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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> TSB Bank Plc v Harris [1999] UKEAT 1145_97_0112 (1 December 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/1145_97_0112.html Cite as: [1999] UKEAT 1145_97_0112, [1999] UKEAT 1145_97_112

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APPEARANCES

 

For the Appellants	MR ROY LEMON (of Counsel) Messrs Moore & Blatch Solicitors 11 The Avenue Southampton SO17 1XF
For the Respondent	MR JOHN BENSON (of Counsel) Messrs Cuff Roberts Solicitors 100 Old Hall Street Liverpool L3 9TD


 


JUDGE JOHN ALTMAN:

1. This is an Appeal from two decisions of the Employment Tribunal sitting in Liverpool. The first followed a Hearing over 5 days between December 1996 and April 1997 and resulted in a finding that the Respondent had been unfairly dismissed.
2. The second was a decision on an application for a review on 29^th September 1997. The application was granted and the result of the Review was a finding that the Appellants were in breach of the Respondent's Contract of Employment arising out of the same circumstances as the first decision.
3. The Employment Tribunal found that the Respondent was constructively and unfairly dismissed. We have considered the Notice of Appeal in detail, but in general terms it is alleged that the Employment Tribunal failed to listen to the case, failed to make appropriate findings of fact on the face of the decision, and, instead, appear to have relied on general impression. It is alleged that they reached conclusions on the issues of fact and on the general findings that no reasonable Tribunal, properly directing itself, could have reached. Inevitably, proper consideration of such grounds of appeal require us to examine the evidence before and the findings of the Tribunal in some detail.
4. The Respondent began employment in March 1993 as a Savings and Investment Adviser. A number of episodes during her employment were referred to by the Tribunal.

(a) Between 1993 and July 1996 the Respondent performed well at her job. The Respondent underwent a "Personal Improvement Plan" which appears to have been in about March 1996. The Employment Tribunal found that

"It is rather doubtful if she needed such a plan, but she co-operated with it and performed capably."

(b) On 3^rd April 1995, the Respondent was given a final written warning, for 6 months, for an act of forgery. She corrected an entry on a form and herself initialled it with the customer's initials so as to save time.

(c) The Employment Tribunal found that at times during her employment, including her period of previous employment, the Appellants received complaints from customers about the Respondent.

(d) During 1995 and 1996, the Employment Tribunal found that the Respondent went through what the Chairman described as "a rough patch" due to the holding up of her promotion and the death of her mother.

(e) In 1966 a new Branch Manager, Mrs Smith, began. The Employment Tribunal found this was a source of pressure for the Respondent.

(f) In April 1996, the Respondent applied for a job with the Prudential Assurance Company. At her interview she explained the forgery and the Employment Tribunal found this was accepted by the Prudential. However, they also sought references from the Appellants. The references were in evidence before the Employment Tribunal. They summarised them by finding:

"Those revealed that 17 complaints had been made against her of which 4 were upheld and 8 were outstanding."

(g) The Respondent had only ever been informed about 2 of these. She had had no opportunity to give an explanation either to the Appellants, from time to time when the complaints arose, so as to contribute to their evaluation, or to the Prudential, when they told her they had received details of them.

5. The Employment Tribunal considered whether the Respondent was dismissed as provided for in Section 95(i)(c) of the Employment Rights Act 1996, that is where

"The Employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the Employer's conduct."

6. In paragraph 5 of their decision the Employment Tribunal sets out the questions to ask in applying what they called "the contract test"; were the Appellants in breach, was the breach fundamental, did the breach cause the resignation, and was there an affirmation. The Employment Tribunal then continued:

"5(b)We decided that the (Appellants) were in breach of the implied term in the (Respondent's) contract of employment that they would not so conduct themselves as, on a reasonable analysis, to forfeit her trust and confidence in them. That term as to trust and confidence is fundamental to the contract of employment, to the entire relationship of employer and employee."

7. In the following sentence the Employment Tribunal encapsulated their application of the facts, which they had found earlier in the decision, to the principles of law which they had set out:

"5(c) The management of the Applicant by attacking her confidence and in particular, Mrs Smith's treatment of her, and the Respondents' radical use of unrevealed complaints to block her progress comprised the conduct that together amounted to the breach."

The Tribunal found that this breach caused the Respondent to leave her employment when she did. They held that the Respondent did not affirm the contract in its breach. They found that there was a constructive dismissal.

8. The grounds of appeal are set out in paragraph 6. In 6.1 it is alleged that the Employment Tribunal failed to listen to and pay proper attention to the case presented to them. This is a serious and sweeping allegation. In paragraph 2(b) of their decision the Tribunal erroneously stated that the Respondent had abandoned her complaints other than of unfair dismissal. However there was also a claim in contract. It seems to us that is just the sort of mistake or oversight which the most experienced of Tribunals will commit from time to time without its providing any basis for any generalised conclusions. The only other example, cited by Mr Lemon in his skeleton argument on behalf of the Appellants, relates to the evidence of Sally Day, which we deal with below. We find this ground of appeal is unsupported.
9. Paragraph 6.4 of the grounds of appeal refers to paragraph 5 (c) of the decision of the Employment Tribunal, quoted above, in which the 3 elements constituting the breach of contract by the Appellants are set out. Mr Lemon has analysed that finding in support of the submission that it is impossible for the Appellants to know why they have lost on those points, and impossible to know what findings of fact related to those conclusions. Furthermore, in considering the facts that could have given rise to such a conclusion, he submits that they were not capable of such construction by a reasonable Tribunal directing itself in accordance with the law. The grounds of appeal in relation to these submissions are amplified in paragraphs 6.5 to 6.12, to which I turn.
10. The Employment Tribunal is criticised first for its finding 'an attack on the confidence of the Respondent', secondly in its findings about Mrs Smith's treatment of the Respondent and thirdly in its findings as to the Appellants treatment of complaints.

The "attack on her confidence, other than that relating to Mrs Smith"

11. Mr Lemon alleged that it was not clear to which findings of fact this related. He said it was necessary to guess; it may have related to the 'personal improvement plan', and/or delay in the Respondent's promotion and/or a letter of the 25^th June 1996. Paragraph 5(c) of the decision appears to have been a summary of what went before. It is necessary, in considering this criticism, to examine the structure of the decision.
12. Having summarised the issues in paragraph 2 and having set out the names of the representatives and witnesses in paragraph 3, the Tribunal made findings of fact in paragraph 4. To identify the facts referred to in paragraph 5, therefore, it is only necessary to look back to paragraph 4. There are findings of fact in paragraphs 4(a) to (f). In paragraph 4(g) there is then a summary of such of those facts which the Tribunal are carrying forward as part of their findings on the issues they have set out:

"Between everything, the delay in her promotion, the oppressive treatment by Mrs Smith, the treating her as thought she were not competent, she began to feel disillusioned with the respondents. She had much reason for complaint. Some things she exaggerated: she felt too keenly the deprivation of a superior model of car. But on the whole, she was managed ruthlessly and too severely. It was to be expected that she began thinking of employment with another firm."

