The applicant was employed as a pre-registration house officer at a general hospital, on a one-year contract. Concerns about his work and mental state – at one point he took an overdose after which he was suspended on full pay – led to internal disciplinary proceedings concerning personal misconduct. However before the hearing the applicant resigned as he thought there would not be a fair hearing and, before the ET, argued that the Trust had repudiated his employment contract. The ET, though finding that the applicant had been mistreated in certain respects but the various complaints made did not amount to a breach of contract.

Before the EAT, the applicant had four main grounds of appeal, all of which were rejected. In this application he raised several issues including that the ET and the EAT had erred in not treating the Trust choice of using the personal, rather than professional, misconduct procedure as a fundamental breach. Rimer LJ rejects that submission since the ET had been justfied in finding that was not a fundamental issue in the circumstances, and also other points, as having no prospect of success.
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Case No: A2/2008/3142
Neutral Citation Number: [2010] EWCA Civ 529
IN THE COURT OF APPEAL  (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Nelson and Members
UKEAT/0103/08/ZT;UKEAT 0104/08/ZT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 16th April 2010

Before:

LORD JUSTICE RIMER

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Between:

**SUSHANT Varma (Applicant)

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North Cheshire Hospital NHS Trust (Respondent)**

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( DAR Transcript of
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The Applicant appeared in person.

The Respondent did not appear and was not represented.

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Judgment (As approved by the Court )

Crown Copyright ©

**Lord Justice Rimer:
**1. This is a renewed application for permission to appeal, presented by the applicant, Sushant Varma, in person ("the applicant").  He challenges an order dated 22 July 2008 by which the Employment Appeal Tribunal (Nelson J and Members) dismissed his appeal against the dismissal by the Liverpool Employment Tribunal (Employment Judge Reed and Members) of his claim of constructive unfair dismissal. That dismissal of his claim was based on the tribunal's finding that the applicant's resignation from his employment was not a consequence of any fundamental breach of contract by his employer, North Cheshire Hospital NHS Trust ("the Trust").

2. The applicant commenced his employment with the Trust in July 2001 as a pre-registration house officer at Halton General Hospital, having previously studied medicine at Sheffield University. The post was for one year, during which he would be trained and his fitness to practise as a doctor assessed.  Within months, concerns about him arose that were of a nature of justifiable concern to the Trust and entitled it to invoke its disciplinary procedures.  The applicant's counsel conceded as much to the Employment Tribunal.

3. In March 2002 the applicant took an overdose.  He was declared fit to return to work in May 2002, but the Trust remained concerned about his mental state and did not permit him to return although he remained on full pay. In November 2002, following what the Trust regarded as a serious error of judgment by the applicant in circulating a letter to Trust employees, the Trust suspended him and forewarned him of disciplinary proceedings. It raised a number of allegations against him and, as most of them did not go to his professional competence, the Trust invoked its internal disciplinary procedure appropriate to disciplinary issues concerning matters of personal misconduct.

4. After something of a delay, the disciplinary hearing was due to commence on 15 May 2003. The applicant attended it, but before it started he handed in his resignation letter. He told the tribunal that he had concluded that he would not receive a fair hearing and that, even if he avoided dismissal, those with whom he worked would see to it that he was dismissed anyway. His case before the tribunal was, however, that he had resigned in response to acts of mistreatment by the Trust amounting to a repudiation of his employment contract. Eight matters were relied upon. It is unnecessary to refer to all of them since the only four grounds of appeal that were permitted to proceed to a full hearing before the appeal tribunal materially narrowed the scope of the relevant debate. The particular grounds that were the subject of findings and decision by the Employment Tribunal that I must refer to are the following.

5. First, a point was made based on the fact that the applicant's contract provided that the Dean, Dr Graham, would be consulted before he was suspended. The tribunal concluded (in paragraph 16 of its reasons) that it was likely that there had been no such consultation. It also recorded that the applicant's evidence was, however, that when he resigned he believed that such a consultation had taken place. On that evidence the tribunal found (in paragraph 17) that any failure so to consult cannot have been a cause of his decision to resign.

6. Second, there was a complaint that, even though there were grounds for suspending the applicant in March 2002, the Trust delayed suspending him until November 2002. This was in part because of the Trust's wish and attempts to help the applicant, but the tribunal still found that there were grounds for criticising the Trust's delays, the tribunal saying that the Trust owed it to the applicant to deal with the matter more expeditiously.

