasonable and proper cause there had been a failure to communicate this intention to him. It would be perverse to hold other than that there was a breach of the implied term.
- On the question of resignation Mr Caiden submitted that the Employment Tribunal applied the wrong test. The correct test is set out in Nottinghamshire County Council v Meikle  IRLR 703. It is enough that the employee resigned due at least in part to the fundamental breach. The Employment Tribunal had not applied that test. Indeed, it seemed to have relied on Norwest Holst Group Administration Ltd v Harrison  IRLR 419, a case that neither party had cited. Further, the Employment Tribunal's conclusion that lack of communication of the changes was not causative of the resignation was perverse. The Employment Tribunal appeared to be influenced by a belief that it was not sufficiently pleaded, whereas it was. The change and the failure to communicate it could not realistically have been separate considerations in the mind of the Claimant, and the Respondent's own contemporaneous note of his reasons for resignation suggested that he had not been consulted or informed since he was first told what was to happen at the outset.
- Mr Piers Martin, who did not appear below, submitted that there was no error of law in the approach of the Employment Tribunal to the implied term of trust and confidence. It did take into account both the changed content of the role and the manner of communication. Analysing them separately was not an error of law in itself. The changed content of the role was not without reasonable and proper cause. The lack of communication was, in the Employment Tribunal's finding, without reasonable and proper cause, but the Employment Tribunal found it "difficult to answer" the question whether it was sufficiently serious to amount to a breach of the implied term. Ultimately, it did not reach a decision on this question. Mr Martin submitted that if another point was properly decisive of the case the Employment Tribunal was not bound to do so. There was no rule that a failure to communicate a change in role must always be a breach of the implied term of trust and confidence. It would not be perverse to hold the contrary in a particular case.
- On the question of resignation Mr Martin submitted that the Employment Tribunal must have had in mind the principle in Meikle. It had stated it earlier in its Reasons (paragraph 9.4), even if it did not expressly return to it in its conclusions. He submitted that the Employment Tribunal did consider and did reach a finding on the question of whether the resignation was at least in part by reason of the failure of the Respondent to communicate its intentions. In so doing, it was entitled to have regard to the fact that lack of communication was not pleaded as a reason for resignation. Even if lack of communication had been mentioned earlier in the claim form, paragraph 14 - which expressly dealt with resignation - did not mention it. The Employment Tribunal's conclusion was not perverse and was consistent with other findings. He referred in particular to paragraph 10.40, which relates to a post-resignation meeting. At no point, he submitted, did the Claimant establish that the Employment Tribunal's conclusions were perverse in the sense required by Yeboah v Crofton  IRLR 634 at paragraphs 93 to 95.
- In the course of submissions I pointed out that Mr Caiden had not specifically criticised in his grounds the Employment Tribunal's conclusion that lack of communication was not pleaded. He applied for leave to amend. Mr Martin did not consent to the application, but he did not make any positive submissions contrary to it, leaving the matter to me to decide.
- The Employment Tribunal's reasoning and the arguments on this appeal are solely concerned with the implied term of trust and confidence. Where there has been an enforced change in an employee's role there may sometimes be a repudiatory breach quite apart from any breach of the implied term of trust and confidence. The cases to which I have already referred illustrate this proposition; so does Hilton v Shiner Ltd  IRLR 727. However, in the case under appeal the Claimant relied fairly and squarely on the implied term of trust and confidence.
- This term finds its modern origins in and has never been stated better than in Woods v W M Car Services (Peterborough) Ltd  IRLR 347:
"17. In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: Courtaulds Northern Textiles Ltd v Andrew  IRLR 84. 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  IRLR 332 and Post Office v Roberts  IRLR 347. The conduct of the parties has to be looked at as a whole and its cumulative impact assessed: Post Office v Roberts (supra) paragraph 50."
- This demonstrates clearly two propositions. First, it is important to assess the conduct of the parties as a whole. It may be necessary for the purpose of making findings to look at different aspects of conduct individually, but it is vital in the end to look at the overall picture. Secondly, the assessment applies an objective standard of reasonableness.
- Against this background I turn to the Employment Tribunal's reasoning. It is plain that the Employment Tribunal considered in turn the question of whether the Respondent removed a significant part of the Claimant's responsibilities and the question of whether it consulted and communicated with him about that removal. As to the first, it held that the Respondent took away a significant part of his role under the new arrangements (paragraph 15), but later it stated that there was reasonable and proper cause for doing so (paragraph 18). It then factored in the question of communication (paragraph 17). It held that this was "almost non-existent" and it was without reasonable and proper cause. The Employment Tribunal therefore considered both the removal of the Claimant's role and the failure to communicate that removal. One would then expect the Employment Tribunal at paragraph 18 to draw together the different aspects and reach a finding as to whether there was a breach of the implied term. Unfortunately, it felt unable to do so. Concentrating on the failure of communication, no doubt because it concluded that there was reasonable and proper cause for the removal of part of the role, it said that whether this was sufficient to destroy or seriously damage the Claimant's trust and confidence was "a question that we find difficult to answer". It then did not answer it. So, there is no finding on the question of breach of the implied term.
