Lewis v. Motorworld Garages Ltd. Court of Appeal CA (Civ Div) Ackner, Neill and Glidewell L.JJ. ACKNER L.J. 1 August. This is an appeal from the decision of the Employment Appeal Tribunal presided over by Balcombe J., given on 23 March 1984, dismissing an appeal from the industrial tribunal's decision given on 13 June 1983. Mr. Lewis, the appellant employee, has spent all his life in the motor car business. From September 1979 until September 1981 he was employed as an after- sales manager of Motorworld Garages Ltd., the respondent to this appeal. He carried out his duties satisfactorily, but in the late autumn of 1981 there was a reshuffle of managerial and director posts, with the result that the employee, without any warning, was demoted to the position of service manager. He thus lost the use of an office to himself, he was given a smaller car for business use, his responsibilities were reduced, his salary structure was changed and he did not receive the increase in salary which other people received at the beginning of 1982. The industrial tribunal held, and the Employment Appeal Tribunal accepted, that this unilateral demotion was a breach by the employer of a fundamental term of the employee's contract of employment which would have entitled him, had he so desired, to accept that wrongful repudiation, and treat his contract as at an end. That he did not do so and thereby elected to affirm his altered contract of employment is not disputed on his behalf by Mr. Barnes. On 22 December 1981, that is the month following the demotion, Mr. Nochar, a director of the employer, who had himself been, prior to the employee's appointment, the after-sales manager, wrote a four page memorandum setting out a number of criticisms of the employee, concluding with a paragraph which read: "The complaints I have listed show major failings in your ability to perform as a service manager. I must now ask you to give me your assurance that you will correct the matter immediately as I cannot permit this unsatisfactory situation to continue." On 30 December Mr. Vickers, the general manager and a director of the employer, signed a memorandum that the employee's salary from 1 January 1982 would be £ 7,224 per annum plus 2 1/2 per cent. On the service and self-drive departments. This represented a reduction, because he had previously had commission on the sales of parts as well. As a result of this being explained, a further memorandum was issued that the employee's salary would be £8,051 plus 2 1/2 per cent. on service and self-drive departments. At that time, as I previously indicated, almost all the staff received a rise, but the employee did not. The employee replied by return of post, in considerable detail. On 16 April 1982 Mr. Nochar again wrote to the employee, in general complaining about his paperwork, and concluded with the words: "These problems are serious and immediate action by you must take place and unless this happens your continued employment with the company must be questioned." On 30 June 1982 Mr. Nochar wrote yet another memorandum, referring to his previous memoranda of 16 April 1982 and 22 December 1981 referred to above, and saying: "I have to record my further dissatisfaction with your management of the service department." He recognised an improvement in the warranty claims, but complained about the employee's handling of the case of Mrs. White's Porsche. He said that there had been misleading information about Mr. Mayhew's Audi, and that there had been a failure to progress the paper work for servicing Mr. Muir's car. There were four other complaints, and Mr. Nochar ended: "Whilst you have endeavoured to correct some of the previous problems and you personally work hard, you are not managing your department as a professional service manager described in your job description. I must advise you that unless an immediate improvement is shown in your work then your employment will be terminated." The employee replied on 6 July, saying that he was puzzled that none of the occurrences referred to by Mr. Nochar had been the subject of discussion beforehand. He gave detailed explanations of the matters which Mr. Nochar had complained about, and concluded: "As I am now working under some form of duress, I must ask that you let me have in writing exactly what improvements you wish to see and over what time span and, if possible, interim reports so that I know whether I am improving and approaching the standard you set. I shall regard this as a challenge with serious consequences in the event of failure." Mr. Nochar wrote another memorandum on 2 August, commenting on the employee's memorandum of 6 July. He went on to say that there were several instances which had given him further doubts about the employee's capability. There were four instances as to which Mr. Nochar was dissatisfied, and he ended his letter with the words: "I now regret to inform you that having discussed your various failures as a service manager with my fellow directors, they have instructed me to give you a final warning and unless you