7. Third, there was a complaint that the Trust had adopted the wrong disciplinary procedure. The choice of procedure open to it depended on whether the allegations went to professional or personal misconduct. Most of the allegations were of the latter nature but some were of the former. That being so, the tribunal held that the Trust should have invoked the procedure relating to professional misconduct, which would have afforded the applicant greater protection. The Trust did not, however, do that, but instead adopted the alternative procedure, which the tribunal held to be a mistreatment of the applicant.  The tribunal also held, however, that the adoption of that procedure was a matter that the applicant could challenge, and his own evidence was that he would have raised this very point at the disciplinary hearing on 15 May 2003 had he not resigned. Since the choice of procedure could have been addressed and rectified, its adoption was, the tribunal held, less serious than it might have been if it had involved the adoption of an irrevocable step.

8. Fourth, the tribunal held that the Trust mistreated the applicant in referring his case to the General Medical Council in December 2002 without first fully canvassing the issues with him.

9. Fifth, the tribunal held that the Trust mistreated the applicant in making that reference without at the same time notifying him that it had done so: he was not told of it until April 2004. That omission was held by the tribunal to be in breach of the requirements of a Government circular.

10. The tribunal considered whether those various heads of criticism amounted to a fundamental breach of the implied term of trust and confidence that the Trust owed the applicant. Their conclusions on that were expressed in two paragraphs at the end of their reasons, which I should quote in full:

"43.  Our conclusion therefore is that there were certain respects in which Dr Varma was mistreated by the Trust. The next step for us was to consider whether those matters might amount to a fundamental breach of the implied term relating to trust and confidence. We concluded that they did not. The most serious allegations made by Dr Varma and the ones that he appeared to be claiming had most influenced his decision to resign we determined had no foundation. Furthermore, we specifically found that the matters most proximate to the resignation did not amount to mistreatment such that there could not have been a "final straw" causing his resignation.

44.  For the sake of completeness, we did not in any event believe that the matters alleged by Dr Varma were the ones that actually led to his resignation. We considered that resignation had been a consequence of one or both of two matters, namely the fact that he had become aware, due to the disclosure of the documents in or about April 2003, of the low esteem in which he was held by his colleagues and secondly the fact that he did not wish to attend the disciplinary hearing given the very likely outcome which was his (fair) dismissal."

11. I comment that, on the face of it, those findings of fact by the tribunal made any appeal against its decision what seems to me to have been a near impossible one. They were findings that the applicant's resignation was in no manner responsive to conduct amounting to a breach by the Trust of its implied duty of trust and confidence owed to the applicant; and  were therefore findings to the effect that his constructive unfair dismissal claim was doomed to fail on the facts. Appeals to the Employment Appeal Tribunal do not lie against an Employment Tribunal's findings of fact but only against alleged errors of law.

12. Nevertheless, the applicant did seek to appeal to the appeal tribunal, originally relying on seven grounds of appeal. The appeal tribunal refused to permit three of those grounds to proceed to a full hearing and dismissed them, and there is no appeal by the applicant against that order. It did, however, permit four grounds to be pursued to a full hearing.  I must refer to each of them and explain how the appeal tribunal disposed of them.

13. Ground 1 was that the tribunal failed to deal properly with the applicant's complaint that the Trust had not acted in good faith. The foundation of this complaint was an assertion by the applicant that every step taken by the Trust had been directed at achieving his dismissal. The appeal tribunal was satisfied that the employment tribunal was well aware of, and had duly considered, this complaint. The delayed suspension to which I have earlier referred was a mark of the Trust's good faith towards the applicant. Insofar as Mr Johnston, a consultant surgeon and Chairman of the Chief Medical Staff Committee at Halton General Hospital, had formed and expressed the view that the applicant was not someone whom the Trust should employ, the appeal tribunal held that he was entitled to do so. The tribunal was also entitled to reject the applicant's complaint that he would not receive a fair disciplinary hearing. The choice of the "personal misconduct" route, rather than the "professional misconduct" route, was one that had been made on legal advice and could not therefore found a complaint of bad faith. The Trust was also under a positive duty to make the reference that it did to the GMC in December 2002 and there was no basis for an allegation of bad faith in relation to that, even though it had not yet completed its own investigations into its allegations against the applicant. The Trust was also entitled to raise as an allegation against him his refusal to permit an investigation with Sheffield University of his own suggestion that he had obtained his entry to his final examinations by improper means. The appeal tribunal therefore concluded that there was no substance in Ground 1.