- I would add at this point that reminding itself of the wording of the implied term might have assisted the Employment Tribunal. The question is whether looking at the matter objectively the conduct was likely to destroy or damage the relationship of trust and confidence. People will react differently when they are badly treated at work. Some will put up with it; some will not. If the conduct is likely to destroy or damage the relationship of trust and confidence, the fact that some people will put up with it does not negate a breach of this implied term.
- It is true, as Mr Caiden argued, that both aspects of the Respondent's conduct had to be considered together in order to decide whether there was breach of the implied term. I have no doubt that the Employment Tribunal did so. It is impossible to suppose that the Employment Tribunal forgot its finding that the Respondent had removed a significant part of the Claimant's role. This finding is contained in and bound up with the very reasoning of the Employment Tribunal as it approached its conclusions. The real problem is that the Employment Tribunal ultimately did not reach a conclusion as to whether there was a breach of the implied term.
- This brings me to the next part of Mr Caiden's argument, to the effect that there was only one conclusion to which the Employment Tribunal could come and it was perverse not to find a breach of the implied term. There is, in my view, real strength in the argument that the Respondent's conduct was likely to destroy or damage the Claimant's trust and confidence in it given the findings that the Employment Tribunal made. Looking at the matter objectively, it would have been good practice for the Respondent, intending to begin a major new development project and taking over a company where there was an existing highly experienced engineer, to sit down with him, establish what his role had been in similar projects and discuss with him what his role would be on this project, rather than leave him to find out as the weeks went by that a significant part of his existing role had been taken from him, denying him, as the Employment Tribunal put it, the responsibilities and status he had enjoyed until the sale. Conduct of the latter kind might well be regarded as likely to destroy or seriously damage the Claimant's trust and confidence in the Respondent.
- Here, however, I must keep carefully in mind the limited role of the Employment Appeal Tribunal. It does not have a general appellate power of review relating to questions of fact or mixed questions of fact and law. It is confined to determining questions of law. It can overrule an Employment Tribunal's failure to find a fact or reach a conclusion of mixed fact and law only if the Employment Tribunal erred in law or was perverse. Mr Martin is right to remind me of the test n Yeboah v Crofton  IRLR 634. While I consider that on the findings of the Employment Tribunal the Claimant's case for breach of the implied term was strong, I do not think that I can characterise its inability to make that finding as perverse.
- I turn then to the question of resignation. The Employment Tribunal found that, assuming a breach of the implied term by reason of failure of communication, the Claimant did not resign for that reason. There appear to be two strands to the Employment Tribunal's finding; I shall take them in turn.
- The first reason given is that "the only potential breach is a matter which was not pleaded". In context, this must mean that the Employment Tribunal considered that the absence of communication that it had criticised had not been pleaded as a breach of contract. The grounds of appeal did not mention this part of the Employment Tribunal's reasoning, although criticism of it was prefigured in the Claimant's skeleton argument. Mr Caiden applied for leave to amend on this point. Late though the application is, I consider, applying Khudados v Leggate  IRLR 540, that the interests of justice weigh heavily in favour of the grant of leave to amend. No prejudice to the Respondent results from the late taking of the point. I shall in the circumstances permit leave to amend and dispense with all formalities.
- In my judgment, the Employment Tribunal's finding that the only potential breach is a matter that was not pleaded is plainly wrong (see paragraphs 5 and 9 of the claim form, which I have quoted). Mr Martin suggested that the Employment Tribunal must have meant that at paragraph 14 of the claim form the Claimant did not say that he resigned because of any absence of communication, but that is not what the Employment Tribunal said, and in any event it would not be a fair reading of the claim form as a whole. It would be an unduly narrow reading of paragraph 14 to treat it as setting out a reason for resignation that is not encompassed by those earlier paragraphs.
- It is perhaps also just possible that the Employment Tribunal may have meant that lack of communication had not been listed along with removal of role in the succinct list of issues prepared at the Preliminary Hearing, but, again, this is not what the Employment Tribunal said, and I do not think the list of issues was intended to circumscribe the pleaded case within the four areas that that list identified. It follows that the first strand of reasoning in support of the Employment Tribunal's conclusion cannot be upheld.