can show in the next few weeks that you are capable of controlling your staff and looking after the company's customers in a proper manner befitting a service manager we shall have no alternative than to terminate your employment." On 3 August the employee wrote to the directors: "Further to your memorandum of 2 August, I would like to record that I entirely refute all the allegations contained in it. I very much regret that since your memorandum in February this year, I have been obliged to consider my position with the company very carefully, and I am forced to the conclusion that in view of your lack of confidence in me that my future must lie elsewhere. I am, therefore, tendering my resignation, which should bring my termination of employment on Tuesday 31 August. The demotion and exclusion from wage consideration imposed upon me at the beginning of this year were matters of great significance, which I consider entirely unjustified, and I would point to the decision regarding the promotion of others whose quality of management has subsequently proved to be less than desirable. The demotion was dictated to me and presented without opportunity for discussion. I have since discovered that it was finalised and confirmed with other members of staff, some of them my subordinates, before I was informed. "It seems to me that for reasons unknown the company is bent on victimising me and I obviously do not enjoy the force and support of senior management of the company. I do not accept the validity or truth of the criticisms in your recent memoranda, upon which I have frequently sought clarification and guidance. I am particularly concerned that the memoranda do not record the facts accurately. In the circumstances, I have no alternative but to resign and to seek such action as my solicitors advise. I thank the directors of Motorworld Garages for the experience, if not the opportunity to further my career in the motor trade." The employee subsequently applied to the industrial tribunal alleging that he had been constructively dismissed by the employer. It is common ground that the relevant section is section 55(2) of the Employment Protection (Consolidation) Act 1978, the material parts of which read: "an employee shall be treated as dismissed by his employer if, but only if ... (c) the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct." It is further common ground that the onus was on the employee to establish that the conduct of the employer was sufficiently serious to entitle him to leave. The employee's case, both before the industrial tribunal and the appeal tribunal, was that the employer had breached the implied term of his contract of employment that it should not undermine the relationship of trust and confidence which ought to subsist between employer and employee, and because of that breach he resigned. The reason for his leaving was the conduct of the employer between November 1981 and 2 August 1982, the letter of 2 August 1982 being "the last straw." The demotion, the loss of the use of an office, the reduction in pay, the absence of proper consultation all showed loss of confidence. The criticisms of the employee were not justified: they were nitpicking. The employee should have had the support of the employer in his different job and he did not get that support. The criticisms made of the employee were not sufficient to justify the threat of dismissal. In the first 43 paragraphs of their detailed reasons for dismissing the application, the industrial tribunal most helpfully sets out all the relevant facts, the case for the employer and the employer's arguments, and then the employee's case and arguments, all with great clarity. The tribunal's conclusions begin at paragraph 44, in which paragraph they record what is now accepted, that the demotion in November 1981 was a breach of contract entitling the employee then and there to resign, and his subsequent election to continue his employment. In paragraph 45 the tribunal refers to the change in the wage structure in 1982, which was also a breach of contract, but which did not cause him to resign. The next matter that fell to be considered was whether the criticisms made after January 1982 were or were not justified. Paragraph 46 deals with the criticisms in these terms: "There were a number of subsequent criticisms. We do not think that many of them were of great substance. The manner of the criticisms was unsatisfactory because there was no proper discussion before the criticisms were put into writing. In particular the criticisms concerning Mr. Lewis' handling of a customer, Mr. Dawes, is not wholly justified; the conduct of Mr. Dawes himself left much to be desired. There was no evidence that the employers did not believe in the validity of their criticisms. It is curious that Mr. Lewis does not appear at any time to have said in effect, 'Get off my back."' Mr. Foskett for the employer contended that this paragraph does not contain the findings of fact which the employee needs, namely, that the criticisms were not justified. The very