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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> HSBC Plc v Drage [2003] UKEAT 0369_02_0807 (8 July 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0369_02_0807.html Cite as: [2003] UKEAT 0369_02_0807, [2003] UKEAT 369_2_807

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APPEARANCES

 

For the Appellant	MS S ASHTIANY (Solicitor) Of Messrs Nabarro Nathanson Solicitors Lacon House Theobald's Road London WC1X 8RW
For the Respondent	MR C BROWNE (Actuarial Manager) MR S DRAGE (Representative)


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of one entire appeal and a proportion of a second appeal, as we shall explain, in relation to a unanimous decision by the Employment Tribunal at Bristol given on liability as a result of a hearing on 6 February 2002 by a Decision promulgated on 4 March 2002, and a Decision on remedy by the same Tribunal, as a result of a hearing on 5 August 2002, promulgated on 22 August 2002.
2. We say a proportion of a second appeal. It has been the entire hearing of the appeal on liability. So far as the appeal by the Respondent on remedy is concerned, there was included as one of the topics in that appeal the issue as to the use of Ogden Tables. At an Appointment for directions held before me on 17 February 2003 in a number of cases which were due to be heard together in respect of issues relating to the recovery of non-economic loss in unfair dismissal claims, there was identified that one of the cases, namely Hull City Council v Dunnachie (EAT/848/02/RN), had not only an identity of interest with the cases that were then listed in relation to non-economic loss, but also had an identity of interest in relation to this appeal with regard to the issue of the Ogden Tables. I made an Order that that part of the appeal on remedy in both the Dunnachie case and this case should be heard together and it was heard before this Tribunal yesterday. We have then gone on to deal with those parts of the Drage appeals which did not relate to the Ogden Tables. First as to liability and second as to the balance of the remedy claims.
3. We have had the benefit today on that part of the Drage appeals, which we have now explained, of very helpful and clear submissions. On behalf of the Respondent (the Appellant before us) HSBC Bank Plc, Ms Ashtiany (Solicitor) has appeared. She appeared below on the remedies hearing, but not at the liability hearing. On behalf of Mrs Drage we have been greatly assisted by the frank and courteous submissions of Mr Drage, her husband, on the appeal on liability, and, as we were yesterday in relation to the remedies appeal, by Mr Brown who we think is a friend of Mrs Drage and is an Actuarial Manager.
4. The facts of the case so far as Mrs Drage is concerned can be shortly described. She was a long-standing employee of HSBC (previously the Midland Bank), having joined in July 1978. As from 1993 when she returned to work following the birth of her first child, she went into what was effectively a job share. She lives in Devizes and she worked at the Devizes branch throughout her career with the Bank. It was convenient to her to work at the Devizes branch because she could leave her children at school at 8.50 and then walk to the job.
5. Her contract of employment, signed by her on 18 March 1997, contained a mobility clause. That read in material part as follows:

(ii) "If you are a staff grade employee…you may be required from time to time to work at or from any office or branch or location or within different companies of [HSBC Plc], within reasonable travelling distance of your existing location or your home. What is deemed a reasonable journey will depend on a number of circumstances that will include normal travelling time and transport availability. The Bank will, wherever possible, take into account your personal and domestic circumstances."

6. Towards the end of 2000 the Respondent Bank decided that it needed to transfer counter staff to Trowbridge. Their reason for doing so is referred to in paragraph 5 of the decision of the Employment Tribunal, namely:

5 "…because the counter staff at Trowbridge were predominantly probationers and "Trowbridge was in desperate need of experienced counter staff"…The Staff Rota analysis…indicates that in January 2001 they had two experienced counter staff [at Trowbridge] out of seven. In February this reduced to one out of six. In March it was two out of seven."

7. The Respondent, through Mr Holman and Miss Fletcher, raised the possibility with the Applicant on 22 January 2001 of transferring her to Trowbridge.
8. It should be made clear that the job share arrangements that the Applicant had were that she worked alternate weeks, and consequently, of course always subject to the possibility of the Respondent contacting the Applicant at home, the times when the Respondent had relevant discussions (to which we will refer) with the Applicant was inevitably fortnightly rather than every week in those circumstances.
9. The Applicant raised objections to the possibility of the transfer and set them out in detail on the following day. At that stage she referred specifically to the impossibility of delivering her children to school at 8.50 and being in Trowbridge by 9.00am. Trowbridge is about 9 miles from Devizes.
10. What thereafter happened, subject to what we have referred to about the potentially fortnightly nature of the discussions, was that between then and the end of July there followed a series of meetings, discussions and indeed the taking out of a grievance procedure and a grievance appeal by the Applicant relating to the terms of her transfer to Trowbridge.
11. The first reaction, according to the Tribunal's decision at paragraph 7, was from Miss Fletcher, having contacted the Trowbridge branch, telling the Applicant what the Trowbridge branch had told her, namely that informally the branch would be prepared to allow the Applicant to start late providing that she reduced the length of her lunch hour.
12. The Tribunal summarises what, in circumstances to which we will refer, they call the four separate requirements of the employer that followed in relation to start times in Trowbridge, in paragraph 33 of the decision.
13. It is common ground that sub-paragraph (1) of paragraph 33 is incorrect. It is plain from the evidence which we have seen in the witness statement of Miss Fletcher, and has been frankly confirmed to us by Mr Drage, with his wife's agreement, that there was never an attempt to impose a requirement of a 9.00am start in the circumstances such as are described in paragraph 33 (1) because, as Miss Fletcher describes, once the difficulty had been pointed out by Mrs Drage, Miss Fletcher contacted Mr Paul Gain, the Assistant Manager of Trowbridge branch. There was an area meeting held on 7 February 2001 and that Assistant Manager, Mr Gain, agreed that Mrs Drage could start work each day at 9.15am, suggesting that her lunch break entitlement should be reduced by 15 minutes in order that her contractual hours of 7 hours would not be reduced.
14. It was on that basis that the first proposal, or, as the Tribunal calls it, "requirement", was communicated to Mrs Drage, the next time she was in the branch following the meeting held on 7 February 2001, which was on 19 February 2001.
15. Consequently the recital at paragraph 33 (1) of the decision requires amendment to correct the Tribunal's error to read as follows: "(1) …that the Applicant transfer from Devizes to Trowbridge on 2 April 2001 with an official start time of 9.15am, but an informal adjustment whereby her lunch break would be reduced by 15 minutes."
16. The Applicant entered a grievance on 9 March 2001 indicating that she was not happy with that proposal. It is common ground that Mr Kirkman, who was dealing with the grievance, agreed that, pending the outcome of the grievance she should report for work at Trowbridge by 9.30am and work normally until 5.00pm, thereby reducing her daily working hours by half an hour. That is what in practice was operated as from her reporting to Trowbridge on Monday 2 April 2001 which she did. That remained the temporary arrangement right through to her leaving the employment of the Respondent.
17. The decision of the Respondent through Mr Kirkman on 30 March 2001 initiated what the Tribunal in paragraph 33 (2) of the decision characterises as the second requirement, namely that "from an unspecified date she should attend for work at 9.30am with no reduction in hours, but no specific provision as to lunch breaks or finishing time."
18. The Applicant appealed against that decision. It should be interpolated at this stage that what subsequently became the case, namely that her major ground of complaint, surviving complaint, related to the starting hours, was not the major problem in her own eyes. She concluded and remained of the view, as is recited by the Tribunal, that there were other motives for her transfer from Devizes. Suffice it to say that those other motives, belief in which caused her to be unhappy with the Devizes staff, and indeed in due course to be pleased to be working at Trowbridge, were not made out. It is perhaps a significant factor that the Tribunal did not accept what was inevitably an important part of the Applicant's case because it was founded on her on subjective belief. In paragraph 18 of the Tribunal's decision the following is recorded:

