Appeal No. UKEAT/0857/03/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 March 2004

Before
HIS HONOUR JUDGE MCMULLEN QC
MR D EVANS CBE
MR D J HODGKINS CB

MR I EL-HOSHI	APPELLANT

PIZZA EXPRESS RESTAURANTS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A OHRINGER
(Representative)
Fulham Legal Advice Centre
679a Fulham Road
London SW6 5PZ	
For the Respondent	MR N de MARCO
(of Counsel)
Instructed by:
Messrs Lewis Silkin Solicitors
Employment Department
12 Gough Square
London EC4A 3DW	

SUMMARY

Unfair Dismissal / Public Interest Disclosure

Held: an employee who makes a protected disclosure, and is subjected to a repudiatory breach of contract as a punishment therefor, does not affirm the breach merely by delaying 3 months while submitting sick notes and receiving statutory sick pay in respect of depression caused by the punishment.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about protection of a whistle-blowing employee who has made a disclosure in the public interest which is followed by repudiation of the contract by his employer.  The judgment represents the views of all three members.  We will refer to the parties as Applicant and Respondent.

Introduction

2.	It is an appeal by the Applicant in those proceedings against a decision of an Employment Tribunal sitting at London (Central), Chairman Ms A Stewart, registered with Extended Reasons on 22 August 2003, following four days hearing and a day in chambers.  A second decision was made on remedies following a further day’s hearing, registered with Extended Reasons on 22 October.

3.	The Applicant was represented by Mr P Mitchell of Counsel in the early stages of the hearing and subsequently by Mr Adam Ohringer of the Fulham Legal Advice Centre, as before us.  The Respondent was today represented by Mr Nicolas de Marco of Counsel and at the hearings before the Employment Tribunal by other Counsel.

4.	The Applicant claimed that he had been dismissed and subjected to a detriment for raising a protected disclosure.  The Respondent denied the claim.  The essential issues developed before the Employment Tribunal were set out as follows:

“The Issues
2	The issues which the Tribunal had to consider were as follows:
a)	Did the Applicant resign or was he constructively dismissed by the Respondent, and what was the effective date of termination of his employment?
b)	Given that it was admitted by the Respondent that the Applicant had made a protected disclosure, had he been subjected to detriment by the Respondent as a result?”

5.	The Tribunal decided that his complaint of unfair dismissal failed but upheld his claim to have been subjected to a detriment, contrary to section 47B (1) of the Employment Rights Act 1996.  A further claim for non-payment of bonus was withdrawn by the Applicant.

6.	At the adjourned hearing compensation was awarded to the Applicant in the sum of £9,640.75 which included compensation for injury to feelings in the sum of £3,500 and £640.75 representing losses attributable, which are generally speaking wage losses.

The Appeal

7.	The Applicant appeals against the dismissal of his claim for constructive unfair dismissal.  There is no appeal against the finding of unlawful detriment by the Respondent.  The Respondent initially brought an appeal against the compensation order but it was withdrawn by consent this morning.  Certain findings in the compensation decision are relevant to the findings in the liability decision and to our decision today.

8.	The appeal was subject to directions given by His Honour Judge Richardson sending the case to a full hearing and by myself adding the appeal in respect of compensation

The Legislation

9.	The only relevant legislative provision on appeal is section 95 (1) (c) of the Employment Rights Act 1996:

“95	Circumstances in which an employee is dismissed
(1)	For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, only if) –
…
(c)	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.”

10.	The right not to be unfairly dismissed for raising an issue connected to the Public Interest Disclosure Act 1998 provisions is found in section 103A:

“103A	Protected disclosure
An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

11.	That invokes Part IVA which is generally known as protection for whistle-blowers.  Those provisions set out a code for the determination of whether a disclosure is a matter which is protected and the conditions applying to such protection.