statement, "We do not think that many of them were of great substance," by implication suggests that some of the criticisms may well have been. The manner of the criticisms would not, in itself, make the criticisms unjustified, and the particular example which the employer relies upon as highlighting the lack of justification is contained in a communication to him of 22 December 1981, which is in the period before he had elected to remain in the employer's employment despite the change in the wage structure, and is therefore irrelevant. The finding that there was no evidence that the employer did not believe in the validity of its criticism nullifies any suggestion of bad faith on its part. Mr. Foskett therefore submits that there is no finding of any breaches of the implied term of trust and confidence and therefore no wrongful course of conduct after the employee's election to remain in the employer's employment, which the employee must be able to set up to justify his resignation in August. This, at first sight, appeared to be a formidable submission, but in paragraph 51 the industrial tribunal states: "It is the question of delay which we have found so difficult in the present case." Further, in the final paragraph, paragraph 55, they state: "We have had great difficulty in deciding this case, but in the final analysis, the burden of proof of dismissal rests upon the [employee]. We are not satisfied that he had discharged the burden of proving that he was constructively dismissed." If, in paragraph 46, referred to above, the industrial tribunal were making the finding that the criticisms were justified, then, contends Mr. Barnes, such a finding would simply dispose of the application. There would be no need for the subsequent paragraphs, the subject matter of delay would not have caused the tribunal the concern which it so obviously did, and the final paragraph which I have quoted would be wholly inapplicable. I am bound to say that in the light of these subsequent paragraphs, I find great difficulty in reaching any firm conclusion as to whether or not the tribunal reach any firm decision as to whether the criticisms contained in the memoranda of June and August were or were not justifiable. There are, however, further difficulties to be encountered in ascertaining what the tribunal did in fact decide. In paragraph 51 the letters of 16 April and 30 June are referred to, and this is followed by the sentences, "He might have resigned after each of those letters, but he did not do so," and, "There were at least four occasions when Mr. Lewis might have resigned but did not do so." Mr. Barnes urges that in making these statements the tribunal were holding that the employee would have been legally justified in leaving after each of those letters, because each constituted a repudiatory breach. But in the very next paragraph, paragraph 52, the tribunal poses to themselves for subsequent resolution the question, "Can they [the subsequent complaints], separately ..., amount to breaches of the implied term -- the trust and confidence term?" To my mind this would seem to indicate that in paragraph 52 it had made no such finding. The appeal tribunal did not read paragraph 51 in the manner submitted by Mr. Barnes. It said: "In our judgment, what the industrial tribunal was there saying was, 'We are looking at the question of delay which we find difficult.' The employee's case is that he was entitled to resign on each of these occasions. Assuming that to be true, he did not do so and, as they found eventually, the delay was such that he had not accepted the repudiation but had elected, effectively, to affirm the contract." That was not the employee's case, and this is apparent by the following statement in paragraph 51 of the industrial tribunal's reasons: "Mr. Barnes has argued that the final warning of 2 August was the last straw, which made it clear to him that the relationship of trust and confidence no longer existed." Mr. Barnes was accordingly not contending that each of the memoranda or letters of criticism in 1982 constituted repudiatory breaches. On the contrary, he was seeking to accumulate the breaches to found the submission that the totality of the wrongful course of conduct entitled the employee to claim that the employer had evinced an intention no longer to be found by the contract of employment. Again, I can find no clear finding of fact. There are, however, yet further difficulties and these raise questions of law. In paragraph 52 the industrial tribunal states: "There were two breaches of an express term of the contract -- the demotion and the threat of loss of pay. These were in November 1981 and January 1982. We think that his delay in resigning precludes Mr. Lewis from relying on these." Mr. Barnes submits that this discloses an error of law. At the very least the employee was entitled to have the industrial tribunal consider those breaches as part of the background material to assist in the proper evaluation of the employer's subsequent conduct. This is accepted by Mr. Foskett. Moreover, in