In the rest of paragraph 4 the Employment Tribunal considered the use of 'unrevealed complaints' in the reference for prospective new employers. Accordingly the findings of fact upon which the conclusion in paragraph 5(c) is based are clearly set out in paragraph 4, and the 'attack on her confidence' are those set out in paragraph 4 (a) to (f), to the extent carried forward in paragraph 4(g). Paragraph 4 (a) refers to the personal improvement plan, and it appears that Mr Lemon is correct in identifying it as part of the 'attack', though we find that this is clear on the face of the decision. Paragraph (b) relates to the forgery allegation. The Tribunal do not appear to criticise the way this matter was dealt with at the time as a disciplinary matter, although they refer to it later in the context of the way it was described in the reference to prospective employers. Mr Lemon did not refer to it as part of the 'attack' and it does not appear to have been included in the summary in paragraph 4(g). Paragraphs (c) and (d) related to the complaints, which were not disclosed at that stage and were not summarised as part of the 'attack' in paragraph 4 (g) and were dealt with later. Paragraph 4(e) related to the delayed promotion, was referred to in paragraph 4(g) and was part of the 'attack'. Paragraph 4(f) related to the treatment by Mrs Smith, also dealt with separately. Accordingly on the face of their decision the tribunal found that the facts which led to their conclusions as to the 'attack on her confidence other than by Mrs Smith', were the placing on the 'Personal Improvement Plan' and the delayed promotion. Accordingly it does not appear necessary to guess what the Tribunal were referring to. Mr Lemon criticises the approach of the Employment Tribunal to the personal improvement plan and the delayed promotion and we consider each in turn.

13. First, the Tribunal found that the Respondent performed well at her job but

"the Respondent wanted to improve performance at her branch and she was one of those put on the Personal Improvement Plan. It is rather doubtful if she needed such a plan, but she co-operated with it and performed capably…."

This was, so it appears, what is referred to when in paragraph 4(g) the Employment Tribunal described it as

"the treating her as though she were not competent".

Mr Lemon complains that this was not an "attack" on her confidence, but that is, in our judgment an over-literal interpretation of the word. The Tribunal were clearly using the word "attack" loosely in the sense of something which caused damage to the Respondent's confidence. It may be that the use of the word "attack" could have been better expressed because, on one reading it seems to imply a degree of deliberateness on the part of the Appellants, but looking at the decision overall it is clear, as it seems to us, that the Employment Tribunal were not using the word in that sense and they did not make any finding of deliberateness in that connection. They were referring to the effect of the actions rather than the purpose behind them, as is clear from the whole context of the word 'attack'. Indeed later in that decision, the Tribunal referred to "a steady erosion of confidence", which may be a more felicitous means of expression. We find no basis for a substantial and valid criticism of the Employment Tribunal's use of the word 'attack'.

14. Additionally, Mr Lemon, points out that the Tribunal did not find that the Respondent had no need of such a plan, and he argued that in any event the tribunal erred in forming their own view as to whether she needed a plan rather than whether the employer could properly and did so conclude. He also points out that her putting on the plan was not a disciplinary step nor a breach of contract. He also asserts that no reasonable Tribunal, properly directing itself, could conclude that the employer could not properly form the view that the Respondent should be put on such a plan, bearing in mind the record of the Respondent's actual performance.
15. However, it does seem important to consider what the tribunal actually found about the personal improvement plan. It is true that in her original evidence, the Respondent complained that she was treated more harshly in the target which formed the benchmark for admission to this plan, than others who were performing below her, and that, therefore, she was unfairly treated. However, it is clear that this was explored in some considerable detail in the evidence, for we have the Chairman's Notes of Evidence. I digress to record that we are enormously indebted for the very full notes of evidence with which we have been supplied. At the end of hearing the evidence, the Employment Tribunal found in paragraph 4(a) only that;

"It is rather doubtful if she needed such a plan, but she co-operated with it and performed capably."

16. That appears the highest that this aspect of the Respondent's complaints about the performance improvement plan were put by the Employment Tribunal itself. It does not appear that the Employment Tribunal adopted the Respondent's claim that she was unfairly treated and as appears from their findings in paragraph 4(a) they themselves did not place a lot of weight on this particular aspect of the Respondent's complaints. Indeed in paragraph 5 (c) this is echoed by the words of the Tribunal which record the eroding of confidence, but go on to emphasise the other matters as being of greater importance with the words 'and in particular…'. Furthermore it seems to be overstating the position to say that the Employment Tribunal substituted their own view by using the words 'it is rather doubtful if she needed such a plan'. The effect of the words used by the tribunal is that they recorded that this was one matter raised by the Respondent but that their view was rather inconclusive, and they were not endorsing it wholeheartedly as a matter of complaint. Although there are the findings of fact in paragraph 4(a) as to the personal improvement plan, having dealt with that, and other features in subsequent sub-paragraphs, the Employment Tribunal made a secondary finding of fact based upon them in paragraph 4(g):

"Between everything…she began to feel disillusioned with the Respondents. She had much reason for complaint. Some things she exaggerated…But on the whole she was managed ruthlessly and too severely…"

Looking at the way the primary findings are expressed in relation to the personal improvement plan and then seeing how the overall position is then expressed it is clear that the plan formed a small part of any finding of breach of contract, if any. We accept that technically there does not appear to have been the factual basis contained in the decision for criticising the Appellants' decision to place the Respondent on the personal improvement plan, but Mr Benson has pointed out that there was material in the evidence before the Tribunal to support a finding of singling out in relation to the performance of others. We also accept that in the form of words used by the Tribunal they did not ask themselves if the Appellants were reasonable in placing the Respondent on the personal improvement plan. Nonetheless we find that any such error was marginal and that there was no error of law in this connection which formed any significant part of the findings of the Tribunal.

17. As to the delay in the promotion of the Respondent, in paragraph 6.7 of the notice of appeal it is contended that there was no 'attack' and that it is not clear that what the Employment Tribunal was referring to was the delay in promotion. We reject those points for the same reason as we rejected the equivalent arguments in relation to the personal improvement plan. It is clear to us that the words "attacking her confidence" in paragraph 5(c) referred back in part to the finding in paragraph 4(g) that "the delay in her promotion" contributed to her disillusion and that this in turn referred back to paragraph 4(e) which contained the finding that "a promotion she had been promised was held up".
18. It is further argued on behalf of the appellant that the finding of delay in promotion as a contribution to the constructive dismissal was a conclusion that no reasonable tribunal properly directing itself on the facts and the law could have reached. This is because, first, part of the reason for the delay was the final warning for forgery, which being an extremely serious matter was good reason to hold up promotion, and, secondly and in any case, the promotion had been implemented in early 1996 "long before termination". However, these two features do not represent all the issues which related to the delay in the promotion. There was clear evidence, about which there appears to have been no dispute in that it was unchallenged, to which we were referred by Mr Benson.
19. We were referred first to a letter from the Union Representative. In it he wrote that he was interceding on behalf of the Respondent because, although she had been promised her promotion when her disciplinary warning ran out at the end of October 1995, and although a public announcement of the promotion had been made, by early 1996 this had still not been implemented. Secondly, the Respondent was then being told, apparently, that the post was no longer available for her. Thirdly, in her evidence, she referred to the fact that she had to keep dealing with the personnel section about it. The Respondent stated the delay in implementing her promotion as her first complaint in her Originating Application which stood as part of her evidence in chief.
20. Additionally, it appears that the delay in promotion caused by the disciplinary process resulting from the 'forgery' does not appear to have been relevant because it is the period after the running out of the warning that is referred to. Further, the fact that the promotion was implemented before the end of employment does not prevent its contributing to the cumulative actions of the Appellants which the Employment Tribunal found to constitute the operative breach of contract. It seems to us there was ample material for the Employment Tribunal to conclude that a promised promotion was held up, that the delay in her promotion made her feel disillusioned, and to lead her to have what they described as "much reason for complaint". It was clearly being referred to by the Employment Tribunal as part of the "erosion of confidence." It seems to us there was evidence upon which the Employment Tribunal were entitled to conclude as they did and that they clearly based their findings upon such evidence. The fact that the Respondent continued in employment after the delay in promotion had ended may be evidence of waiver of this matter, so far as it may be a single breach of contract. However, this delay does not, it seems to us, prevent the Employment Tribunal's relying on it as part of the factual material which combined to contribute to the final cumulative breach which they found.
21. The next matter which Mr Lemon suggests may have been part of the Tribunal's decision is a letter of 25^th June 1996. However, it appears to have formed no part of the Employment Tribunal's decision.
22. The next group of complaints which the Employment Tribunal found related to the treatment of the Respondent by Mrs Smith who became her Branch Manager in March 1996. They found as follows:

"4(f)… Mrs Smith wanted urgently to effect a profound improvement in the performance of the branch. She is a strong personality and adopted strong measures. We accepted what the Applicant said about their relationship. The Applicant, with some reason, felt bullied. She was unsympathetically treated over her mother's death. She was put under pressure during her sick leave.

(g) Between everything … the oppressive treatment by Mrs Smith…. she began to feel disillusioned with the Respondents. She had much reason for complaint. Some things she exaggerated … but on the whole, she was managed ruthlessly and too severely."

23. Mr Lemon takes issue with the word "felt" bullied and said that a feeling cannot be a breach of contract. That submission, it seems to us, overlooks the finding of fact of the Tribunal that that feeling was "with some reason". The complaint is that the Tribunal did not identify the events alleged to have caused the feeling of being bullied and that the parties cannot determine from the decision whether the events were simply part and parcel of legitimate management pressure or a breach of contract. However, The facts relied on by the Tribunal are referred to in the preceding and succeeding sentences, namely their acceptance of the evidence of the Respondent in the preceding sentence and the unsympathetic treatment over the Respondent's mother's death and the pressure the Respondent was put under during her sick leave in the succeeding sentence. We find that the Employment Tribunal made clear on what findings of fact this conclusion was based. It is then said that it is not possible to discern whether these actions were anything other than proper pressure and we refer to each in turn.
24. The acceptance by the Tribunal in paragraph 4(f) of their decision of the evidence of the Respondent about the relationship between her and Mrs Smith refers back to paragraph 3 of the Originating Application and the extensive exploration of this in the evidence. It is true, in general terms, that where a Tribunal simply says "We prefer the evidence of X to the evidence of Y" without more, parties, and indeed the Employment Appeal Tribunal, frequently will be left wondering what was the real factual basis for coming to that conclusion and what parts did the Tribunal accept and what parts reject.
25. However, in this case, evidence was taken over a number of days. The essential issue was a clash of personality together with what appears to have been an allegedly overbearing attitude by Mrs Smith.
26. In her Originating Application the Respondent spoke of the changing atmosphere when Mrs Smith arrived. She spoke of the hostile attitude towards the Respondent which made "my working life intolerable". She specified criticisms of the way in which the Respondent carried out her duties, her performance levels even when she achieved targets, that Mrs Smith suggested on a number of occasions that the Respondent should resign and that Mrs Smith subjected her to constant harassment. Bearing in mind the dicta in the case of Meek to which we refer later, we are satisfied that there were clear facts and evidence upon which the Employment Tribunal were entitled to accept the evidence of the Respondent on these matters.
27. So far as the unsympathetic treatment over the death of the Respondent's mother is concerned, the evidence does show that Mrs Smith asked the Respondent whether she had not come back to work too soon. That in itself may, as Mr Lemon submitted, be consistent only with an expression of sympathy. However, on behalf of the Respondent our attention is drawn to the context in which the evidence dealt with this. It was towards the end of the Respondent's cross-examination. The Respondent had been given a test for which she had not prepared and which she delayed in completing. Consequent upon the test, Mrs Smith said "Are you coming back too soon?" That comment may have been sympathetic but it also permits of a wholly different construction. We find that the Employment Tribunal were entitled to construe that reply as they did and in accordance with the complaint of the Respondent.
28. So far as pressure during sick leave is concerned, the Respondent had given evidence that she was harassed on the telephone whilst she was away sick and the Respondent complained in her Originating Application that that happened to such an extent that the Respondent's solicitor had to write a letter of complaint about it. We find that the Employment Tribunal did not view this as consistent with appropriate management pressure, and that they were entitled, on the facts and on this matter, to come to the conclusion which they did.
29. The fact that the events surrounding the death of the Respondent's mother and her sick leave were some time before termination of the contract is advanced by Mr Lemon in support of his allegation that the Tribunal were 'perverse' in relying on them. The delay was apparent to be weighed in the balance and it does not in our judgment disentitle the Employment Tribunal from taking these factors into account in the way they did.
30. The conclusion of the Tribunal was that "On the whole, she was managed ruthlessly and too severely." On the face of it, that does appear fairly strong language. However, we remind ourselves that the material is presented to us only in written form and the Employment Tribunal had the opportunity of observing and hearing the witnesses. Where a hearing has gone on for so very long, where there has been the sort of clash of personality that is referred to here and where, at the very heart of the decision of the Employment Tribunal, is the need to assess the personalities and the conduct of individuals, we would be very slow to interfere with the conclusions of the Tribunal as expressed in this case. The narrowness of the evidence as to the unsympathetic treatment over the Respondent's mother's death makes it clear as to what was included in the Tribunal's decision and the same is true of the interruptions of sick leave.
31. Mr Lemon further contends that in relation to the feelings of being bullied, an Employment Tribunal properly directing itself could not have come to that conclusion when only a month after Mrs Smith became the Respondent's manager, the Respondent had written saying "I will continue to support you in all your endeavours". However, we have looked at the document from which that statement is drawn and it does seem that it is a document designed to get Mrs Smith's co-operation for the Respondent to be transferred. It seems to us that the expression of support is consistent with its being designed to obtain Mrs Smith's co-operation and to avoid arousing her suspicion and hostility. Certainly, it does not seem to us that that statement can be relied upon to displace the entitlement of the Tribunal to accept the evidence of the Respondent on these matters.
32. We accept the submission of Mr Lemon that at the centre of this case was the question as to whether any conduct on the part of the Appellants which may be open to criticism was sufficiently serious to constitute a fundamental breach and that it is important for parties to be able to see the extent of the seriousness of conduct found by the Tribunal. It seems to us that is what has happened here.
33. The remaining finding in paragraph 5(c) of the decision of the Tribunal relates to "the Respondents' radical use of the unrevealed complaints to block her progress. That referred back to the findings of fact in paragraphs 4 (c) and (d), and (h) to (k) of the decision. The Employment Tribunal then went on:

"(d) … it might be expedient for the Respondents to order refunds or to take other action in response to a complaint without telling the Applicant about it; that might amount to sensible customer relations. But as a matter of discipline, before the complaints count against an employee potentially to the destruction of her career prospects in the financial sector, she should be told of the complaint and her defence should be considered. The general principle is obvious and simply. An employee does not need to be excessively sensitive or vulnerable to lose trust and confidence if an employer breaches it."