14. Ground 2, as amended, was that the tribunal had wrongly judged the severity of the Trust's failure to adopt the correct disciplinary procedure. The tribunal had correctly held that the professional route should have been adopted, as is shown by the decisions of the Court of Appeal in Saeed v The Royal Wolverhampton Hospitals NHS Trust [2000] EWCA Civ 342 and of the House of Lords in Skidmore v Dartford and Gravesham NHS Trust [2003] UKHL 27. The applicant's counsel had conceded before the appeal tribunal that the adoption of the wrong procedure did not per se amount to a fundamental breach of the employment contract. Nor, more importantly, was there any evidence that the Trust had rejected any challenge by the applicant to its chosen procedure. Even if there had been evidence to that effect, the appeal tribunal concluded that the applicant's right to challenge the chosen procedure prevented the Trust's adoption of it as amounting to a fundamental breach. The appeal tribunal accordingly regarded the challenge to the tribunal's decision on Ground 2 as also without substance.

15. Ground 6 was that the tribunal had acted irrationally in finding that the applicant did not know that his suspension was unlawful. The point here made was that the suspension could itself have been a fundamental breach of contract.  It was argued on behalf of the applicant that he did not know that his suspension was not in breach of contract and that, contrary to what the tribunal had held or said in its paragraph 17, his evidence to the tribunal was in fact not that he knew that a consultation had taken place, but that he did not know whether or not it had taken place. It followed, it was submitted, that the tribunal's rejection of this head of complaint was wrong and that their finding that he had believed that the Dean had been consulted was irrational.

16. The responsive argument in relation to that point on behalf of the Trust was that, without the employment judge's notes of the applicant's evidence on this topic -- that is, of course, his oral evidence -- it could not be said that the tribunal's finding of fact in paragraph 17 was wrong, and the notes of his evidence had not been obtained. In any event, paragraph 36 of the applicant's witness statement made it clear that at the time of his resignation he did not know whether the Dean had approved the suspension, a matter on which he had not been challenged in cross-examination. He could not, it was said, therefore have been working on the basis that there was any breach of contract in this respect: he did not know whether there was one way or the other.

17. The appeal tribunal rejected this ground of appeal as well, on the basis that there were no grounds for a challenge to the tribunal's finding or for any assertion that its finding on this issue was irrational.  Its view was that it had to work on the premise that the tribunal's understanding, in the absence of any notes to the contrary, was that the applicant's evidence was that at the date of his resignation it was his understanding that a consultation had taken place.

18. Finally, Ground 7, the fourth ground of appeal, criticised the tribunal's findings in paragraph 44 of its reasons (which I have quoted earlier in full) as to why the applicant resigned. It was said that the tribunal had not taken into account the Trust's apparent bad faith and the determination of the applicant's colleagues to see him dismissed and had prejudged the fairness of any dismissal by failing to take into account the inappropriateness of the chosen disciplinary procedure. It was said that the tribunal should have adopted an objective test of whether there was a breach of the implied term of trust and confidence and whether the applicant had resigned in response to it. The appeal tribunal gave fairly short shrift to this argument, on the basis that there was ample evidence for the tribunal's finding as to the real reason for the resignation, namely: (i) the low esteem in which the applicant had come to recognise that his colleagues held him; and (ii) his estimation that the outcome of the disciplinary hearing was likely to be that he would be fairly dismissed.  The appeal tribunal pointed out that the employment tribunal had specifically rejected the applicant's evidence as to the reasons leading to his resignation.

19. The applicant's appellant's notice to this court is apparently dated 13 August 2008, which was either in time or at most a day late for an appeal against the appeal tribunal's order although, for reasons of which I am unaware, it was not apparently sealed by the court until 31 December 2008.  I also do not know what the explanation is for the long delay thereafter until Sir David Keene ruled on the papers on 23 October 2009 that an appeal would have no real prospect of success. In support of his permission application, which the applicant has now renewed before me, the applicant has produced a very great deal of written material and I commend the enormous industry that he has applied in the preparation and presentation of his case.