my judgment, if the industrial tribunal had found, and again there is an absence of any clear finding, that the two breaches or either of them were also breaches of the implied term -- the trust and confidence term -- then although they had not been relied upon asrepudiatory breaches they could still be added to any other breaches of the implied term in order to support an allegation that there had been a course of conduct which amounted to a wrongful repudiation by the employer. However, Mr. Foskett submits that the industrial tribunal did not exclude from their consideration, when evaluating the employer's subsequent conduct, the two breaches of the express terms of the contract, because in paragraph 54 they state: "Looking at Mr. Lewis's case as a whole, we do not think the conduct of the [employer] was such as to amount to repudiatory breach." Again, I fear that the position is far from clear. Finally, having stated in the penultimate sentence of paragraph 54 their view that the conduct of the employer was not such as to amount to a repudiatory breach, they concluded that paragraph by stating: "Their style was unpleasant but they neither intended to repudiate the contract nor could they reasonably believe that their conduct would be accepted as repudiatory." I take that final sentence to be the justification for their conclusion that the employer's conduct was not repudiatory. In so doing, however, the industrial tribunal was clearly applying the wrong test. The employer's conduct was repudiatory if, viewed objectively, it evinced an intention no longer to be bound by the contract. Its intentions and its reasonable belief could not determine that issue. Despite the obvious and praiseworthy care which the industrial tribunal took in giving its reasons I cannot avoid concluding that (1) there is no clear finding that the complaints made after January 1982 were unjustified; (2) there are grounds for inferring that the tribunal did not fully appreciate that it was the employee's submission that while the particular incident which caused him to leave might in itself be insufficient to justify his taking that action, it was the last straw in a course of conduct which, when viewed in its totality, amounted to a wrongful repudiation of the contract which entitled the employee to leave and claim that he had been constructively dismissed; (3) the tribunal appears to have excluded, when considering the alleged course of wrongful conduct, the two breaches of the express terms of the contract and failed to decide whether such breaches, as might well be the case, amounted themselves to breaches of the implied term as to trust and confidence; and (4) the tribunal had, in paragraph 54, applied the wrong test when deciding that the conduct of the employer was not such as to amount to a repudiatory breach. In these circumstances I am unable to agree with the appeal tribunal that there is no error of law manifest on the findings of the industrial tribunal, nor am I able to agree with its holding that the industrial tribunal decided in favour of the employer on the simple factual basis: "that by not leaving the employment of the employer at an earlier stage the employee had not accepted any repudiatory breach there may have been." Such a finding was not an answer to the employee's case, namely that there had been a course of conduct involving breaches of the implied term which when aggregated amounted to a repudiatory breach of the contract. I wouldtherefore allow this appeal and order that the employee's application be remitted to a fresh industrial tribunal for a full re-hearing. NEILL L.J. The employer, Motorworld Garages Ltd., is a subsidiary company in the Oxford Garage Group. In September 1979 the employee, Mr. Barry Lewis, joined the company as the after-sales manager. In August 1982, nearly three years later, he resigned, giving a month's notice. He claimed that he had been constructively dismissed. He applied to an industrial tribunal in Reading for a finding that his dismissal was unfair. The case was heard over a period of three days in March and April 1983. By a reserved decision dated 13 June 1983 the industrial tribunal held unanimously that the employee's application failed. The reasons for the decision were set out in 55 paragraphs. The last paragraph was in these terms: "We have had great difficulty in deciding this case, but in the final analysis, the burden of proof of dismissal rests upon the [employee]. We are not satisfied that he was discharged the burden of proving that he was constructively dismissed. The application fails." The employee appealed to the appeal tribunal. In a judgment delivered by Balcombe J. on 23 March 1984 the appeal tribunal dismissed his appeal. He now appeals to this court. It is right that at the outset I should remind myself of the heavy burden which rests on an appellant who seeks to upset a finding of an industrial tribunal in a case such as the present. An appeal from an industrial tribunal lies only on a question of law: see section 136(1) of the Employment Protection (Consolidation) Act 1978. Moreover where an employee complains that he has been constructively dismissed, it is necessary for him to prove that he terminated the contract in circumstances such that he was entitled to terminate it without notice by reason of the employer's conduct: see section 55(2) of the Act of 1978. The conduct must therefore be repudiatory and sufficiently serious to enable the employee to leave at once. On the other hand it is now established that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of the contract of employment that the employer will not, without reasonable and proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see Woods v. W. M. Car Services (Peterborough) Ltd.  