34. Mr Lemon argues on a number of grounds that there was here no breach of contract, let alone a fundamental breach or a breach of fundamental terms. I refer to the factual background. As members of, and answerable to, their regulatory body, formerly LAUTRO, now termed PIA, the Appellants' practices are governed by rules, Rule 2.3 of which deals with references. Sub-rule 3 was quoted in the course of argument but does not apply to the circumstances, as we understand it, in this particular case. More important is what is described as "Enforcement Bulletin number 11" from LAUTRO. The introduction section provides:

"The purpose of this bulletin is to give members information about conclusions reached by LAUTRO in the context of its enforcement work which may be of interest to the Membership as a whole … The bulletin does not form part of the rules…

Section 2 – The Seeking and Provision of References between Members…

2.01 LAUTRO is often asked about references in situations where Member A is considering appointing a company representative currently or formerly with Member B. What information should A request of B in order to comply with the requirements of Rule 3.5(1)? …

2.03 These are ultimately decisions for Members themselves to make in the context of the requirement in Rule 3.5(1) to satisfy themselves as to the good character and competence of an applicant and, in Rule 3.5(2), to make known all relevant matters."

There then follows a list which is described in the following way:

"2.04…the following is a list of what LAUTRO would regard as the types of question which need to be addressed in order to provide the minimum information of a factual nature which is necessary to satisfy either Rule…

(f) Complaints

(i) How many over what time period?

(ii) How many have resulted in compensation being paid to investors?…

(h) Discipline

(i) Has the CR ever been formally reprimanded or disciplined for breach of the LAUTRO rules?…"

35. The Respondent applied for a job with the Prudential Assurance Company. She told them about the forgery. She asked the Appellants to provide a reference. That reference contained no assessment, as that term is normally understood, of the character or ability of the Respondent. It provided the minimum information under the LAUTRO rules. It appears that the Employment Tribunal was very much alive to the difference between information required to provide the minimum detail that regulatory provisions require on the one hand and information which constitutes a balanced reference on the other. They found as follows as to the reference:

"4(i) Those revealed that 17 complaints have been made against (the respondent) of which 4 were upheld and 8 were outstanding. This was too much for the Prudential who declined to employ her. She was amazed. She only knew of 2 complaints and she was happy that she had answered those.

(j) The Applicant had performed well and capably. But here were the Respondents producing a record that looked bad and included matters she did not know had occasioned any comment or action. Several were outstanding. She did not realise that there were any complaints pending against her. She did not understand how untried complaints should be held against her.

(k) The Respondents do not make "subjective" statements in references. They confine themselves to factual statements that may be justified from their files. Thus, there was no question of telling the Prudential what the precise nature of the Applicant's offence of forgery was; the recipients of the reference were only told that the Applicant was guilty of "forging a customer's signature on a financial appraisal form". The avoidance of a "subjective" statement here led to a more misleading reference than would have been given if it had been included. The Respondents do not support the self-recommendation of employees for whom they provide references by offering estimates of their skills or qualities. They provide only what regulations require them to provide, without considering whether the regulations barely observed are not, in particular cases, misleading. This restrictiveness certainly mislead the Prudential about the (Respondent's) worth. Indeed, about the nature and extent of their guilt when accusations against them were upheld."

36. In paragraph 4(c), the Employment Tribunal pointed out that the complaints were usually that information to a customer was misleading or inadequate, that some complaints were upheld and others rejected, but that they were not necessarily referred to the employee for comments. A discretion was retained whether to refer the matter to the employee.
37. On a number of occasions in his submissions Mr Lemon complained that the Tribunal did not identify the evidence upon which they relied in coming to their findings of fact. Mr Benson has reminded us of the approach to the decisions of the Employment Tribunals as exemplified in the case of Meek v City of Birmingham District Council [1987] IRLR. Bingham LJ as he then was said that the decision is not intended to be an elaborate formalistic product of refined legal draftsmanship, but that it must contain an outline of the story, a summary of the basic factual conclusions and a statement of the reasons which have led to their conclusion on those facts. The parties should be able to see why they have won or lost and there should be sufficient account of the facts and reasoning to see if there has been any error of law. The learned Lord Justice expressly stated that this was consistent with the words of Donaldson LJ, as he then was, in UCATTv Brain [1981] IRLR 225 to the effect that the purpose of the decision was to "tell the parties in broad terms why they lose or, as the case may be, win".
38. The Employment Tribunal is first criticised for finding that there was an implied term that the employer would not record complaints without giving an employee an opportunity to answer them. However, we accept Mr Benson's submission that the Tribunal did not find such a term. They found an implied term for the employer to maintain trust and confidence; the failure to give an opportunity to answer complaints was no more than a factual description of one of the ways which may lead to a breach of that term. The distinction seems important. Mr Lemon's formulation of the implied term is the foundation of many of his arguments, including impracticability and lack of a legal duty. The Tribunal did say

"before the complaints count against an employee…she should be told of the complaint and her defence should be heard",

They were only instancing a step that they believed should be taken. This was illustrative, and was not central to their defining of the implied term. They gave another such example in paragraph 4(k):

"The respondents do not…provide references by offering estimates of [employees'] skills or qualities. They provide only what regulations require them to provide, without considering whether the regulations barely observed are not in particular cases misleading. This restrictiveness certainly misled the Prudential…"

39. Accordingly the argument for the Appellants takes one method of avoiding the breach, namely consulting the employee over complaints, and turns that round into the contractual obligation that the Employment Tribunal then found.
40. The consequence of what we find to be a mis-statement in the grounds of appeal of the implied term found by the Employment Tribunal is that it places in the category of 'law' what is in reality more properly categorised as 'fact' and therefore not subject to challenge in the same way. The findings of the Employment Tribunal as to giving the employee an opportunity to answer complaints is, therefore, a finding of fact, and of course still subject to scrutiny as such. Nonetheless, we find that the Employment Tribunal cannot be criticised for the actual terms of the contract which they construed, for there is no criticism of their finding an implied term as to trust and confidence.
41. The grounds of appeal contend that in finding a breach of the term as to trust and confidence, the Employment Tribunal failed to heed certain matters and erred in their approach to some issues. Reference is made, first, to the Regulations and, secondly, to industry-wide practice. Thirdly it is contended that the Employment Tribunal erred in failing either to find, or at least to consider, that it would impose an intolerable practical burden on the Appellants to do what the Employment Tribunal found in order to remedy such breach. Fourthly, it is alleged that in making their findings the Employment Tribunal failed to consider the actions in practice of the Appellants at the two stages at which they acted, namely when the complaints were investigated and when the reference was furnished. Fifthly, it is then alleged that the Employment Tribunal erred in failing to relate the unrevealed complaints to the other matters alleged to constitute a breach so as to show how this amounted to a fundamental breach of contract. Sixthly, it is alleged that the Employment Tribunal erred in law in finding that the breach of contract was causative of the Respondent's leaving her employment so as to constitute a dismissal, seventhly, that any undermining of trust and confidence in this case did not amount to breach of a fundamental term, and eighthly in that the Employment Tribunal 'casually extended' the law so as to find that the breach of duty in relation to giving a reference is a matter of contract rather than tort. Finally we were referred to the principles in the case of Malik.