18 "We also have some unattributed hearsay evidence that Miss Fletcher indicated to other staff, either at the time or subsequently, that she felt that there were too many long-serving part-timers in Devizes and that they thought they ruled the roost. If these remarks were made they would indicate that Miss Fletcher's evidence that the sole reason for the transfer was business need in Trowbridge is wrong. However, in the absence of the witnesses themselves we must reject this evidence."

19. In those circumstances, the only material matter, as we have indicated, was the unfolding grievance procedure, so far as it related to the school dropping off hours, albeit that it cannot be ignored that what was plainly in the Applicant's mind was something which the Tribunal found not to be proved.
20. The appeal was dealt with by Mr Carver on 18 May 2001. The Tribunal record two matters of materiality in relation to that appeal. First, in paragraph 11 that:

11 "At the appeal the Applicant and her representative accepted the rationale of the move"

and, second, in paragraph 12 of the decision, that:

12 "[the Applicant] had made it clear that by this time she did not want to return to Devizes…[but]…she felt that the transfer had been unfair and that the Respondents should make concessions…"

21. Mr Carver concluded on 22 May that there should be what the Tribunal characterised in paragraph 33 (3) of the Decision as requirement three. He had understood Mrs Drage's account perfectly clearly, namely to be that she had to drop her children off at the primary school at 8.50am, but he procured Ms Hardy of the Respondent to make a telephone call to the school, which led Ms Hardy to believe that children could be dropped off at 8.30am.
22. Mr Carver gave evidence that he was cautious about following up that information and was concerned that there had not been a discussion during the appeal hearing itself of the drop off time for children, but that he did, in the event, take into account the apparent possibility of Mrs Drage dropping the children off at 8.30am rather than the normal time of 8.50am.
23. Consequently, as he indicated in his witness statement, when he conveyed his decision to Mr Davies the union representative, he explained that, having made enquiries, the Bank had established that children could be dropped off at the school at 8.30am and it was in those circumstances that what has been called 'requirement three' was arrived at, involving a 9.00am start.
24. Mrs Drage and Mr Davies immediately took steps to ensure that that which was in fact a misunderstanding, as Mr Drage has himself contended and accepted before us today, by the Respondent, was put right. She obtained a letter from the school which was produced to the Respondent, and which confirmed that in fact 8.50am was the time, and that it was only in very exceptional circumstances that 8.30am would be accepted.
25. On 13 June Mr Gain, the Assistant Manager at the Trowbridge branch, where by now the Applicant was working, agreed with Mrs Drage that the Bank would be flexible and would not insist on the proposal in relation to a 9.00am start. At a grievance appeal meeting on 28 June, at which Mr Davies appeared with Mrs Drage and made clear that the previous decision had been flawed because the drop off time of 8.50am was only very exceptionally capable of being changed, the Respondent confirmed that it would not bring requirement three into effect, and as a result of that hearing, and a further consideration on 30 July, what was set out by the Tribunal as 'requirement four' was born, namely that as from 1 November 2001 the Applicant should work at Trowbridge from 9.30am to 5.30pm with an informal suggestion that she might not be required to work the last half hour.
26. The Applicant resigned by letter dated 3 August 2001. She did not send a letter of resignation which set out her grounds for so doing, but in the company's records there is a hand-written document signed by Mrs Drage on an exit interview form, which read as follows:

"I have no problem at all with Trowbridge branch and the reasons for leaving are entirely related to the circumstances of leaving Devizes branch."

27. She issued an Originating Application claiming unfair constructive dismissal and sex discrimination on 13 September 2001.
28. The Tribunal's conclusion, so far as unfair dismissal is concerned, was that she was entitled to claim constructive dismissal. They refer to breaches of contract by the Respondent. In paragraph 22 of the decision they state as follows:

22 "The alleged breaches of contract by the Respondents relates to various stages of the exercise – the decision to make a transfer, the selection of the Applicant, the way in which it was handled at the Devizes branch and the way in which the appeal was handled."