20. First, he has produced an 86-page skeleton argument comprising some 349 paragraphs. By any standards that is a long document although, as I am sure the applicant will understand, length does not automatically mean quality, and all that I am primarily concerned with is whether it identifies any grounds disclosing that the employment tribunal arguably committed any errors of law in any of the four particular respects that were the subject of the applicant's unsuccessful appeal to the appeal tribunal. I have read the whole of that written argument but consider that it is unnecessary to focus on it in the closest detail since it includes a good deal of repetition, long and strictly unnecessary quotations from various reported authorities, frequent diversions into what I would respectfully suggest are strictly irrelevant byways and also a detailed historical account of the applicant's take on the facts, which I have to say I do not find helpful having regard to the narrow scope of my function at this stage of the proceedings. Secondly, and in addition to that long skeleton argument, the applicant yesterday provided a further file of submissions in which he explained that he is proposing to apply to the European Court of Human Rights and that, whilst he does not expect to be successful in this renewed permission application, he has made it in order to show that he has exhausted all his national remedies. I will deal first with the points that the applicant raises in his 86-page skeleton argument.

21. The applicant complains generally that the appeal tribunal, and I think perhaps also the employment tribunal, did not consider in detail various well-known reported authorities. It is true that they did not. The omission to do so is, however, no reflection of any error on the part of those tribunals. The question is whether they correctly applied the principles that are to be found in the authorities.

22. More particularly, the applicant complains first that the appeal tribunal did not sufficiently consider the cases showing that the Trust adopted the wrong disciplinary procedure. He points out that, in doing so, the Trust committed a breach of contract.  In the course of his clear and succinct oral address to me this morning, he referred me to the decisions of the Court of Appeal and the House of Lords in Saeed and Skidmore, although his further references to those authorities did not establish anything of which either the employment tribunal or the appeal tribunal was apparently unaware or ignored, namely that the Trust should have adopted the "professional conduct" procedure rather than the "personal conduct" procedure. I have already explained, however, why, in the particular circumstances of this case, that error was not regarded by the tribunals below as amounting to a fundamental breach of contract, nor, as the tribunal found, and this is the more significant point, was it an error causative of the applicant's decision to resign.

23. There is therefore, in my judgment, simply no point open to the applicant in reliance on the Saeed and Skidmore authorities that can be made to this court. The applicant suggests that the case should be remitted to the Employment Tribunal on this ground alone but, with respect to that submission, I simply do not understand it. If the applicant had been prepared to allow the disciplinary hearing to proceed he could have raised his objection to the chosen procedure; and, had his objection been overruled, he could have challenged the Trust's insistence on proceeding with that procedure; but, as I have explained, he chose not to do so. He chose instead to abort the proceedings by tendering his resignation.  It is, I consider, impossible for him now to complain about the adoption of a procedure which he could have challenged but chose not to, preferring instead to allow the disciplinary proceedings to be brought to a premature full stop. The appeal tribunal gave cogent reasons why the adoption of the wrong procedure was not part of a course of conduct causing the applicant to resign.  In my judgment there is no substance in this head of complaint.

24. I add that in his written argument the applicant suggested that the House of Lords in Skidmore ruled that the adoption of the wrong procedure was evidence of bad faith. I do not myself read the House as having anywhere so ruled and I would have been surprised if it had; and, in any event, in the present case the appeal tribunal rejected any suggestion that the adopted procedure provided any basis for an assertion of bad faith against the Trust which, as I have said, acted on legal advice.  I invited the applicant to identify the particular passage in Skidmore on which he was relying, but he was unable to point to it.

25. The applicant complains next that his suspension was a breach of the implied term of mutual trust and confidence because it was made without justification.  I am prepared to accept that a suspension made without just cause might well constitute such a breach, but the making of this particular case appears to be a bid by the applicant to make a case that was not made on his behalf in either tribunal below. The case there made by counsel on his behalf was not that the suspension was effected without just cause; it was apparently confined to the narrower point as to whether the suspension had been preceded by the necessary consultation with the Dean. The appeal tribunal's rejection of the applicant's case on that is, in my view, unassailable, and it is not open to the applicant to attempt now to open up some new and wider factual case in the Court of Appeal to the effect that the suspension was anyway unlawful.