The PIA and LAUTRO regulations

42. It is said that the Appellants were only acting in accordance with regulations and general practice and that they could not do less than the regulations required. It is alleged that the Tribunal erred in concluding that this led to a breach of contract, and that the Appellants were acting capriciously and deliberately. Mr Benson argues that the role of the regulatory body is not to define the limits of the obligations as between employer and employee and that the regulations were not relevant to the issues before the Tribunal.
43. In paragraphs 2 (b) and 4(k) the Employment Tribunal summarised the stance of the Appellants in relation to the regulations and the practice of the industry in the words

"The reference was correct and in accordance with established procedures of the business"…

The Respondents "provide only what regulations require them to provide"

However, the Tribunal's findings seem consistent with the regulations themselves, for even on its own terms the LAUTRO requirements refer to the 'minimum' of provision and the need to be satisfied as to the competence and character of an applicant. The bulletin quoted above seems to provide LAUTRO support for the proposition that mere compliance with the regulations may not be an adequate reference. In particular, there is nothing in the LAUTRO provisions to prohibit disclosure of complaints so that employees may be forewarned at the time of a reference, even if they were not given an opportunity to answer them at an earlier stage.
44. It seems to us that the Employment Tribunal found that the error on the part of the Appellants was to treat the minimum requirements for regulatory purposes as the maximum requirements to discharge the obligation which arises once an employer has undertaken to give a reference to ensure that it is fair and reasonable. We agree with Mr Benson's submissions that the provisions of the regulations are in reality not to the point when considering what is a fair and reasonable reference. The argument of the Appellants seems to use the obligation of the Appellants to their regulators as the measure of their obligations to their employees. The Employment Tribunal rejected this proposition. There was material entitling them to do so and we see no error in law in this approach. Had the Appellants argued that compliance with regulations affected their capacity to provide a fuller reference, then the argument may have been stronger. This does not seem to have been argued, and we return to matters of practicality below.
45. Next, it is contended that the words 'used' complaints, as a matter of discipline 'to' block progress import a finding of deliberateness or capriciousness on the part of the Appellants of which there is no evidence, and which is inconsistent with their observation of regulations. This involves, it seems to us, reading those words as if they meant 'with the purpose of blocking'. However, the words 'used' and 'to block' are equally consistent with a straightforward description, not of the purpose, but of the objective effect of the Appellants actions. The rest of the decision supports this latter construction. It seems to us that the Employment Tribunal were simply describing the effect of using the complaints in the way they were so used. Furthermore, the highest the evidence was put seems to have been by the Respondent herself who said it was 'negligent'. The evidence before the Tribunal showed that references were prepared by strangers at a remote location and we reject the contention that the Tribunal were finding that the actions of the Appellants were deliberate or capricious.
46. Further, it is contended that it is reasonable for an employer to stick to the limits of the requirements of regulations or at least not to be in fundamental breach of contract if failing to do so. It is pointed out that the law does not oblige an employer to help an employee obtain other work and that a reference does not have to be complete but only reasonable and fair. However, in assessing whether the Appellants were in breach of contract, the Tribunal were entitled to, and we find, did, consider not only the quality of the act of sticking to the regulations in isolation, but also in relation to its effect on the employee. They found that the Appellants approach, because of its misleading effect, was damaging. In a similar way the phrase "being economical with the truth" has become part of our language. Referring to unrevealed complaints may be nothing more than the truth, and completely accurate, but simply to be accurate in what is said may not lead to a 'reasonable and fair' reference. The Tribunal found that to give half the story is to take a positive step, the result of which risks creating a misleading impression that is liable to damage an employee permanently. Arguments that limiting a reference to the minimum requirements of regulations is not a positive act seem to us to fall away. We find that the Employment Tribunal were entitled to treat the approach of the Appellants to the regulations in the way they did.

Industry-wide practice

47. It is alleged that the Employment Tribunal failed, in considering whether there had been a breach of contract, to heed the evidence that the practice as to handling complaints and giving of references is industry-wide and that the Respondent was dealt with no differently from any other employee. It is also alleged that the Employment Tribunal erred in concluding that to follow industry-wide practice could amount to a breach of contract. It is argued that the Employment Tribunal erred in calling the practice of the Appellants 'radical' and in failing to consider and make specific findings as to the evidence of Sally Day.
48. It does appear that the Employment Tribunal did heed, in their reference to "established procedures in their business" in paragraph 2(b), the argument that what the Appellants did was industry wide.
49. Further, even if the Tribunal intended the meaning ascribed to 'radical' by the Appellants, a general practice in a particular sector may yet not be a reasonable and fair practice and may be extraordinary or 'radical' in relation to generally accepted standards of behaviour by a reasonable employer. It does not seem to us that where the effect of a practice is as the Employment Tribunal found, that they erred in finding a procedure to be radical or extraordinary even though widespread in a particular industry. We find that there was evidence upon which the Employment Tribunal were entitled to find that the use of unrevealed complaints was 'radical'. In any event, we consider that it would be an over-literal and narrow interpretation of the words of the decision to conclude that the use of the word 'radical' must have meant exceptional with regard to practice within the industry so that a breach of contract can be disproved by evidence from elsewhere.
50. It does not seem to us that in using the word 'radical' the Employment Tribunal are thereby to be read as overlooking the argument that what the Appellants did was industry-wide. It seems to us that the word "radical" is being used in the sense of "extraordinary". Clearly, the extraordinary feature of this procedure, so far as the Employment Tribunal was concerned, was that it uses the minimum requirements for regulatory purposes as a model for a balanced and fair reference on behalf of an existing employee.
51. Complaint is made that in deciding that the use was "radical", and in any event, the Employment Tribunal failed to consider and to make specific findings about the evidence of Sally Day. She gave evidence of the need to comply with regulations, to keep the records of complaints and to include them in a reference. We bear in mind that an Employment Tribunal is not required to set out the evidence upon which it makes its findings, but Mr Lemon says that this was so central that the Tribunal erred in failing to deal with it specifically.
52. We have therefore considered the statements and oral evidence of this witness. She asserts the practice of the Appellants in this connection and maintains that it is industry-wide. In her first statement she says that the procedures are standardised because employees are working in the financial services industry. She states, in paragraph 2, that the Appellants use a standard form reference in order to comply with their interpretation of regulatory requirements. She explains the requirement for a full and frank disclosure of all complaints including those that are rejected, accepted and outstanding. In paragraphs 10 and 11 she gives the reasons for this practice – in the first she says that

"What the reference format does not produce are personal details [and] comments on the development of an individual's career. The Bank take the view that the individual will have promoted relevant personal aspects (herself) and would not have got a job offer subject to references if the individual employee concerned failed to get across specifically those aspects"

In the second paragraph the reason for a standard format is so

"references in regulatory detail can be provided and be given in a consistent and uniform way. This has the advantage of avoiding subjective comments from Line Management who will not have the full picture available to them."