They conclude, at paragraph 29:

29 "We consider that these matters taken together amount to a fundamental breach of contract. The breaches, in main, emanate, in our view, from a culture within the Respondent's business of moving people virtually at will, at least within drivable distances."

and in paragraph 30:

30 "We have no doubt that the Applicant left as a result of these breaches."

29. For the purpose of the Tribunal's findings in relation to sex discrimination, to which we shall turn, they concluded that what they call the second and fourth requirements were not objectionable, but they found that the first requirement, which of course as we have indicated was in any event wrongly recorded by them, as is now common ground, and the third requirement, were discriminatory.
30. It is apparent from the Decision, and from the paragraphs from which we have quoted, that there was no express finding on the face of it as to what breach of contract, or breaches of contract, the Tribunal in fact concluded to amount to a fundamental breach, and why, in this regard, the Tribunal did not articulate in its conclusions the term or terms, the breach or breaches of which they found to amount to a fundamental breach or breaches. Given the well-established authority that a breach of the implied term as to trust and confidence as between employer and employee is a fundamental breach, it must be assumed that it was a breach of that term which the Tribunal found.
31. Nevertheless, a good deal of the consideration of the Decision relates to the mobility clause to which we have referred, and to which we now turn. There is some authority, to which the Tribunal was referred, relating to the issues on breaches of a mobility clause. It is apparent that there are arising out of this mobility clause two possible issues; and the Tribunal addressed both those issues, on the face of it.
32. The first can be summarised by reference to the Tribunal's decision as being the question of business reasons for the transfer. The Tribunal was referred to the case of White v Reflecting Roadstuds Ltd [1991] ICR 733. That case itself referred to an earlier decision, United Bank Ltd v Akhtar [1989] IRLR 507, to which reference was also made.
33. Ms Ashtiany has referred us to a subsequent decision, Clark v Nomura International Plc [2000] IRLR 766, which was not referred to below, in which both Akhtar and White were addressed, by the President, sitting then in the High Court.
34. It is quite clear from those decisions that, in relation to the operation of a mobility clause, it is not for the Employment Tribunal or for a court to decide what is reasonable or what a reasonable employer would do.
35. So far as the case of Akhtar is concerned, a decision of Knox J, that was addressed in White at pages 741 following and in particular at 742F. Wood P said:

"As Knox J emphasised in United Bank Ltd v Akhtar [1989] IRLR 507, a purely "capricious decision would not be within the express mobility clause."

36. In White the matter was considered somewhat further. Wood P said as follows at 741G:

"It is too broad an understanding of the words of Knox J [in Akhtar] to say that the implied term was that the employer should act reasonably. We do not so understand him and indeed, so to find would fly in the face of the authority of Western Excavating (E.C.C.) Ltd v Sharp [1978] ICR 221, itself. It would be to introduce the reasonable test by the back door. The term found to be implied by Knox J and those sitting with him was that an employer when dealing with a mobility clause in a contract of employment should not exercise his discretion in such a way as to prevent his employee from being able to carry out his part of the contract. That is a very different consideration."

37. At 742E Wood P continued:

"…it is important to recognise that where organisation and reorganisation is concerned it is for management to reach the decisions provided that they do so responsibly."

and then after referring to Akhtar and the "capricious" decision Wood P continued:

"Likewise, in the present case if there were no reasonable or sufficient grounds for the view that the employee required to be moved (as in a redundancy it would be a decision for management) then there would be a breach of the clause."

38. In Clark v Nomura International Plc [2000] IRLR 766 those cases were further addressed. This was not a mobility clause case but a case in which an employer had, on the face of it, a discretion as to whether to grant a bonus or not. We quote the following words of the President from paragraph 40 of that decision:

40 "Even a simple discretion whether to award a bonus must not be exercised capriciously [and reference is made to Akhtar] or without reasonable or sufficient grounds [and reference is made to White]. I do not consider that either of these definitions of the obligation are entirely apt, when considering whether an employer was in breach of contract in having exercised a discretion which on the face of the contract is unfettered or absolute, or indeed even one which is contractually fettered such as the one here considered. Capriciousness, it seems to me, is not very easy to define…It can carry with it aspects of arbitrariness or domineeringness, or whimsicality and abstractedness. On the other hand the concept of 'without reasonable or sufficient grounds' seems to be to be too low a test. I do not consider it is right that there be simply a contractual obligation on an employer to act reasonably in the exercise of his discretion which would suggest that the court can simply substitute its own view for that of the employer. My conclusion is that the right test is one of irrationality or perversity (of which caprice or capriciousness would be a good example) i.e. that no reasonable employer would have exercised his discretion in this way."

and the test is summarised again at the end of paragraph 40 as follows:

"…the higher test, not that the employer acted unreasonably, but that no reasonable employer would have reached the conclusion it did acting in accordance with its contractual obligations…"