26. In advancing this case, and as the applicant again reminded me in his address this morning, he places considerable reliance on a disclosed email of 4 November 2002 in which Mr Ramage, the Trust's solicitor, apparently admitted that the suspension was in breach of contract. The applicant makes the point that it follows that, when he resigned in May 2003, he knew of that admission and therefore of the unlawfulness of the suspension. I follow the point but also note that no reference to that email was made by either tribunal below. It was referred to by the Employment Appeal Tribunal in its judgment on an earlier appeal following earlier tribunal proceedings, but I am not concerned with what was said by the appeal tribunal in that appeal; I am concerned with the decision of the employment tribunal now under challenge and the decision of the appeal tribunal on appeal against that decision.

27. Counsel who appeared for the applicant below is not here to explain whether he did in fact deploy that email before either tribunal, and if so to what effect, nor do I have his skeleton argument for either tribunal hearing. The only inference that I can draw from the judgments of the tribunals below is that no point on that email was made by counsel either to the employment tribunal or to the appeal tribunal. It is apparent from the judgments of both tribunals that any issue as to the lawfulness of the suspension was confined to whether or not there had been prior consultation with the Dean. The applicant's point now made and developed in his skeleton argument that, quite apart from any consultation with the Dean, the suspension was unjustified and unlawful and so contributed to his decision to resign, is apparently a new fact-based point that is not open to him to take for the first time in the Court of Appeal.

28. The applicant complains next that the appeal tribunal did not deal expressly with the decision of the Court of Appeal in London Borough of  Waltham Forest v Omilaju [2004] EWCA Civ 1493, which deals with constructive dismissal and the "last straw" doctrine. I see no reason why the appeal tribunal should have done so. The principles are well known and the employment tribunal had found the facts that provoked the applicant's decision to resign -- a decision that was not responsive, so it found, to any cumulative course of conduct by the Trust amounting to a breach of the implied term of trust and confidence. The applicant wants to argue before the Court of Appeal that the Trust's conduct, in alleged breach of the implied term of trust and confidence, did cause his decision to resign. There is no prospect of a successful appeal on that ground. That is because the employment tribunal has found the facts as to why the applicant chose to resign. I have quoted them earlier verbatim and they were fatal to the claim that he resigned in response to conduct amounting to a breach of the implied term. The Court of Appeal, as I have said probably more than once already, is not a court in which such factual issues can be re-opened.

29. At paragraph 95 of his skeleton argument the applicant embarked upon a detailed chronology of events from his viewpoint, explaining that he had had to do so in order to show the bad faith that the employment tribunal declined to find.  Paragraph 95 concludes with the statement that:

"The issue here is that to this day nobody has ever heard my side of the story."

30. That assertion effectively brings the shutters down on the long and somewhat discursive explanation that then follows. The applicant was the claimant in these proceedings. He was entitled to give evidence, and did so, and he was entitled to explain in the closest detail the entirety of his side of the story. He was also entitled, via his counsel, to cross-examine the opposing witnesses. I infer that he is tacitly acknowledging that his case was not presented as fully as he would have liked. If so, he may perhaps have been disadvantaged, but he cannot hope to put that right now. The only question is whether the employment tribunal arguably made any errors of law in relation to the four specific issues canvassed before the appeal tribunal. It is simply not open to the applicant to attempt now to re-open the facts and perhaps to seek to introduce new ones in an attempt to challenge the findings of fact by the employment tribunal. The evidence has been led, the facts have been found, and, as far as the Court of Appeal is concerned, the evidential door is now closed. The employment tribunal knew that bad faith was being alleged by the applicant; it declined to find that any such case was established, and the appeal tribunal gave its reasons for refusing to conclude that the tribunal was in error in that respect. There is no real prospect of the Court of Appeal taking a different view. The fact-finding tribunal in these proceedings was the employment tribunal, and there is no basis for any challenge to its findings.

31. Turning now to the supplemental submissions that I received yesterday, the applicant first makes an application to adjourn this hearing until after a General Medical Council investigation into Dr G.J. Murphy has been concluded.  The applicant had, he tells me, earlier sought, but been refused, an adjournment on that ground, but he repeated the application to me this morning. He has told me that the hearing in relation to Dr Murphy is due to take place in September 2010 so that, for practical purposes, he is asking for an adjournment of perhaps six months. The proposition he advances is that, if Dr Murphy is found guilty as charged, it will, it is said, prove that the tribunal's verdict was arrived at on the basis of perjured evidence so that in consequence its order cannot stand.