53. The reasons for this procedure, therefore, given by Sally Day, seem to be that, first, giving personal information about career development is a matter for the individual employee and secondly that line management should not be relied on to provide subjective information because they may not 'have the full picture'. There is no evidence on the face of it that the reason for not having the 'traditional' form of reference or for not consulting employees over complaints when investigating them, is the onerous nature of the exercise or the difficulty in contacting ex-employees.
54. Indeed, in paragraph 3 of her supplemental statement Sally Day seems to be a sliding away from the first statement when she stated;

"I mentioned previously that there is no standard form of reference laid down by PIA, but the fact that the rules as they have evolved have laid down certain minimum requirements that the reference should contain".

In fact, this does not appear to have been part of her evidence in her first statement. It concedes that there is no standard form laid down and that the PIA standards are 'minimum'. The introduction of this evidence by way of supplementary statement does seem at least to indicate the Appellants' recognition of its importance.
55. Whilst it is true that the decision of the Employment Tribunal makes no specific reference to Sally Day it appears that, in their reference to the practice of the Appellants not giving 'subjective' references, they had in mind that particular evidence of Sally Day. We can find no error of law in the Tribunal's approach to their findings of fact in relation to the matters of which she gave evidence. That the Appellants were following their standard procedure is acknowledged by the Tribunal, and that others in the industry may have followed the same procedure does not, it seems to us, prevent the Employment Tribunal from being entitled to conclude that this practice amounted to the breach of contract which they found.
56. In connection with the practice of the industry it is alleged that the Employment Tribunal erred in concluding that the practice of the Appellants was

'potentially to the destruction of her career prospects in the financial sector'.

Mr Lemon contends that it is the number of complaints, that these could not be diminished and that a prospective employer in the financial service industry knows what is at work and would not react unfavourably. The finding of the Employment Tribunal was to the contrary and was consistent with evidence from the Respondent, that the discovery of these complaints by the Prudential was fatal to her job application.
57. Furthermore, we ourselves would only observe that we doubt the proposition that the evidence proved conclusively that the practice of the Appellants was industry-wide. There is a similar reference, completed by the Prudential Assurance Company, at page 254 of our bundle, that is not only much fuller, but where the section on complaints is dealt with they include an evaluation of the complaint and express the view that one such is groundless. Further we note that there was evidence from Mr James Steven Smith, a former fairly senior employee of the Appellants, who was noted to say

"The TSB always give references that cause people problems"

and his statement was not wholly consistent with the suggestion that the Appellants were following industry-wide practice.
58. Further, notwithstanding any industry-wide practice, the Tribunal were concerned with the effect of this Appellant's actions on this Respondent. Apart from practicality, referred to later, it seems to us that even if a practice is widespread, if its effect is to act "potentially to the destruction of her career", as the Tribunal found, they were entitled to find in the way they did that this was a breach of the term of trust and confidence. We find there was evidence upon which they could reach their decision and the failure to mention the evidence of Sally Day was not an error of law.

Practicality and approach to the evidence.

59. The Employment Tribunal found:

    "…before the complaints count against an employee …she should be told of the complaint and her defence should be considered"

    It is argued on behalf of the Appellant that in making this finding the Employment Tribunal do not appear to have considered that this process would be impractical to the extent of its not being a breach of contract to fail to follow it. It is also said that this is an example of the Tribunal's substituting their own view. Complaints may be received after an employee has left employment and references are sought about ex-employees. Further, even in respect of current employment, it is asserted that the practicality of discussing every complaint where it is not intended to take any disciplinary action would be an 'intolerable burden' and would create a term that would not be understood by the industry. It is said that the Appellants have the opportunity of acting at two stages, when the complaint is received and when the request for a reference is received. Regulations oblige them to deal with and record every complaint at the first stage and to give details of them when a reference is sought at the second. When the complaint is received there can be no obligation to discuss it with an employee because there is no disciplinary action contemplated, so there is nothing to prejudice the employee in his or her employment. Later, when the request for a reference is received, the person may no longer be an employee protected by implied terms of trust and confidence, there may be no contractual duty to provide a particular reference, there is no obligation on an employer to help an employee obtain other work and a reference does not have to be complete but only reasonable and fair. In these circumstances it is contended that it is an error of law to find a breach of contract let alone a fundamental breach. We refer in the next section to the complaint that the Employment Tribunal did not examine properly the two stages at which the Appellants could have acted.

60. The arguments of impracticality appear to have been based on the incorrect statement that the implied term was restricted to an obligation to give the employee the opportunity to answer all complaints. However, as Mr Benson points out, there does not seem to have been evidence to prove such impracticality. There is no evidence, for example, that it would be impractical for the Appellants to have as part of their procedure the sending of a memo to the current employee concerned asking for comments whenever they receive a complaint. Indeed, the Employment Tribunal recognised in paragraph 5 the expediency of just paying compensation to the customer without the trouble of an internal inquiry, but they nonetheless found a breach when looking at the whole process. The tribunal clearly also had in mind other possible steps such as giving a full reference or telling the employee of the complaints at the reference stage. The latter of these can be seen from paragraph 4 (k) of the decision:

She "did not know (there were complaints which had) occasioned any comment or action…She did not realise any…were pending against her"

The Tribunal seem to have been alive to these other possible steps and not only to the fact that the Appellants did not give the Respondent the opportunity to answer complaints, and it has not been argued by the Appellants that these steps in the case of an existing employee are also impractical. We consider that such evidence as we have seen did not demonstrate the impracticality of avoiding what occurred to the extent of justifying a conclusion that the Employment Tribunal erred in failing to conclude that there was impracticability or in failing to consider such evidence in their conclusions. We do not find that the Employment Tribunal erred in failing to find that the obligations that the avoidance of the breach of the implied term would have placed an intolerable burden on the employer.
61. The Employment Tribunal were dealing with an employee in post and whilst the position may be different for an ex-employee, there was no requirement for the Tribunal to judge the position of the Respondent in terms of how the Appellants should deal with an ex-employee. We deal with this also in the next section.

Failing when considering the actions of the Appellants to judge them in the light of the point in time when they occurred, namely when a complaint was received and when the reference was furnished.

62. It is contended that an examination of the actions of the Appellants at those two stages would have led to a conclusion that they were not in breach of contract. It is contended that at the first stage there was no legal obligation to refer complaints to employees unless they formed part of a disciplinary procedure, which in this case they did not, and that at the second stage and if the employee was no longer employed by the Appellants there would be no legal obligation to give an opportunity to answer complaints.
63. At the Employment Tribunal there was much analysis of the complaints themselves, and Mr Lemon rehearsed them before us. The Employment Tribunal were entitled to conclude on the evidence that their disclosure lost the Respondent the opportunity of the new job. It seems unnecessary to examine them further and inappropriate for us to analyse the extent of justifiable criticism of the Respondent in them.
64. Mr Lemon argues that the tribunal erred in finding that the Respondent accumulated a 'disciplinary record' because the 'unrevealed complaints' were not used as part of the disciplinary procedure and no disciplinary action is taken against the employee in respect of them. The Tribunal held:

"Thus an employee might accumulate a disciplinary record without realising it. The record might become irrevocably fatal to her prospects of employment in the financial industry (as it did in the Applicant's case)."