39. In those circumstances the correct approach for the Tribunal would have been to consider the alleged business reasons put forward by the Respondent, and not then judge whether those business reasons were reasonable or appropriate, but to ask itself the question as to whether, in those circumstances, no reasonable employer would have concluded that there were business reasons for the transfer.
40. Of course, if there were capricious, or even malicious, reasons for the transfer, such perhaps as might have been found if the Tribunal had not rejected the Applicant's allegations as per paragraph 18 of the decision, that would be sufficient; but it is not for a Tribunal to second guess the business reasons if they are not perverse.
41. In fact, it is clear from the Tribunal's own decision that there were such business reasons. The Tribunal were clearly influenced by the fact that there was no note of the possible transfer of staff from Devizes to Trowbridge in the one-page minutes of the West Wilts Managers Meeting of 29 November 2000 (which had been referred to by Ms Fletcher in her evidence) but simply an 'action' relating to possible staff transfers out of Devizes to Bradford on Avon. But that said, the Tribunal nevertheless recorded the position in paragraph 5 of its Decision which we have earlier quoted, relating to the evidence by Ms Fletcher, and the Staff Rota analysis which was produced.
42. It was that business rationale which the Tribunal records was accepted by the Applicant at her appeal on 18 May and of course, as we have indicated, it is clear from paragraph 12 of the decision of the Employment Tribunal, that by that time she was in any event not wishing to return to Devizes.
43. At paragraphs 20 and 21 the Tribunal purports to address the cases of Akhtar and White as follows:

20 "We consider, therefore, firstly the issue of whether these facts amount to a constructive dismissal. We have been referred to United Bank Ltd v Akhtar [1989] IRLR 507 and White v Reflecting Roadstuds Ltd [1991] IRLR 331 which give considerable assistance on the way in which mobility clauses interact with the implied obligation on the employer not to do anything calculated or likely to damage or destroy the relationship of trust and confidence between the parties.

21 In this case there is an express qualification of the mobility clause, as set out above, but there is also the overriding obligation to make decisions responsibly, not to act capriciously and for there to be "reasonable or sufficient grounds for the view that [Mr White] required to be moved" per Wood P in White…, para. 27."

44. That, it seems to us, is, leaving aside entirely the fact that there was no reference before the Tribunal to Clark v Nomura, an inadequate citation of White, and in particular ignores wholly the very important principle which was underlined by Wood P in that very case; that it was for management to reach the decisions and, in effect, that the test was not whether those decisions were reasonable but whether no reasonable management could have reached the decision.
45. It was against that background that the Tribunal approached its conclusion which it set out in paragraph 23.

23 "Dealing first with the business need of the transfer. In the absence of any clear analysis at the time, and in the absence of any mention of this in the minutes, the respondents have totally failed to satisfy us that they acted reasonably in deciding to make a compulsory transfer."

That, as we have indicated, appears to us to place the onus entirely the wrong way.

46. The Tribunal continues:

"We accept that there was some problem in Trowbridge, but this came nowhere near the kind of need which would justify adding an hour to an employee's travelling time without any compensation either in pay, travelling expenses or reduced hours. Indeed, it is difficult for us to believe that this was the sole reasons for the transfer."

That last sentence is perhaps an impermissible attempt to resurrect the finding which the Tribunal had already rejected in paragraph 18 of the Decision.

47. The very acceptance by the Tribunal that there was some problem in Trowbridge, in our judgment, ought to have been, in this case, the stopping point before the Tribunal went on to make its own business decision as to 'whether that problem came anywhere near the kind of need' in the event.
48. It is apparent from paragraph 23 of the Decision itself that the Tribunal has intermingled what in fact ought to be two entirely separate questions, namely the question of sufficiency of business reasons (with which we have dealt) and the important question for which there is the saving in the mobility clause itself, namely the taking into account of the Applicant's personal and domestic circumstances. That, in our judgment, the Respondent would have been required to do, even without the express requirement in the mobility clause that they should wherever possible take such into account.
49. It would not extend, however, to any kind of absolute obligation, such as appears to be understood by the Tribunal, to reimburse or indemnify the employee in respect of any out of pocket loss resulting from any change of employment terms. The fact that there is no such obligation, certainly the fact that any failure to do so would not amount to a breach of contract, is clear from the very case of White upon which the Tribunal place such correct emphasis; namely at paragraph 739B:

"It is clear on authority binding upon us that where an employer acts within the contract of employment the fact that thereby there is caused to the employee a loss of income does not render the employer's act a breach of contract."

50. It can be said that when the Respondent originally discussed the transfer with the Applicant they did not at that stage articulate any limitations or variations to the transfer to cope with the personal circumstances of the Applicant, but it is not suggested that they knew of them until they were brought to their attention by the Applicant immediately after the meeting on 22 January, when the move was first proposed. Thereafter it is clear from the history which we have related that the Respondent did, perhaps not as quickly as one would have wished, and in the light of its own business requirements no doubt somewhat grudgingly, take into account the personal and domestic circumstances of the Applicant.
51. We are satisfied that if this were a case based alone upon a breach of the express mobility clause there would not be even an arguable case to that effect. But it is, as we have indicated, a case which is not based (although the Tribunal's decision is not entirely clear in this regard) solely or even possibly at all upon such breach. The case that the Tribunal appears to have found was a breach of the implied term of trust and confidence.
52. Before we address that, we must first address what appears to be a number of significant errors in the Tribunal's thought processes, quite apart from their apparent error in relation to consideration of business reasons, to which we have referred.
53. In paragraph 24 of the Decision the Tribunal concluded as follows:

24 "In relation to the selection of the applicant we note that there was no consultation or discussion with the staff at Devizes or elsewhere to see whether there were any volunteers to go to Trowbridge, nor was there any discussion with the applicant as to whether there were any advantages to her, for example in broadening her experiences in going to a larger branch. Furthermore there was no consideration of whether there could be a temporary secondment, or whether the problem could have been resolved within the Trowbridge branch by moving staff to the counter from other areas."