32. Dr Murphy did give evidence to the tribunal although the tribunal does not refer in terms to what it amounted to. The applicant himself does not identify with precision in what respect Dr Murphy may, as he asserts, be shown to have given perjured evidence to the tribunal, although I understand that it relates to the question of his suspension. In particular, I understand the applicant's position to be that one of the matters that the GMC will be investigating is whether Dr Murphy gave truthful evidence to the employment tribunal in denying, as I am told he did, that he had failed to use what the applicant refers to as the "proper contractual procedure" in relation to the applicant's suspension.

33. Even assuming in the applicant's favour that this is a matter that the GMC will be investigating, I fail to see how any verdict by the GMC on the matter can make any difference to the applicant's position in relation to the suspension issue. I have explained the finding that the employment tribunal made on that and how the appeal tribunal concluded, for the reasons it gave, that there was no basis on which it could question that finding. The net effect of that finding was that, whether the suspension was or was not unlawfully affected, it had no impact on the applicant's decision to resign. The applicant has repeated to me this morning his assertion that, in making the finding that it did as to his evidence on this topic, the employment tribunal misquoted him. I am, however, in that respect in precisely the same position as the appeal tribunal. I too have no transcript of the evidence given before the tribunal, nor even a copy of the employment judge's notes of the evidence. Given the absence of such material, the applicant's bid to challenge the finding of fact made by the tribunal is, with respect, hopeless. It follows that I am not persuaded that there is any basis for an adjournment of this hearing and I refuse the applicant's renewed application for its adjournment.

34. The applicant then returns in his further submissions to the point that the Trust adopted the wrong disciplinary procedure and adds a detailed chronology of his professional life at Halton General Hospital. As I have endeavoured to explain, this is simply not the occasion to be adducing evidence of that sort, which may or may not include new evidence. The applicant's task at this stage is to identify that the tribunal made an error of law. For reasons I have given, I can see no such error as far as concerns the choice of disciplinary procedure.

35. The applicant complains next, or may perhaps be complaining, that as he did not have legal aid before the tribunal, he did not enjoy equality of arms with the Trust. If that point is being made, and perhaps it is not, I simply do not understand it. The judgments of both the tribunal and the appeal tribunal show that he was represented by Mr Oliver Hyams of counsel, who was apparently instructed by Messrs John Ford solicitors. There was therefore complete equality of arms.

36. The applicant then makes complaints about the delays and the handling of his case by the tribunal, the appeal tribunal and the Court of Appeal. Whether there is any merit in any of those complaints, they do not demonstrate a relevant error of law by the tribunal of a nature justifying permission to appeal. The applicant then makes various complaints, apparently to the effect that he had an unfair hearing at the tribunal. As I understand it, those are new points that it is not open to the applicant to raise at this stage of the proceedings. He then makes various generalised points which do not appear to me to focus in any way on the four grounds of appeal that he was permitted to and did advance to the appeal tribunal.  Again, to the extent that he is seeking to open up new grounds of appeal, it is too late. I have read the whole of what the applicant has set out in his statement in tab 3 of his further submissions, headed "Supplementary Notice of Appeal/Summary of Case", but I hope the applicant will forgive me if I say no more about it than that I am not persuaded that any of the collection of largely unrelated points he there makes, which also include a second factual chronology, add anything new to his earlier points or provide separate grounds for an appeal.

37. Tab 4 of the same supplemental bundle contains a yet further long written submission covering some 85 pages. It covers a wide-ranging list of complaints and criticisms, makes several points that have been made before, but in many respects goes yet further from any focussed consideration of the decisions below of which the applicant complains and includes yet another long chronology of events. In my view, it raises no arguable points as to why the decisions of the tribunals below were wrong in law.

38. In my judgment the applicant's appeal has no prospect of success.  I agree with Sir David Keene's opinion, expressed on the papers on 23 October 2009, that the applicant has no realistic prospect of showing that either tribunal erred in law. As Sir David pointed out, the employment tribunal was entitled to find that there was no fundamental breach by the Trust of the employment contract and that, insofar as the Trust mistreated the applicant in any way, such mistreatment was not causative of his resignation. The applicant's difficulty in identifying any ground for complaint about the tribunal's decision is that the case before the tribunal was not one that turned on any difficult issues of law; it turned on the facts. It was the tribunal's duty to make findings as to the facts, so far as they were in dispute, and it did so. There is no basis for a challenge to those findings, which were fatal to the applicant's case. I refuse this application for permission to appeal.

Order: Application refused