First, whilst it is strictly correct that the complaints were not part of the disciplinary record, the Tribunal were apparently referring to the use of the complaints in the procedure for giving references, as the above extract demonstrates. In this context it seems to us that the Tribunal were entitled to conclude that the complaints, in the context of giving a reference to prospective employers, were in effect used as a record of misdemeanours, or 'blots' as the Tribunal described them. Secondly, the Tribunal did not find any unfair disciplinary procedure as part of the finding of breach of contract. Accordingly, even if the words 'disciplinary record' were not strictly accurate, they did not impinge on the essential findings of the Tribunal in relation to the breach of contract flowing from the reference given to a prospective employer. Again in paragraph 5(d) the Employment Tribunal described what should have happened 'as a matter of discipline', but from the context of the words it appears to us they were using the term loosely to describe 'procedures which affected the employee'. It is implicit in the decision that the Employment Tribunal were aware that the complaints did not lead to disciplinary action. Indeed, that would be consistent with the lack of questioning of the employee about the complaints which lies at the heart of the whole case.
65. Mr Lemon has referred to the tribunal's treatment of the forgery, which was a disciplinary matter, and which, it is argued, the tribunal referred to because they were in error in treating the complaints as if they were disciplinary matters. It is rightly pointed out that this was not an 'unrevealed' complaint. It is true that in paragraph 4 (k) the Employment Tribunal found

"The respondents do not make 'subjective' statements in references. They confine themselves to factual statements that may be justified from their files. Thus, there was no question of telling the Prudential what the precise nature of the [Respondent's] offence of forgery was; the recipients of the reference were only told that the [Respondent] was guilty of "forging a customer's signature on a financial appraisal form"

and stated that this led to a more misleading reference than if it had included a description of the precise nature of the act of forgery in this instance. It is also true that this appears in the section which deals with unrevealed complaints. However, in this paragraph the first part appears to use the offence of forgery as an example of the way in which the Appellants do not give 'subjective' references which detail skills and qualities. In this way the Employment Tribunal used the word 'thus' to preface an example of what went before. It is later in the paragraph that 'unrevealed' complaints are referred to;

"They provide only what regulations require them to provide".

They conclude the paragraph,

"This restrictiveness certainly misled the Prudential about the Respondent's worth, indeed about the nature and extent of her guilt when accusation against her were upheld",

The restrictiveness refers back to the unrevealed complaints and to the failure to give details of the forgery. Both are examples of not giving full 'subjective' references but a careful reading of the paragraph leads us to conclude that the Tribunal did not treat the forgery as an 'unrevealed' complaint, or the unrevealed complaints as true matters of discipline.
66. Mr Lemon postulates the question as to what time does the duty arise to consult the employee so as to avoid being in breach of contract in the way found by the Employment Tribunal? Is it, he says, when the complaint is received? He says there is no breach of contract at that time within the employment situation. By the time the job reference is made the employer is doing no more than obliged to do by the regulations, and the employee may no longer be an employee so the capacity for the Appellants to be in fundamental breach of contract will be past.
67. We accept that there is no legal duty on the Appellants to refer complaints to employees at the point of time when no disciplinary action is contemplated and when confined to the management task of dealing with the complaint in isolation. The Employment Tribunal were also alive to this when they dealt with the expediency of paying compensation in paragraph 5(d).
68. As to ex-employees, complaints are sometimes received after an employee has left employment, and any contractual duty to furnish references in a particular form may not apply to an ex-employee. Nonetheless, the Employment Tribunal was dealing with a current employee and we find they did not err in failing to view the obligations to an existing employee in the light of the effectiveness or lack of binding obligation in relation to ex-employees. It appears to us that the position of ex-employees is not a relevant analogy. The whole nature of the employment contract is that it gives rise to implied obligations over and above those outside the employment contract. There is also an important practical difference in terms of degree. The reference from a current employer is likely to be a much more significant factor in a job application than one from a former employer.
69. It seems to us the answer to the question as to when the duty arises lies in the findings of the Employment Tribunal in paragraph 5(d). The point in time is

"before the complaints count against an employee potentially to the destruction of her career prospects".

Mr Lemon complains that by the use of the word 'use' of complaints, the Employment Tribunal erred in failing to identify the point in time when this 'use' occurred. However, the approach of the Employment Tribunal was to consider the actions of the Appellants over a period of time, not in relation to two stages. It seems to us that the Tribunal were clear in referring to a process, rather than to a point in time, as paragraph 5(d) demonstrates. Again, the Employment Tribunal focus on the effect of the Appellants procedures on the Respondent.
70. The Appellants argument is presented by looking at the two stages independently, as if they were compartmentalised. It can be argued, on the one hand, that it is not a breach of contract to fail to discuss with an employee complaints which do not form part of the disciplinary record and which can be dealt with administratively. It can also be argued that when it comes to furnishing a reference, an employer is entitled to do the minimum should he or she elect, by sending the references under the regulations. However, it is when the two processes are combined over a period of time that the mischief which the Employment Tribunal identified in paragraph 5(d) occurs.
71. Implicit in the decision of the tribunal is the finding of a breach of contract in having a process of unrevealed complaints knowing they may be used for a reference and then using them as a reference so as, in this case, to terminate the career in the financial services sector of an able employee. It is not so much that it was argued that the Appellants did something wrong at the stage of complaint or reference, but that at either stage, or in between, they could have ensured that harm was not done. There were facts which, we find, entitled the Employment Tribunal to reach their judgement. The findings of the Tribunal dealt not only with the effect of the Appellants actions, but also with steps that could have been taken, including informing the employee of complaints at the complaint or reference stage, and providing a fuller reference.

The relationship of unrevealed complaints to the 'attack' on confidence and Mrs Smith's treatment in the finding of a fundamental breach of contract.

72. Mr Lemon made submissions questioning the part played by the use of unrevealed complaints in the overall decision of the Tribunal that there was a breach of a fundamental term. Having set out the questions to be asked in paragraph 5(a), in paragraph 5(b) the Tribunal found:

"We decided that the Respondents were in breach of the implied term … that term as to trust and confidence is fundamental to the contract of employment."

They then went on to identify the conduct which together amounted to the breach in paragraph 5(c), but went on in paragraph 5(d) to say:

"The use of unrevealed complaints alone would have amounted to conduct in breach of the terms as to trust and confidence."

Later on, in paragraphs 5(e) and (f) they said:

"The Respondents' breach of the implied term as to trust and confidence as described above caused the Applicant to leave when she did so. It was a process that had for some time persisted. The revelation of the references was the last straw. It induced her to leave precisely when she did, though she was actively considering leaving in any case. Here was a steady erosion of confidence culminating in a final disintegration."