- The second strand of reasoning given, in summary, is that:
"… the only potential breach is a matter which was not pleaded and which did not prompt the claimant to resign."
- It is well established that the correct test to apply is whether the breach of contract "played a part" in the Claimant's decision to resign (see Meikle at paragraph 33 and the valuable discussion of this question in Wright v North Ayrshire Council. As that discussion shows, care needs to be taken with any decided cases that may give the impression that an "effective cause" test is to be applied. Experience shows that Employment Tribunals have not infrequently fallen into error on this point.
- I would expect that at this critical point in its reasoning the Employment Tribunal would ask the correct question and provide succinct reasons for its decision. The correct question would be: did the absence of communication play a part in the Claimant's decision to resign? Once the correct question is asked, it immediately becomes important to know what the Employment Tribunal's reasoning was, for it is difficult to see why there should have been any separation in the Claimant's mind between the reduction in role and the failure to inform or consult him about it. The two would surely go hand in hand for him. The Employment Tribunal had found at paragraph 10.35 of its Reasons that at the time of resignation the Respondent was aware that the Claimant felt he was "just being included out of politeness and not being asked for his views". I cannot see how the Employment Tribunal took this into account.
- The Employment Tribunal correctly cited Meikle at paragraph 9.4 of its Reasons, but it also cited Norwest Holst at paragraph 9.3, a decision that pre-dates Meikle. Norwest Holst laid down an effective cause test. It is true to say, as Mr Martin points out, that the precise quotation of the Employment Tribunal does not include the effective cause point, but I can see no real reason for Norwest Holst being in the Employment Tribunal's summary of the law at all.
- Looking at the reasoning of the Employment Tribunal as a whole, it is entirely consistent with the application of the wrong test. It would have been straightforward to have stated the correct test at paragraph 18 of its Reasons, but it did not do so. The flavour of the language used is the flavour of an effective cause test. Moreover, if the Employment Tribunal had been applying the correct legal test, it would have seen the need to explain how in the Claimant's mind the fact of a reduction in role could be distinguished from the failure of communication. Taking these factors together, I am persuaded that the Employment Tribunal applied the wrong legal approach at paragraph 18 of its Reasons.
- I would add that the Employment Tribunal would have needed to grapple not only with its own finding at paragraph 10.35 but also with passages in the Claimant's witness statement where he complained of lack of consultation (see especially paragraphs 41 and 42 but also paragraphs 11, 25 and 32). I do not go so far as to say that the Employment Tribunal's conclusion was perverse. Paragraph 10.40 of its Reasons, to which Mr Martin referred me, may be a finding that weighed in its mind, although it referred to a meeting after resignation. So, I am not persuaded that the Employment Tribunal was perverse in the sense that it was bound to find that the resignation was at least in part in response to lack of communication, but I am satisfied that it did not apply the correct legal test. It follows that the appeal will be allowed.
- This is not a case where I can substitute a decision of my own on either of the main questions in issue. I have already said that the findings were not perverse, and Jafri v Lincoln College  ICR 920 does not allow to the Employment Appeal Tribunal the latitude that would be allowed to an appellate Tribunal with a general power of review. It follows that the matter must be remitted.
- In deciding to what Tribunal remission should take place, the Employment Appeal Tribunal applies well known criteria set out in Sinclair Roche & Temperley v Heard  IRLR 763. In this case, I consider that remission should be to a differently constituted Employment Tribunal. This was a two-member Tribunal that plainly had difficulty determining one key issue in question. It would be extremely difficult to return it to that Tribunal. Also, it would have to deal with the question of age discrimination. It has not set out any findings or conclusions on that question in its present Reasons, and the matter should, to my view, go to a separate Tribunal. I would add that I am told that the Employment Judge has retired. I have not been able to verify that, but that would be another reason for remitting to a freshly constituted Employment Tribunal.
- So far as remission is concerned, I make it clear that the issues which were at 5.4 and 5.5 in the original list of issues are not remitted. What is remitted is 5.1, 5.2, 5.3 and of course the question at 5.6 whether there was a resignation in consequence. I make it plain that 5.2 and 5.3 are not to be read narrowly - they reflect the Particulars of Claim which I have quoted. Part of the Claimant's case was that there was no warning, consultation or information, and indeed it may well turn out to be that these are the aspects upon which the freshly constituted Employment Tribunal concentrates. So far as resignation is concerned, it is the Meikle test that must be applied, and the question of age discrimination relating to the elements of constructive dismissal is also remitted to the freshly constituted Employment Tribunal.
Published: 31/05/2017 10:44