54. So far as that is concerned, the latter sentence appears to us once again to stray into the area of substituting the Tribunal's own business decision for that of the Respondent. It is clear that there was evidence before the Tribunal, not referred to by the Tribunal in its decision, by reference to the witness statements that we have seen of Ms Fletcher, of careful consideration in relation to the possibility of transfer of any of the other employees (all of them, as it turns out, being women) from the Devizes branch.
55. The suggestion that there was no discussion with the Applicant as to whether there were any advantages to her in going to a larger branch is no doubt a sensible one in personnel terms by way of a Respondent encouraging an unwilling employee to accept a business decision. But if it is intended to found a case that by virtue of the lack of such discussion there was a breach of the implied term of trust and confidence, it does not appear to us to be arguable.
56. In paragraph 26 of the Decision the Tribunal records:

26 "We are informed that changes of working pattern require three months' notice under the Respondents' personnel procedures. We would expect any permanent transfer to involve a similar notice period."

57. The Tribunal does not record the basis upon which it reaches that conclusion, whether it is thereby suggesting that there is or ought to be an implied term in the contract of employment of the Applicant, to the same effect in respect of transfers as in respect of working practice. But whatever may be the basis of the suggestion by the Tribunal, in fact there was three months' notice given in this case, because the only one of the four requirements, to which we shall return, that was in fact sought to be put into effect by the Respondent, namely requirement four, was made finally on 30 July 2001. It did in fact involve a change in hours, but it also involved the confirmation of the permanent transfer, and it was not to take effect until 1 November 2001, thus complying with any requirement for three months' notice.
58. At paragraph 27 the Tribunal recorded as follows:

27 "The authorities make clear that provision for meeting additional transport costs is a significant factor in the way in which mobility clauses are operated. However, the Respondents did nothing to ameliorate the substantial additional cost [of] travel or, more importantly for the applicant, the time taken away from her personal life from the additional travel."

It is not identified in that paragraph what cost is referred to; it is presumably the nine miles petrol for the extra nine miles there and back per day. The agreement between the bank and the union in respect of relocation assistance, which both sides accept is not directly relevant in relation to this case, provide that there will be help in respect of relocation, in respect of a journey, if that journey is one of at least 35 miles each way per day, if travelled by car.

59. It is apparent that any operation of a relocation clause within the contract of the Applicant is likely to cause additional inconvenience and cost and, as we have already indicated, we do not conclude that, on the facts of this case, there was a breach, an even arguable breach, of that clause. But in particular we do not understand what "authorities" are referred to by the Tribunal in paragraph 27. The only authorities that were considered by the Tribunal on the face of it were Akhtar and White; and White would appear to say the complete reverse in the passage at paragraph 739B, which we have already quoted.
60. We turn to paragraph 28 of the Tribunal's Decision, and here we come to what has been the nub of the argument before us today. It is plain that something caused the Applicant to resign. No-one throws up a job which, in the case of the Applicant, she had held for 20 years, for no reason at all. Resignation is, of course, something which carries no rights. It is only if an employee can establish that what otherwise appears to be a resignation in fact is a constructive dismissal because it amounts to an acceptance of a fundamental breach of contract by the employer, that any remedy flows. Every employee who resigns takes the risk that he or she will recover no compensation in respect of his or her action.
61. Equally it cannot be that a Tribunal concluding that there must have been some reason for the resignation must lean over backwards to find that there is a constructive dismissal. There must be one in law, and not simply a gut feeling that there must have been some reason why the employee resigned and thus that the employee should in some way be entitled to compensation. The requirement is of a fundamental breach by the employer, accepted by the employee. The test must plainly be objective. It is not enough if the employee feels that he or she is distressed and that he or she has lost confidence in the employer. It is equally not enough in the reverse situation; if the employer is upset by the conduct of an employee and feels let down by that employee. The test is whether there has been a total breakdown of trust and confidence between the parties.
62. One probable reason, as it appears to us and indeed Mr Drage in the course of argument went far towards accepting the strength of this case, for the resignation is the Applicant's suspicion or belief about the motive for the transfer from Devizes which, as we have already indicated, has been rejected by this Tribunal.
63. However, the other matter which clearly rankled with the Applicant relates to the events which we have recounted, in which the Respondent sought information from the school, and obtained it, that 8.30am was a possible drop off time.
64. It appears that the Applicant took that as an indication that the Respondent did not believe her, concluded that what she had been saying about the need for her to drop off her children at 8.50am, was some kind of dishonest statement by her and that consequently they, by double-checking what she was doing, were indicating that they did not have any trust in her.
65. The Tribunal addressed the facts in paragraph 28 of the decision as follows:

28 "In respect of the second grievance appeal, we consider that Mr Carver as the line manager was the correct person to hear it and was right to take into account his own knowledge of the background…The principal criticism of Mr Carver's process, however, is his decision to reject the applicant's contention about the time when she could drop [off] her children, in favour of an oral report by Mrs Hardy from personnel of a telephone conversation which she had not noted and which was never put to the applicant or her union representative. The only conclusion to be drawn from this is that he felt that the applicant had misled the management at each stage. The applicant, who is sensitive to such slights, was justified in treating this as a serious breach of the respondents' obligations in respect of trust and confidence."

66. It would be one thing to record that the Applicant felt that the Respondent must have concluded that she had misled them, but it appears to us quite impossible for the Tribunal to record that the only conclusion to be drawn from the position is that Mr Carver in fact felt that the Applicant had misled management. That was not the evidence which was led by the Respondent, and it is plain that there are many other potential conclusions other than the one recorded by the Tribunal. It cannot clearly begin to be the case that for an employer to check or doublecheck a statement by an employee is a breach of the implied term of trust and confidence because it suggests a lack of confidence in the accuracy of what is being stated by the employee, particularly in the course of a grievance process or disciplinary proceeding.
67. In any event, in relation to the situation here, what was being done was not, at any rate arguably, a challenge to what had been told them by the Applicant, but a checking as to whether, notwithstanding that the normal drop off time was 8.50am, there would be a way in which there could be an earlier drop off.
68. There are too many imponderables in relation to what was in any event the ongoing progress of grievance proceedings for the Tribunal to be in a position to conclude that the act by the Respondent in this case, in seeking information from the school, and then once the information was corrected immediately accepting the position, was repudiatory.
69. In any event, even if the Applicant had been entitled to treat an apparent mistrust of her by such checking or double-checking (if that is what it was) as repudiatory of her contract of employment. she did not accept such repudiation. She very properly and sensibly, with the assistance of Mr Davies, sought the restoration of the grievance procedure, obtained the letter from the school and put the matter right. The Respondent then accepted the position, and withdrew; and on 30 July made the new and final proposal which the Tribunal did not consider objectionable.
70. In those circumstances, it is in our judgment not arguable to contend that there was available for acceptance by the Applicant on 3 August 2001 a fundamental breach such as was suggested by the Tribunal.
71. It appears to us clear that the Tribunal did not at all analyse the questions that it had to ask:

(1) What is the term that is said to be breached? If it was the mobility clause, or even if it was the mobility clause overridden by an obligation of trust and confidence, the important facts were that at all times, as appears from paragraph 9 of the Decision, the temporary arrangement remained in place, whereby the Applicant was working as from 9.30am at Trowbridge and the final proposal of 30 July was not suggested by the Tribunal to be inappropriate or unreasonable;

(2) Whether there was a breach of such a term; and

(3) Whether the breach was accepted by the Applicant so as to establish a constructive dismissal.

72. We are satisfied that on the findings by the Tribunal in relation to this case, in which, after a lengthy period of the grievance procedure, the Respondent modified its position, in accordance with the requirements of the Applicant, but under correct pressure from her and Mr Davies, so as to arrive at what the Tribunal did not find was an unacceptable solution, there was no breach of the implied term of trust and confidence.
73. In the course of his closing submission, Mr Drage produced for us the minutes of the meeting of 27 July which led to the final proposal. The Respondent concluded its decision as follows:

"Now need to put this behind us. To use the skills for which Katherine was chosen at the outset."

and there was, at the same time, a similar letter from the Respondent sent to the Applicant with a view to, as it was put, "building up the mutual trust" between the parties.

74. We are satisfied that on any correct legal analysis of the facts as found by the Tribunal there was no unfair dismissal, because there was no constructive dismissal.
75. We turn to the question of the Sex Discrimination Act 1975. The material provision of the Sex Discrimination Act 1975 is at section 1 (1) (b), because the only finding by the Tribunal was one of indirect discrimination; and that reads as follows:

1 (1) In any circumstances relevant for the purposes of any provision of this Act…a person discriminates against a woman if:

…

(b) he applies to her a requirement or condition which he applies or would apply equally to a man but:

(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii) which is to her detriment because she cannot comply with it.