12.	The Tribunal directed itself extensively to the provisions of Part IVA which regulate how claims for both unfair dismissal, and detriment falling short of a dismissal, should be handled.  The Tribunal was not addressed by either advocate on section 95 (1) (c).  Nevertheless, it is not contended that the Tribunal’s self-direction is in any way at fault:

“28	1.	In order to succeed in his complaint of constructive dismissal, the Applicant must show that the Respondent is in breach of his contract; that this breach is fundamental; that it caused him to resign and that he did resign.  Further, he must not expressly or impliedly have affirmed the contract by actions and/or material delay indicating an intention to continue to be bound by it subsequent to the breach complained of.”

The Facts

13.	Café Pasta is part of the Pizza Express chain of restaurants which is a nationwide organisation serving Italian food.  The Applicant is Egyptian by birth and is a British National.  The Respondent employed him as a chef and then as Assistant Branch Manager of its restaurant in High Holborn, which is at the heart of the legal quartier in central London.  The manager of the branch is Mr Joe Powell.  There is always a manager on duty.  It is a busy branch.  There are peaks, as one would expect, at lunchtime and in the evening.

14.	In January 2002 the Applicant discovered that Mr Powell had engaged a person who in those days was known as an illegal immigrant without paying national insurance contributions and had decided to disguise this matter by changing names of the relevant chef.  The Applicant was concerned.  He raised his concerns in an appropriate manner and it is accepted that he was within the protection of PIDA.  His disclosure was of a matter in the public interest and it was not contended that he was not acting in good faith or failed to meet any of the other conditions.  

15.	As a result of his raising this matter he was punished by being rostered to work four nights in the kitchen.  That was unique.  He found it humiliating.  On being told by Mr Powell that he would do this, he could work for only a few hours before walking off site on 9 January 2002.  The Tribunal found as follows:

“16	…
(i)	Although the rostering of the Applicant in the kitchens for 4 shifts in 1 week was a one-off act by the Respondent, the Tribunal found that the Applicant was not told how long this arrangement might last for not that it was to be for 1 week only.
(ii)	He was very distressed as he perceived himself as being punished for having raised the issue of the employment of illegal immigrants.
(iii)	As Assistant Manager his effective demotion to chef, at least in terms of duties, publicly before all the branch staff whom he had managed up to that time was felt to be acutely humiliating by him.
(iv)	He was unable to bear the prospect and walked out of his shift.”

16.	He never returned to work.  On 5 April 2002 he filed an Originating Application.  Between those dates events occurred which the Respondent contends constituted affirmation of the contract after its breach.  The Tribunal decided that, while the Applicant had a legitimate claim for being subjected to a detriment, he was not constructively dismissed for he had affirmed the fundamental breach of his contract.  The affirmation took place on 5 April 2002 by his filing of the Originating Application, that is letting the employer unequivocally know that he was leaving.  Therefore he forfeited his right to claim constructive dismissal.

17.	It is necessary in due course to examine what occurred between these relevant dates.  The practical effect of the finding by the Tribunal was that the award of compensation reflected only part of what the Applicant had originally claimed to be his grievances and that his compensation was only in respect of having suffered a detriment and was not for having been dismissed.

18.	While the Applicant was off he constantly submitted sick notes covering the whole of the period.  These were expressly in relation to depression.  The Tribunal held that his depression was due to what happened on 9 January 2002.  The Applicant corresponded with the relevant manager and all of the material was before the Employment Tribunal.  It has to be said that the senior managers of the Respondent expressed themselves ready and willing to meet the Applicant to discuss the allegations he was making and his concerns.  However, because the Applicant was unwell, this date was put back by the Respondent on a number of occasions.  For example, on 15 January 2002 the presentation of a sick note caused the postponement of the first intended meeting.  That pattern was repeated throughout the relevant period up to at least 13 March 2002, which is a date significant in other respects.