I.C.R. 666 in the Employment Appeal Tribunal. A history of the main events which took place between November 1981 when the employee was demoted and the letter of 2 August 1982 has already been given by Ackner L.J. I need not repeat it. I would, however, again underline, as did Ackner L.J. that both before the industrial tribunal and before the appeal tribunal the thrust of the employee's complaint was that there had been cumulative breaches of the implied term to which I have just made reference. The matter is set out clearly in paragraph 43 of the industrial tribunal's reasons under the heading "The applicant's arguments": "The [employer] breached the implied term that they should not undermine the relationship of trust and confidence which ought to subsist between employer and employee. Mr. Lewis resigned because the employers had breached that obligation. The reason for his leaving was the conduct of the employers between November 1981 and 2 August 1982. The letter of 2 August 1982, containing criticisms and a final warning, amounted to a last straw. The demotion, the loss of the use of an office, the reduction in pay, the absence of proper consultation, all showed loss of confidence. The criticisms of Mr. Lewis were not justified: they were nit-picking. Mr. Lewis should have had the support of the [employer] in his different job, and he did not get that support. The criticisms made of Mr. Lewis were not sufficient to justify the threat of dismissal." With this introduction I turn to the final 12 paragraphs of the industrial tribunal's reasons, which come under the heading "Conclusions." In paragraph 44 the tribunal referred to the demotion. In so far as this paragraph and the later reference to demotion in paragraph 52 dealt with the breach of an express term of the contract, no criticism can be made. By electing to continue to work the employee lost the right to complain of that demotion as constituting by itself a repudiatory breach. In paragraph 45 they referred to the change in the wage structure in January 1982. Again no criticism can be made of this paragraph or of the later reference to the same matter in paragraph 52 in so far as the change was a breach of an express term. But it will be remembered that in paragraph 43 both the demotion and the reduction in pay were relied on as instances of breaches of the implied term. I come next to paragraph 46. In this paragraph the tribunal referred to what they called "a number of subsequent criticisms." I understand this phrase as a compendious description of, inter alia, the letters of 22 December 1981 and 16 April, 30 June and 2 August 1982. Counsel for the employer placed great reliance on paragraph 46. He submitted that it either amounted to a finding that much of the criticism of the employee was justified or, failing that, that it did not amount to a finding, which was critical for the employee if he were to succeed, that the criticism was unjustified. Accordingly, said counsel for the employer, the case for the employee could not get off the ground because neither of the breaches of the express terms could be relied on as the contract had been subsequently affirmed and there was no finding of any breach, yet alone any repudiatory breach, after January 1982. At one stage in the course of the hearing I was attracted by this argument based on paragraph 46, just as I also saw very considerable force in Mr. Foskett's further argument based on the following sentence in paragraph 54, where the tribunal said: "Looking at Mr. Lewis's case as a whole, we do not think the conduct of the [employer] was such as to amount to repudiatory breach." But having read and re- read the closing paragraphs of the reasons, I have come to the conclusion that it is quite impossible to accept the simple solutions attractively proffered by Mr. Foskett. The opening sentences of paragraphs 51 and 55 show that the tribunal had difficulty in reaching a decision and the reference to "the question of delay" in paragraph 51 suggests that in the absence of any delay the tribunal might have reached a different conclusion. It is therefore necessary to try to determine the meaning and effect of paragraphs 51 to 54, though bearing in mind the important admonition that one must resist any temptation to construe the reasons strictly or to search for a point of law with a