73. The use of the phrase "last straw" does not appear to fit what the Employment Tribunal appear to have been saying because the use of unrevealed complaints was not regarded by them as being as insubstantial as a piece of straw. It seems that the phrase "final disintegration" more accurately reflects the situation. Nonetheless, it is clear, it seems to us, that the Employment Tribunal found that the use of unrevealed complaints alone would have amounted to conduct in breach of the term as to trust and confidence. That must refer back to the breach of what they describe as a fundamental term.

'Any breach was not causative'.

74. It is pointed out that the Employment Tribunal found that the effect of the reference caused the Respondent to leave when she did "although she was considering leaving in any case" and that the evidence demonstrated that she had verbally accepted the offer of another job before she was aware of the effect of the reference. Accordingly it is said that the reference itself as a cause of leaving was a conclusion no reasonable tribunal properly directing itself could have come to or, alternatively, that the Employment Tribunal failed to take account of her acceptance of another job. However, the evidence was that the Respondent left without a job to go to, which is a different act from leaving to go to another job, and the Tribunal found that it was the former that was caused by the breach of contract of the Appellants. Further, as Mr Benson points out, the Employment Tribunal had regard to the fact that, although before the matters in relation to the reference were disclosed, the Respondent was actively considering leaving in any case, and she had not, at that stage, resigned. It seems to us this was a conclusion to which the Tribunal were entitled to come and the evidence was not such as to drive a reasonable tribunal to be bound to conclude that the Respondent would have left in any event.

Was any undermining of trust and confidence sufficient, in this case, to amount to a fundamental breach of contract?

75. Whilst in the past there have been interesting legal arguments as to the difference between fundamental breach and a breach of a fundamental term, one if not the first case to identify the implied term of trust and confidence, Courtaulds Northern Textiles Ltd -v- Andrew [1979] IRLR P.84 puts the matter beyond doubt. This was not referred to in argument but is well-established and uncontroversial authority;

"One has to consider whether the conduct complained of constitutes either a fundamental breach of the contract or a breach of a fundamental term of a contract … but there is not much room, as we think, for that enquiry in a case in which the test, within the terms of the contractual obligation, is one which involves considering whether the consequences, or the likely consequences, are to destroy or seriously damage the relationship of confidence and trust between employer and employee; because it does seem to us that any conduct which is likely to destroy or seriously to damage that relationship must be something which goes to the root of the contract, which is really fundamental in its effect upon the contractual relationship."

76. The Employment Tribunal found that it did have the consequence of jeopardising the Respondent's employment prospects. We find that the Employment Tribunal were entitled to find that the actions of the Appellants constituted a breach of the term as to trust and confidence and that consequently there was a fundamental breach of contract.

Was there a casual extension of the law?

77. We were referred to Spring - v – Guardian Assurance at its different levels in the courts, and in particular in the House of Lords, reported at [1994] IRLR 460 Lord Gough at paragraph 33 says:

"Where the relationship between the parties is that of employer and employee, the duty of care could be expressed as arising from an implied term of a contract of employment, ie that if a reference is supplied by the employer for the employee, due care and skill will be exercised by him in its preparation. Such a term may be implied despite the absence of any legal obligation from the employer to provide a reference."

78. The Spring case involved an ex-employee and the House of Lords held that there was a duty of care in tort. Mr Lemon suggests that it was not essential to the decision in that case that the duty of care in relation to a reference be attributed to a breach of contract rather than in tort and that the speeches do not all conclude that it is the former. He claims that the Employment Tribunal 'casually extended' the law without sufficient analysis. However, the speeches, particularly of Lord Woolf, in the Spring case, do generally seem to support such a duty. Further, in this case the term was not as to the giving of a reference, but as to maintaining trust and confidence. The facts relating to the giving of the reference were therefore part of the facts which gave rise to the finding of a breach of contract. The Tribunal did not find a breach of a specific term in relation to the giving of a reference. It seems to us in any event that the commission of a tort against an employee is available factual evidence of a breach of the implied term as to trust and confidence. Further, the above authority appears to be ample ground for entitling the Employment Tribunal to regard themselves as having jurisdiction and categorising the matter as an allegation of a breach of contract such as to give rise to constructive dismissal. Further, we are not satisfied that this matter was canvassed before the Employment Tribunal in any event. We do not find that the Tribunal erred in exercising jurisdiction in this matter, or in the way in which they dealt with the matter.
79. We were also referred to the case of Malik -v- Bank of Credit & Commerce International SA [1997] IRLR 462. That decision makes it clear that the breach of trust and confidence takes place when the act is performed, not necessarily when it is communicated to the employee. That gives a legal framework for the Employment Tribunal's finding of when the breach occurred in paragraph 5(d) of their Decision. Furthermore, that Decision gave House of Lords authority for the first time to the implication, as a matter of law, of an obligation on the part of an employer to maintain trust and confidence
80. In their decision, the Employment Tribunal set out the issues which each party had raised. They then set out their findings of fact in relation to those issues. We have been helpfully reminded of the case of Meek -v- Birmingham City Council. We are also satisfied that there was evidence upon which a Tribunal, properly directing itself, could come to those findings of fact. Having set out the initial matters relating to delay in promotion, requirement to be on the Personal Improvement Plan and treatment from Mrs Smith, they went on to consider the use of the references. They then identified the principles of law to apply and came to a conclusion to which they were entitled to come in applying their findings of fact to those principles of law. We are satisfied that the Appellants are able to know from the decision why they lost. Our only reservation would be as to the way in which the Tribunal approached the Personal Improvement Plan. However, their finding, in any event, that the unrevealed complaints were a breach of the term of trust and confidence and the other matters which preceded that lead us to find that there was no error of law which, if corrected, could affect their final decision. It is always possible to criticise words used and there is no doubt that this decision was fairly brief in its analysis of the facts. Nonetheless there was no error of law. The appeal is dismissed.
81. The decision on review was also subject to Appeal. The effect of that decision was that, once the main decision identified the breach of the implied term of trust and confidence leading to unfair dismissal, it must follow that there was a common law breach of contract. Mr Lemon queried whether a Tribunal should have embraced such a complex matter. However, Tribunals cannot pick and choose what cases, properly brought before them, they can hear. Mr Lemon says that careful findings of fact should have been made as to the exact breach of contract. It seems to us that there were findings of fact within the decision. The consequences of that breach would be a matter for consideration when the Remedies Hearing takes place. We do not accept that the failure to mention the evidence of Sally Day was of any significance. The job of the Tribunal is to make findings of fact not to reiterate evidence heard over many days. A breach of contract is actionable per se. Furthermore, at the outset of the review the parties were given an opportunity to make representations; they chose to make none. The Employment Tribunal had already given its decision on the claim for unfair dismissal. Were the parties concerned to have findings as to the scope of the breaches for the purpose of breach of contract, and particularly if the Appellants were concerned to narrow those findings, that, it seems to us, was the time to have made representations. We can see no error in law in the decision on the review.
82. Accordingly, these two appeals are dismissed and the application of the Respondent will be remitted to the Employment Tribunal, constituted as before, to deal with the Remedies Hearing as expeditiously as possible.