19.	The correspondence indicated the Applicant’s concern, for he expressed himself as follows:

“When I excepted working for Café Pasta I was told that we are one big family and that is how I was expected to work in that envirment and not if I rase any matter to fire back on me.
So I would like to have your remark about the matter that I rased with you and Joe on Monday the 7th of January regarding the employment by Joe of staff with fault document.
What action have you taken with Joe?
I think I have a very seriouse grevince aginsest Mr Joe and on recipet of your replay I would put it in writing and on my state of mind in better shape.
So please let have your respond as soon as posibale please.
And rest I asure you that I have not blow any whistle yet?”

From that it is clear that the Applicant wished measures to be taken in respect of the manager Joe Powell, that he had a grievance and that he was at this stage unable to put his matters down clearly because he was unwell.

20.	Similarly, on 12 February 2002 he raised matters of concern and again indicated he was even more depressed about what was going on.  On 17 February he indicated that he had never refused to meet the relevant management but simply had to cancel the meeting because he was unwell.

21.	Throughout the period up to 13 March the Applicant was in receipt of various forms of payment.  For the first 12 days he was entitled, by contract, to sick pay.  Thereafter he was entitled to statutory sick pay only.  He sought payslips for the purposes of his other entitlements under the social security system and was paid in accordance with either the contractual or the statutory scheme.

22.	On 13 March solicitors appointed by him wrote a letter which is a matter of contention in this case.  In a letter addressed to Mr Taylor, the Human Resources Director of the Respondent, they said in relevant part as follows:

“We have been instructed by Ibrahim El-Hoshi in connection with a claim for constructive dismissal and non-payment of bonus.
…
In view of the treatment our client on the 7th and 9th of January the relationship of trust and confidence which our client is entitled to expect from his employer has been totally destroyed.  In the circumstances we consider Pizza Express have committed a repudiatory breach of our client’s contract of employment and our client is therefore entitled to treat himself as constructively dismissed.
With regard to the question of bonus we understand that this is normally paid three months in arrear.  Our client has not received any bonus payment since moving to Café Pasta.
We look forward to receiving your response to this letter together with a copy of the diary entries made for the branch at High Holborn where our client worked for the 7th and 9th of January.”

In the passages that we have omitted from the citation above there is an account of the Applicant’s case.

23.	The letter appears to have met with no response and on 5 April 2002 the Applicant presented his Originating Application.  The Tribunal found that the letter of 13 March was not his acceptance of the Respondent’s repudiation of the contract because it was equivocal.  The Tribunal held that the effective date of termination occurred on the unequivocal lodging of the Originating Application.

The Applicant’s Case

24.	On behalf of the Applicant it is contended that the Employment Tribunal erred in two respects.  First, as a matter of pure construction, and thus of law, the letter did indicate clear acceptance by the Applicant of repudiation.  It was contended that this letter opened with a claim of constructive dismissal, it did not suggest an amicable solution or negotiation, it was an open letter and not written “without prejudice”, and it was a letter before action in accordance with good practice before Employment Tribunals and of course required by the CPR in civil actions.  The letter demonstrated that action had been taken by the Respondent which had gone to the root of the employment relationship.  It was contended that if this was the correct construction the matter should be returned to the Employment Tribunal to consider whether affirmation had occurred during the 10 weeks from early January to the date of this letter.

25.	Secondly, it was contended that the Tribunal had wrongly determined that the Applicant had forfeited his right to claim constructive dismissal by his affirmation of the breach by the Respondent.  The Tribunal described it as the following:

“38	However, in the present case there was not merely a delay of 3 months.  There was also the continued sending in of sick-notes and the acceptance of sick-pay.  The case of Bashir was confined to its very special facts where the employee had been demoted but was continuing to assert his previous position as a supervisor and was held to be affirming only this previous contract by receiving sick-pay which was the same amount for supervisors as for other staff.  The Tribunal accepted that the Applicant did write to the Respondent periodically asking what disciplinary measures were to be taken against Mr Powell, but refusing on medical grounds to attend meetings arranged by the Respondent to discuss his concerns.  However, in all the circumstances the Tribunal concluded that in sending in sick-notes, receiving sick-pay and delaying 3 months in resigning after the operative breach of trust and confidence, which was being rostered in the kitchen for 4 shifts in 1 week, the Applicant must be taken to have affirmed the contract.  Accordingly his claim for constructive dismissal fails.”