fine- tooth comb. Like Ackner and Glidewell L.JJ. I have found these paragraphs a source of difficulty and I remain uncertain as to what parts contain conclusions of the tribunal and what parts contain references to the case for the employee. But three matters appear to me to stand out. (1) In paragraph 52, I am unable to find any recognition of the fact that the employee was relying on, and was entitled to rely on, the demotion and the loss of pay as part of a series of events which cumulatively destroyed the relationship of confidence and trust. (2) In paragraph 53 the industrial tribunal seem to have treated the relationship of confidence and trust as having broken down completely by April 1982 so that no later acts could be relied on as further breaches of the implied term. With respect this approach seems to me to involve a misapprehension of the scope and importance of the implied term which continues to protect the employee throughout the period of the contract. (3) In paragraph 54 the tribunal said: "Looking at Mr. Lewis's case as a whole, we do not think the conduct of the [employer] was such as to amount to repudiatory breach." They then gave what appears to be their explanation for this statement, which was as follows: "Their style was unpleasant but they neither intended to repudiate the contract nor could they reasonably believe that their conduct would be accepted as repudiatory." But, in my view, this is an inadequate test by which to decide whether the employer's conduct amounted to a repudiatory breach. I refer again to section 55(2). The question is: did the employee terminate the contract in circumstances such that he was entitled to terminate it without notice by reason of the employer's conduct? In answering this question it is not sufficient to consider merely the intention of the employer and its reasonable belief as to the effect of its conduct. In these circumstances I am unable to escape the conclusion that the industrial tribunal misdirected themselves to a material extent. Accordingly I agree that this appeal should be allowed and I concur in the order which Ackner L.J. has proposed. GLIDEWELL L.J. The principles to be found in the relevant authorities can, I believe, be summarised as follows. (1) In order to prove that he has suffered constructive dismissal, an employee who leaves his employment must prove that he did so as the result of a breach of contract by his employer, which shows that the employer no longer intends to be bound by an essential term of the contract: see Western Excavating (E.C.C.) Ltd. v. Sharp  I.C.R. 221. (2) However, there are normally implied in a contract of employment mutual rights and obligations of trust and confidence. A breach of this implied term may justify the employee in leaving and claiming he has been constructively dismissed: see Post Office v. Roberts  I.R.L.R. 347 and Woods v. W. M. Car Services (Peterborough) Ltd.  I.C.R. 666, 670, per Browne-Wilkinson J. (3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (See Woods v. W. M. Car Services (Peterborough) Ltd.  I.C.R. 666.) This is the "last straw" situation. (4) The decision whether there has been a breach of contract by the employer so as to constitute constructive dismissal of the employee is one of mixed law and fact for the industrial tribunal. An appellate court, whether the Employment Appeal Tribunal or the Court of Appeal, may only overrule that decision if the industrial tribunal have misdirected themselves as to the relevant law or have made a finding of fact for which there is no supporting evidence or which no reasonable tribunal could make: see Pedersen v. Camden London Borough Council (Note)  I.C.R. 674 and Woods v. W. M. Car Services (Peterborough) Ltd.  I.C.R. 693 both in the Court of Appeal, applying the test laid down in Edwards v. Bairstow  A.C. 14. This case raises another issue of principle which, so far as I can ascertain, has not yet been considered by this court. If the employer is in breach of an express term of a contract of employment, of such seriousness that the employee would be justified in leaving and claiming constructive dismissal, but the employee does not leave and accepts the altered terms of employment; and if subsequently a series of actions by the employer might constitute together a breach of the implied obligation of trust and confidence; is the employee then entitled to treat the original action by the employer which was a breach of the express terms of the contract as a part -- the start -- of the series of actions which, taken together with the employer's other actions, might cumulatively amount to a breach of the implied terms? In my judgment the answer to this question is clearly "yes." It follows, in my judgment, that in the present case the industrial tribunal should have asked themselves the question whether the employer's treatment of the employee starting with the demotion in November 1981 and including the reduction in pay, the loss of the use of an office and the various memoranda of complaint in 1982, culminating in that of 2 August 