76. Ms Ashtiany takes the preliminary point that the requirements such as they were in this case did not, or were not proved by the Applicant to, fall foul of section 1 (1) (b) (i) because, Ms Ashtiany submits, all the potential transferees at the Devizes branch were, as we have indicated, women; and thus the pool of comparators with whom the Applicant should be compared were all women.
77. Mr Drage submits that the relevant pool with which the Applicant should be compared is either men generally, notwithstanding that the only actual comparators in this case were women, or other potential transferees at other branches than Devizes, as to which we have and the Tribunal had no evidence.
78. Ms Ashtiany describes this point as a difficult point. We do not propose to decide this case on the basis of it and we leave the matter over for consideration on another occasion. It is not necessary for our conclusion to resolve it, and we assume, for the purposes of this appeal, that there was a material pool and that section 1 (1) (b) (i) would otherwise be complied with.
79. But her major attack relates to the way in which the Tribunal has constructed the discrimination in question. For the purpose of our description of what occurred, we have, as can be seen, adopted the format in paragraph 33 of the Decision, subject to the correction of the first alleged requirement.
80. The Tribunal found four requirements, and concluded that each one can and should be looked at separately as a requirement falling within section 1 (1) (b), and that of those four the first and third were objectionable and discriminatory and the second and fourth were not. In fact, as is now clear from the correction which (with Mr Drage's agreement) we have made to the so-called first requirement, namely that it in fact constituted a start time of 9.15am and not 9.00am, the first requirement would fall by the way as discriminatory and it would only be the third in relation to which the Tribunal's conclusion could stand in any event.
81. This is a wholly artificial way of looking at what in fact happened. What in fact happened was that there was a proposal for a transfer by the employer, and, in the absence of any of the other employees at Devizes being appropriate, the selection of the Applicant for that purpose was immediately followed by the proper objections raised by the Applicant, which were then considered, both initially by the management and in due course through the grievance procedure.
82. As Ms Ashtiany points out, there is no suggestion that the mobility clause itself is discriminatory, or that the transfer itself is in some way discriminatory. It was the question of the start time about which so much negotiation was had during that summer of 2001 which alone is said to have constituted discrimination and in the analysis and in the event it is only one out of the so-called four requirements which was found discriminatory; the basis of the discrimination being that to impose a 9.00am start would discriminate against those who have children to drop off, and that it is to be taken as read that more women than men have childcare responsibilities.
83. In our judgment, this is not a question at all of four separate requirements, but of one ongoing negotiation ending in only one requirement which was then to be put into effect, namely the fourth requirement, which was conceded by the Tribunal not to be discriminatory.
84. The starting point clearly is section 1 (1) (b) of the Act which refers to "a person discriminates against a woman if…he applies to her a requirement or condition which he applies or would apply equally to a man" but is unfavourable in the respects set out in the balance of the sub-paragraph.
85. Ms Ashtiany concedes that that can apply, so far as discrimination is concerned, to, for example, a term in a contract anticipatorily, before it is actually brought into effect; but it applies to a person because it is an enforceable part of his or her contract.
86. But in our judgment it cannot possibly be relevant in relation to a suggested variation of a contract or a suggested imposition of a duty or obligation which is permitted by a contract but which is never in fact brought into effect and never does bind the person in question.
87. The difficulties if the contrary were the case are obvious. First, it would mean that in any negotiation between employer and employee which ended in a satisfactory and non-discriminatory requirement, a Tribunal would be able to intervene and the Applicant would be able to allege that it ought to intervene at every stage of such a negotiation to allege that a particular position being taken by an employer at any given time was discriminatory, even if the end product was not.
88. So far as the application of the balance of the 1 (1) (b) is concerned, again one sees the problems that would arise if a requirement, as it is put by the Tribunal, which is not insisted upon, and not put into effect, is to the detriment of an employee, because she cannot comply with it within section 1 (1) (b) (iii). Mr Drage submits that there may be a detriment simply by virtue of the fear that it may be put into effect; the concern, the distress, for example, of his wife at the prospect of the requirement being imposed.
89. But quite apart from the question as to whether there is a detriment, it is difficult to see how the issue as to whether it can be complied with can be tested when it is never sought to be imposed. Even if that is not the case, the issue of justification is going to arise, and how can an employer be expected to bear the onus of justifying a requirement which he in fact does not seek to impose or stand by, because he has never sought to put it into effect.
90. Other problems would arise in relation to the questions which do in fact arise on the remedy appeal here, by reference to section 65 of the 1975 Act, and the issues of unconscious discrimination; and the issues which arise under section 65 (1) (b) of the Act.
91. In any event, the reality here was that there was not a series of requirements, but an evolving situation in which the question as to what the requirement was going to be was under constant review and finally settled down to the fourth of the requirements. It is perhaps indicative of the artificial and difficult approach of the Tribunal, that it itself got the first requirement wrong, by dint of running together two different positions that were being considered. The first, namely 9.00am, was only being considered by the employer before the objection had been initially raised by the Applicant; the second, namely 9.15am, being overlooked by the Tribunal when it came to articulate the first requirement.
92. The final and most significant aspect arises because of Ms Ashtiany's ostensibly quite separate point on time limits. Because it was not anticipated that the Tribunal would carve out the negotiations in the way that it did by creating four separate requirements, neither side appears to have addressed the question of limitation.
93. If limitation falls to be addressed, as it must, as it is a question of jurisdiction, the fourth requirement is the only one that is in time, having been imposed on 30 July, and that is the one which the Tribunal has held, rightly, not to be discriminatory. Similarly, of course, the second was not held to be discriminatory. The first is now clear not to have been a requirement in the form set out by the Tribunal, and on the basis of the Tribunal's logic would not have been discriminatory.
94. The third, however, is said by the Tribunal to have been discriminatory, and to have been imposed on 22 May. On the face of it that means that it is out of time, because it is a requirement imposed more than three months before the launch of proceedings. It cannot possibly be saved by any concept of continuing act, because it did not have a continuing effect, being replaced on 13 June by the agreement with the Trowbridge management and formally abandoned on 28 June; and eventually by the fourth, and acceptable, requirement on 30 July. There would have to have been, and was not, some consideration by the Tribunal as to whether in the exercise of its ordinary discretion it would extend time for the making of this, and this alone, surviving discrimination case, and one which it found on the remedies hearing, in any event, to have been unintended discrimination.
95. In all those circumstances, we are satisfied that the Tribunal erred in law in concluding that there was discrimination in this case. We conclude that the only requirement which was sought to be imposed was the one which is described in paragraph 33 (4) of the Tribunal decision, that there was never any earlier settled decision by the Tribunal, and that it is not permissible to break up the course of events which led to the final requirement in the way that the Tribunal did.
96. If the matter of time alone had been relevant, then of course we should have considered at least sending the matter back to the Tribunal to consider whether there should be an extension of time in relation to the third requirement. But as we are satisfied that the so called third requirement cannot and should not be looked at separately, we do not propose to do so, and we conclude that there is no case in law of sex discrimination.
97. In those circumstances the appeal on liability must be allowed and we substitute findings that the dismissal was not unfair and that there was no sex discrimination. In the light, however, of the fact that there is the separate appeal on remedy, we shall deal shortly with the submissions that have been put before us.
98. So far as unfair dismissal is concerned, the attack by Ms Ashtiany primarily concentrated on aspects of the Decision on remedy which closely interrelate with the decision which we are making in this case as well as in Dunnachie, on the appropriateness and applicability of the Ogden tables. In particular, Ms Ashtiany points to paragraph 10 of the Decision, reminds us that the onus is upon the Applicant to establish loss, and complains in that context that there is a broad-brush decision to use the Ogden tables, and a statement that "it would be inappropriate to speculate" whether the differential in earnings which they found to exist between the Applicant's job with the Respondent and the job which shortly afterwards she obtained with another employer, is to duck the very issue requiring consideration. We propose to say no more about that aspect, because we have allowed the appeal on liability, and because the question is better dealt with when we consider it in the context of the Ogden tables appeal.
99. There are two separate and distinct matters which are then raised by Ms Ashtiany and to which Mr Brown has responded, first, by reference to childcare expenses and, second, by reference to 'past pension', as it is helpfully put by Mr Brown. Mr Brown accepted that any issue in relation to future loss of pension rights would need to have been reconsidered in any event within the confines of the Ogden tables appeal; but of course, in any event, no longer being relevant because we have dismissed the liability appeal.
100. So far as childcare expenses and past pensions are concerned, anything we say is now academic because of our conclusion on liability, but we would wish to take this opportunity to emphasise that where the parties, either of their own accord or at the instance or encouragement of the Tribunal, get together to prepare schedules of loss, it is absolutely essential that the basis of what is being prepared and agreed is clearly set out and established. What is said before us, understandably, by Mr Brown, who is of course a layman, is that he had understood, and he may well be right, that what was being agreed was not only the figures but also the principle and the recoverability of the items in the schedule. What Ms Ashtiany submitted, although she herself was not party to the negotiations which occurred on an adjourned hearing in April 2002, was that all that was being agreed was as to the figures, for example in relation to childcare expenses, eliminating the need for specific proof of the various sums.
101. In the light of the academic nature of this appeal, we do not need to reach any conclusion in this regard, although we note that the Tribunal at least considered that the figures were agreed, albeit that in relation to at least one of the figures they nevertheless permitted argument to be run: see paragraph 6 of the Remedies Decision. But we take the opportunity of this case, as illustrating the problems and dangers to which we have referred, to emphasise the need for care to be taken in the future, particularly if, as a result of the Ogden tables appeal in which such matters are being considered, schedules of loss are to become more frequent.
102. So far as compensation for sex discrimination is concerned, again this is now academic. But there were two matters that were primarily argued before us; Ms Ashtiany not in the event pursuing very hard an argument on mitigation which she had contained in her Notice of Appeal.
103. The first related to whether there was in fact jurisdiction in the Employment Tribunal to make the order it did, effectively of either £7,000 or £7,500 (to which difference we will refer in a moment) in favour of the Applicant.
104. The Tribunal expressly found, by paragraph 30 of the Remedies Decision, that the Respondent had satisfied it that it did not intend to treat the Applicant less favourably on the grounds of her sex. This was therefore unintentional discrimination, within section 65 of the 1975 Act. Where unintentional discrimination is found, then before being in a position to award compensation the Tribunal must follow the procedure in section 65 (1B) which reads as follows:

65 (1B) "As respects an unlawful act of discrimination…if the respondent proves that the provision, criterion or practice in question was not applied with the intention of treating the complainant unfavourably on the ground of his sex…an order may be made under subsection (1) (b) only if the employment tribunal –

(a) makes such order under subsection (1) (a) and such recommendation under subsection (1) (c) (if any) as it would have made if it had no power to make an order under subsection (1) (b); and

(b) (where it makes an order under subsection (1) (a) or a recommendation under subsection (1) (c) or both) considers that it is just and equitable to make an order under subsection (1) (b) as well."

The reference is to section 65 (1), which reads as follows:

65 (1) "Where an employment tribunal finds that a complaint presented to it under section 63 is well-founded the tribunal shall make such of the following as it considers just and equitable –

(a) an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;

(b) an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court…;

(c) a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates."

105. It is plain that it is ordinarily considered that unintentional defamation will relate to a state of affairs which is in a position to be remedied by the employer. Of course in this case, the finding of the Tribunal related to a purported requirement which was in fact withdrawn within days of being made. A section 65 1 (c) recommendation was therefore inapt.
106. But before making an order for compensation, as can be seen, the Tribunal was required to make an order under section 65 (1) (a). It plainly did not do so. It then has to go on and consider whether it is just and equitable to make an order for compensation as well; and given that it had not made an order under section 65 (1) (a), it would be difficult to say that it had necessarily contemplated the question as to whether it was appropriate or just and equitable to make an order for compensation as well as something that they had not in fact done.
107. If we were otherwise minded to uphold the decision on sex discrimination, we would have inevitably quashed the compensation awarded for sex discrimination in this case but would have sent the matter back to the Tribunal to operate, if it so concluded, properly the procedure under section 65 (1). But in the circumstances that is not necessary or appropriate.
108. As for the question as to the compensation that was awarded and whether it is just and equitable, particularly as well as the making of an order under section 65 (1) (a), it appears to us that had the matter remained for consideration, which it does not in the light of our decision on liability, we would have been persuaded that this order could not stand. Having broken up the conduct of the employer, in the course that matters took, into the four separate requirements, the Tribunal made a finding, as we have indicated, that the first and third of those four requirements were discriminatory. It is already apparent that its conclusion in respect of the first requirement must fall because of the error in relation to the description of the requirement which cannot have been discriminatory in the light of the 9.15am start, even on the basis of the Tribunal's finding itself.
109. But on the face of it the Tribunal awarded in the text of its judgment £3,500 in respect of that first requirement, together with interest; and £3,500 in respect of the third requirement. The schedule to the order, however, recites £3,750 in each case and we have to assume that the latter rather than the former is an error. On the face of it there is (or was) a total amount of compensation so split of £7,000 (alternatively, £7,500), which would now in any event fall to be reduced to £3,750 or £3,500, presumably the latter, as a result of the accepted error in relation to the first requirement.
110. Quite apart from the recent guidelines in Vento, this is a case, Ms Ashtiany submits, which falls foul of the approach of the court in Tchoula v ICTS (UK) Ltd [2000] ICR 1191. Certainly the amount as it stood before today, of £7,000, was a substantial sum, and did not, in Ms Ashtiany's submission, take into account the fact that, to quote Tchoula at 1205D, the Applicant had failed to prove most, if not all, of her complaints of discrimination. Her major claim was that there was an underhand, undisclosed motive in relation to the transfer, which we have already indicated the Tribunal rejected. In any event, the conclusion was of unintended discrimination, which is not of course the case that the Applicant brought. Further, even on the artificially carved-up basis which the Tribunal created, two out of the four requirements were found to be non-discriminatory and it is now clear that three out of those four were non-discriminatory.
111. We are left completely uncertain as to the basis upon which the Tribunal arrived at either its overall figure or its separately allocated figure, and entirely unclear as to whether it took into account either the fact that this was an unintended discrimination or the matters set out in Tchoula, and, particularly as we would have in any event remitted the matter for a proper consideration under section 65 (1) (b) as a matter of jurisdiction, we would in any event have remitted the question of compensation as well. But, in the circumstances that have arisen, we do not so remit, and we allow the appeal on remedy also.