26.	It was contended that the affirmation found by the Employment Tribunal amounted to an error of law for it had failed properly to apply the authorities.  On this ground, if the Applicant succeeded, a different remedy would reveal itself.
The Respondent’s Case

27.	On behalf of the Respondent it is contended by Mr de Marco that the Notice of Appeal attacks the letter of 13 March on the basis of perversity.  That of course raises the bar very high: see Yeboah v Crofton [2002] IRLR 634 (CA).  In fairness Mr de Marco recognised that the attack was on the construction of the letter and he was not in any doubt as to the way in which the case was put.  It seems to us that it is wrong to categorise a construction of a document as being perverse.  There is only one true construction, of course.

28.	Again applying the authorities which have been put before us by Mr Ohringer, the letter was equivocal in that it did not unarguably determine the relationship between the Respondent and the Applicant.  The letter was a solicitor’s letter.  It is in connection with a potential claim and not in respect of an action which has crystallised.  It was in language which evoked negotiation.  No date was given for the precise termination.

29.	The Respondent further contended that this matter was not fundamental to the Tribunal’s finding, for the Tribunal did not say that mere delay, or delay of 10 weeks, constituted an affirmation.  It looked at the whole of the context of this relationship between January and April 2002.

30.	Secondly, the real question was whether there was implied affirmation.  It was not suggested there was an actual affirmation.  It is not disputed that there was a repudiatory breach.  The Applicant has to cross the threshold of perversity in this case; that is, that the Tribunal examined the facts and an overwhelming case has been made against its findings.  Such does not occur in this case.  Essentially it made no difference to this point whether the Applicant resigned by his solicitor’s letter of 13 March or on 5 April.  Again reliance was placed upon authorities.

The Legal Principles

31.	The authorities to which both Counsel have referred appear to enunciate the following principles.

32.	As the Tribunal correctly adopted in its précis above, Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 is authority for the source of the learning on constructive dismissal.

“15	THE CONTRACT TEST
On the one hand, it is said that the words of subsection (c) express a legal concept which is already well settled in the books on contract under the rubric 'Discharge by breach'.  If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer's conduct.  He is constructively dismissed.  The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice.  But the conduct must in either case be sufficiently serious to entitle him to leave at once.  Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.  He will be regarded as having elected to affirm the contract. “

33	That judgment by Lord Denning MR was applied to a situation similar, it is said, to our case, in Bashir v Brillo Manufacturing Co Ltd [1979] IRLR 295.  In that case a supervisor who had been involved in a disturbance was suspended without pay.  The other employee in the disturbance was dismissed.  The Applicant in that case, Mr Bashir, was offered a labourer’s job in another department at a lower rate of pay.  Following his suspension he remained off work and some two weeks after the incident, reported sick and applied for and was given sick pay.  Sick pay was at the same level for labourers and supervisors.  Four months later, the Applicant claimed constructive unfair dismissal.  It was contended that during the interregnum he had affirmed the contract.  Slynn J presiding at the EAT said as follows:

14.	“…it seems to us here that the first question is whether, in this particular case, the Industrial Tribunal have misapplied or misinterpreted what was intended by the Master of the Rolls in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27.  Now it is, of course, clear that if an employer seeks to impose upon an employee new terms of employment and the employee begins to work for any period of time under those new conditions, then he may well be taken to have accepted them; he may lose his right to say that there was a repudiation of the contract.  There may be putting it another way, by conduct, come into being a variation of the contract.  But Mr Sedley says that the mere lapse of time is not, in itself, sufficient and one has to look at all the factors in the case.
15.	It seems to us that here if Mr Bashir had gone back and had worked for a period without evincing his acceptance of the repudiation, then clearly it would have been too late for him to bring a claim for constructive dismissal.  But through the period Mr Bashir, or his advisors, were here saying, very positively, that he did not accept the new position which the employers sought to offer to him.  There is only one matter which can be relied upon by the company to suggest that he had in any way affirmed the contract.  That is the application for, and the receipt of, sick benefit paid by the company, which is accepted by both sides to be consistent with the continuation of a contract of employment.  Indeed both sides were saying, right to the end, that Mr Bashir was still employed by the company. 
16	But that does not, of itself, seem to us to be necessarily fatal to Mr Bashir's claim.  It seems us that when the Master of the Rolls is talking about the employee continuing for any length of time without leaving he is referring to a situation where the employee actually does the job for a period of time without leaving, or if he does some other act which can be said to affirm the contract as varied. The most that can be said here is that Mr Bashir, by applying for and taking the sick benefit, was affirming the existence of a contract of employment.  He said it was employment as a supervisor and he would accept no employment at a lesser wage.  But because the amount of sick pay is the same for a supervisor as for a labourer or other worker in the kind of job which Mr Bashir might have done, it does not seem to us that it can be said that by the receipt of sick pay he has done an act to affirm the contract 

17	Accordingly here it seems to us that the Industrial Tribunal, although quite rightly seeking to apply the decision of the Court of Appeal in Western Excavating v Sharp [1978] IRLR 27, have attached too much to the mere passage of time.  What they really had to consider was whether, he not having worked, there were other factors which could be taken as showing an election to affirm the contract as varied.  On the very special facts of this case, where the employee was absent sick for some two-and-a-half months after the act of the employer which is relied upon as a repudiation, and where the employer was also pressing the man to take the new job, realising that he was refusing it, but going on to pay him sick pay, it seems to us that Mr Bashir was still entitled, at the end of the period, to say when he was ready, or apparently ready, to go back to work that he accepted the repudiation.”

34	A similar theme was adopted by the EAT, His Honour Judge Burke QC and members in Wedgewood v Hortimax Ltd (EAT/997/01/ILB) 25 March 2003, where the following principle emerges:

“16	Although in Western Excavating (E.C,C) Ltd -v- Sharp [1978] ICR 221 Lord Denning laid down the principle that an employee:
“must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged”
it is clear from subsequent decisions that the passing of time alone may not be sufficient to prevent an employee from accepting a fundamental breach of contract and claiming that he has been constructively dismissed.  It is, for example, well established that time must not begin to run until the employee knows of the breach; and once he knows of the breach, as Mr Wedgewood did on 17 December, the reasons for the passing of time put forward by way of explanation by the employee may be such that it would be wrong for a Tribunal to draw the inference that the employee has elected to affirm the contract and not to treat the breach as repudiation of the contract.  An example might be a case in which the employee is seriously ill during the period of delay; another might be a case in which the employee, rather than reacting immediately to the breach by accepting the employer’s repudiation, gives the employer the opportunity to withdraw from the offending course of action, or to remedy the breach.”

35.	In the construction of a letter said to be an acceptance of a repudiation the Court of Appeal in Harrison v Norwest Holst Group Administration Ltd [1985] IRLR 240. held that the principle to be applied was set out in paragraph 13 by Cumming-Bruce LJ:

“13	So they came to what they finally regarded as the central issue in the case, did the letters of 17 and 21 June amount to an unequivocal acceptance by Mr Harrison of the employers’ repudiation of his contract of employment?”

36.	In construing a letter the use of the words “without prejudice” are important and often conclusive: see Harrison (above) at paragraph 25 per Cumming-Bruce LJ, paragraph 42 per Neill LJ, and paragraph 48 per Sir Dennis Buckley.

37.	Construction of such a letter is a matter of pure law.  Decisions about the affirmation of a contract are matters of mixed fact and law, applying the doctrine of affirmation of contract to facts found.