1982, cumulatively constituted a breach of the implied obligation of trust and confidence of sufficient gravity to justify the employee in leaving his employment in August 1982 and claiming that he had been dismissed. Did the tribunal ask themselves this question, and if so how did they answer it? In so posing the question, I realise that I am, with respect, disagreeing with the approach of the appeal tribunal. At the beginning of their conclusions, in paragraphs 44 and 45 of their decision, the industrial tribunal found that the demotion in November 1981 and the change in wage structure were breaches of contract, and that the demotion would have entitled the employee to resign at once and claim constructive dismissal. Paragraph 46 starts: "There were a number of subsequent criticisms. We do not think that many of them were of great substance." Mr. Foskett submits that this is a finding of fact that the memoranda containing criticisms were not "of great substance" as breaches of contract, and thus could not justify the employee leaving his employment. I do not so interpret these two sentences. I believe they mean that not many of the criticisms were directed to matters of great consequence. If that is correct, it is another finding in favour of the employee. Paragraph 51 starts: "It is the question of delay which we have found so difficult in the present case," and the remainder of this paragraph and paragraphs 52 to 54 are apparently the reasoning which leads the tribunal to resolve their difficulty and conclude in paragraph 55 that they were not satisfied that the employee was constructively dismissed. In paragraph 51, the tribunal records Mr. Barnes' submission that the memorandum of 2 August 1982 was "the last straw." They decided that it was not sufficient to break the camel's back in words which, to my mind, makes it clear that they were not treating the effect of the various incidents as cumulative, but weighing each separately. In my view they were in error in this way. It is, however, paragraph 52 of the decision which, to my mind, shows that the industrial tribunal's approach was wrong. It reads: "There were two breaches of an express term of the contract -- the demotion and the threat of loss of pay. These were in November 1981 and January 1982. We think that his delay in resigning precludes Mr. Lewis from relying on these. The subsequent complaints against him did not constitute breaches of an express term. Can they, separately or cumulatively, amount to breaches of the implied term -- the trust and confidence term?" I read this as saying that when the employee did not resign following the demotion and the alteration in his pay structure, the effect of those breaches of contract was spent. They were not relevant to the question whether the employer was in breach of the obligation of trust and confidence. Only the subsequent complaints are to be considered as breaches of the implied term. In this the industrial tribunal to my mind was in error. Of course, as Mr. Foskett reminds us, the industrial tribunal said in paragraph 54: "Looking at Mr. Lewis's case as a whole, we do not think the conduct of the [employer] was such as to amount to repudiatory breach." This could be read as a clear answer to the question which I have said the tribunal should have asked themselves. But I do not think it was. I think it was a finding that the matters of which the employee complains after January 1982, not taking any account of the demotion and change in wages structure, were, looked at as a whole, not sufficient to amount to repudiatory breach. I say this for three reasons. First, to interpret it otherwise is to make this paragraph inconsistent with paragraph 52. Secondly, I read paragraph 54 as answering the second question posed at the end of paragraph 52 -- can "the subsequent complaints ... cumulatively amount to breaches of the implied term ...?" And thirdly, if the sentence in paragraph 54 is a clear finding in relation to the whole case, it is surprising that paragraph 55 starts: "We have had great difficulty in deciding this case ..." I therefore conclude that, in considering whether the implied term of trust and confidence had been breached, the industrial tribunal excluded consideration of material matters, namely, the continuing effect of the demotion and change in wage structure. This was an error of law within the principles of Edwards v. Bairstow  A.C. 14, such that this court can properly interfere with their decision. The task of deciding whether the employee had been constructively dismissed was not easy, and I have every sympathy with the industrial tribunal, but in the end the question which they asked themselves was, in my judgment, not the correct question, because it was too restricted. Since they have not asked the correct question, we do not know how they would have answered it. For these reasons I also agree that the appeal should be allowed and the case remitted to a new industrial tribunal. Appeal allowed with costs of appeal and interlocutory applications. Legal did taxation.