Conclusions

38.	We accept the arguments of the Applicant and have decided that the appeal should be allowed.

Construction of the letter

39.	This is a matter of construction.  We consider that there are significant differences between this letter and the letter under scrutiny in Harrison.  The letter represents a settled decision by the Applicant through his solicitors that he had been dismissed.  The words “the relationship of trust and confidence … has been totally destroyed” describe a position which has already been reached.  Of course a contract of employment cannot survive a rupture of the relationship of trust and confidence: see for example Malik v BCCI [1997] ICR 606.

40.	Secondly, that past position is reiterated in the next sentence: “Pizza Express have committed a repudiatory breach”.  We do not consider that the words “our client is therefore entitled to treat himself as constructively dismissed” as diminishing the power of the expression of that settled position.  It is, as a matter of language, very similar to the statutory language in section 95 (1) (c) which Lord Denning MR in Western Excavating v Sharp (above), entitled a legal concept.

41.	In contrast to the letter in Harrison, there use of the words “without prejudice”.  There is no suggestion that there may be negotiations on this matter, or that the matter may be resolved amicably, or that the solicitor writing the letter may have misunderstood the position inviting an alternative exposition.  All of those distinguish the letter in our case from that construed by the Court of Appeal in Harrison.  As we have indicated, a powerful determinant in that case was the existence of the words “without prejudice”, which of course is the banner under which negotiations may be invited or conducted.  This was an open letter sent by solicitors.  We accept that of course it is to be construed in the light of its being written by a solicitor, but so was the drafting, if not the signature, in Harrison.

42.	This was unequivocal acceptance of repudiation.  No forward date is given.  That is true.  Therefore, the date is the date of the letter.  On that date the intention of the Applicant was to accept what was undoubtedly repudiatory conduct on 9 January.  As Mr de Marco aptly commented, this may not make a lot of difference, for it simply changes the date of the termination of the relationship.  We hold that as a matter of construction the Tribunal erred in its approach to this letter and the effective date of termination was therefore 13 March 2003.

Affirmation

43.	We are in the territory of implication and not express affirmation.  It is not in dispute that there was repudiatory breach.  The context in which we approach our task is to look at the circumstances between the two dates and to see whether or not either the Tribunal reached a perverse decision, alternatively whether it correctly construed the authorities which we have cited above.

44.	In our judgment, it is important to bear in mind the following facts:

(a)	The Applicant was sick.
(b)	The sickness was caused in part by his unlawful treatment by the Respondent.
(c)	The Respondent accepted that he was off work because of his sickness.
(d)	It also accepted, for that reason, that he could not attend meetings and they would be postponed.
(e)	The purpose of the meeting was to vindicate the Applicant’s concerns: in simple terms, his whistle-blowing in this case.
(f)	The correspondence emanating from the Applicant makes clear that he is seeking some change in the position; that is, something should be done about Mr Powell and his grievance should be properly aired.
(g)	Although his treatment on 9 January was a one-off, there was no indication to him as to how long this arrangement might last, or that it was for one week only.

45.	The Tribunal decided that there was affirmation because the Applicant had delayed for 3 months, was sending in sick notes and receiving sick pay.  Our adjustment of the date of termination to 13 March does not affect the substance of that decision.  The difference between 5 April and 13 March is probably not significant, but if anything is in the Applicant’s favour.

46.	We are therefore concerned with what occurred during this period.  The Tribunal correctly directed itself that mere delay:

“…especially when the employee is off sick is not necessarily to be taken as affirming the contract.  (W E Cox Toner [(International) Ltd v Crook [1981] IRLR 443] case).”

The Tribunal came to the conclusion that he must be taken to have affirmed the contract.  That, it seems to us, with respect, is a failure to apply the authorities we have cited above.  As W E Cox Toner makes clear, mere delay is neutral.  There requires to be some express or implied event indicating affirmation.

47.	Secondly, as is clear from Bashir, the sending in of sick notes merely affirms the existence of a contract.  In a case where there is a dispute about management’s imposition of a new regime, staying away from work will mean the parties do not have to work together.  In addition, affirmation of the existence of a contract does not mean acceptance of the new regime demanded by management – in Bashir’s case reduction from supervisory to labourer status; in our case sending the Applicant from his Assistant Manager duties to work in the kitchen.

48.	It is true that Bashir is regarded by the EAT itself as being a special case, but it must be borne in mind that in our case the Applicant’s illness was in part contributed to by the events caused by the Respondent.  His absence from work causing a delay was due to sickness and is properly analysed as really one event; that is, the delay was caused by sickness.  Delay, we know, is not in itself capable of being affirmation, nor (see Bashir) is the acceptance of sick pay, particularly when sick pay under the old and the new regime is the same.

49.	The rupture of the relationship of trust and confidence remained.  The Applicant continued to protest through his correspondence about what had happened to him and what would be likely to happen to Joe Powell who was, as far as the Applicant could see, continuing to be his manager.  Although the Respondent was happy to discuss these matters up to 13 March, the Applicant was unwell and could not present the grievance.

50.	We take that view as a matter of construction of the authorities.  We have also considered carefully the approach of the EAT in Wedgewood.  Although our case is not said to be of a person who is seriously ill, it is clear from the evidence in the case that the Applicant was not well enough to attend any of the meetings properly set up by management and further that management accepted that position by postponing them.

51.	In those circumstances, it appears to us that the Tribunal has added a neutral factor (delay) to another neutral factor (claim and acceptance of sick pay, supported by sick notes) and determined that those factors together constitute affirmation.  This we hold to be an error.  Two neutral factors cannot add up to a positive factor defeating the Applicant’s claim.

52.	We take that view as a matter of construction of the authorities.  We have also considered carefully the approach of the EAT in Wedgewood.  Although our case is not said to be of a person who is seriously ill, it is clear from the evidence in the case that the Applicant was not well enough to attend any of the meetings properly set up by management and further that management accepted that position by postponing them.

53.	We also take the view that we have taken against the background of the protection given to “whistle-blowers”.  The reaction of this manager, to humiliate the Applicant, was bound to cause an effect upon the Applicant’s health.  This legislation is there to protect those people who raise issues of concern and which are acknowledged to be in the public interest.  It would be an odd result if an employee who raised an issue were to find himself or herself dismissed, even constructively dismissed.  Public policy is to protect and take a liberal view of employees who raise these issues and who pass the thresholds in Part IVA of the Employment Rights Act 1996 entitling them to claim that they are legitimate whistle-blowers.

54.	For those reasons, therefore, we accept the arguments of the Applicant that he did not affirm the contract and was constructively dismissed unfairly.  Having discussed disposal with Counsel, we remit this to the same Employment Tribunal for a decision on remedy.  It was submitted that that would be unnecessary because in Devine v Designer Flowers Wholesale Florist Sundries Ltd [1993] IRLR 517 it appears that there should be no discounting of an award for unfair dismissal by reason of the illness of the Applicant.  On behalf of the Respondent it was contended that the arithmetic which the Employment Tribunal had applied was not so simple.  The Tribunal had reduced by ⅔ the award for loss of wages because the Applicant could attribute his loss to only one of three detriments which he advanced and which were upheld.  However, in paragraph 23 (viii) the Tribunal accepted the admission by the Applicant that his incapacities had been caused by other factors as well.

55.	It is not an easy argument to resolve at this stage of the proceedings.  We have been invited in engaging terms by Mr de Marco to take a rough and ready approach given his client’s conciliatory approach and wish to avoid a further hearing.  However, we accept Mr Ohringer’s imprecation that we are a court of law and must do things analytically and judicially, even if the effect is going to be that the matter has to go back to the Tribunal.  But we earnestly hope that the parties can reach terms of settlement recognising that there is force in both of the arguments which we have heard in very brief form.

56.	The appeal is allowed.  We remit it to the same Tribunal for remedy on unfair dismissal.