United Kingdom Employment Appeal Tribunal

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Cite as: [1993] UKEAT 415_91_610, [1993] UKEAT 415_91_0610

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BAILII case number: [1993] UKEAT 415_91_0610

Appeal No. EAT/415/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6th October 1993

Before

HIS HONOUR JUDGE J HULL QC

MR D A C LAMBERT

MISS A MACKIE OBE

MISS D G ROBERTS APPELLANT

MESSRS F J & J FROST RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR F EVANS

(Of Counsel)

Messrs Patience Clarke

17 Swan Hill

Shrewsbury

Shropshire

SY1 1NG

For the Respondents MR D BROOK

(Counsel)

Messrs Wace Morgan

2 Belmont

Shrewsbury

SY1 1TD

JUDGE J HULL QC: In this case Miss Roberts was employed by the Respondents in their store for no less than 20 years, from 1st September 1970 until September 1990. Then there was an unhappy incident. On Monday 17th September Mr and Mrs Frost had been on holiday for a week and they were not due to come back until the Tuesday - the next day. Miss Roberts was in the shop, it was a sub-post office, and general store, and the Frosts had a son Stephen who lived nearby. On the Monday Stephen came into the store for various purposes and unhappily there was a bit of scene between Stephen and Miss Roberts. Miss Roberts was under a certain amount of pressure and she spoke, in the view of the Tribunal, rather rudely to Stephen. Stephen telephoned his father and then in the afternoon Mr and Mrs Frost arrived at their store and there was some discussion about the complaint which Stephen had made about Miss Roberts. There was a discussion between Miss Roberts and Mrs Frost and the Tribunal found that both these ladies were angry. Miss Roberts complained about the pressure she had been under and there was a remark which Miss Roberts may well have regarded as rather offensive to the effect that a relief worker, who was employed to relieve Miss Roberts from time to time, did the job with less hassle. That afternoon Miss Roberts went up to Mr Frost, when he was dealing with a customer, and said something like, "I'm off" or "Good day, here are the keys" and she left the keys of the shop which she normally retained. She was upset.

That evening the question was raised with a friend, by Miss Roberts, about what she should do and it was suggested that she should go and see her doctor. So, quite unbeknown to the Frosts, who had seen Miss Roberts take herself off, she did go to her doctor on the Wednesday. She did not contact the Frosts at all. The doctor sensibly said she should work things out with the employers, because he understood no doubt that there was this dispute which had led to the upset, he said he would see her the following week. She filled in a form SC1, which apparently is a sickness form in which the employee certifies herself unwell, and she sent it to Mr and Mrs Frost without any accompanying letter. That form did not arrive until the Saturday and it said that she was suffering from "stress".

All this time Mr and Mrs Frost were continuing running their shop; they had to apparently cut their holiday short, and Miss Roberts had removed her belongings. On the Friday, four days after the row, a Mrs Lewis telephoned Mr Frost about a vacancy she had heard of, that was of course Miss Roberts' job. Mr Frost asked her what this lady had heard about it, "who told you" and Mrs Lewis said "she was not going to tell". At any rate on the evening of Friday the Frosts, in effect, accepted the position that Miss Roberts was not going to return to them because they told Mrs Lewis she could start work with them as soon as she could. Incidentally, the Industrial Tribunal found that on that Friday, again of course without notifying the Frosts, Miss Roberts visited the job centre and that she looked at job advertisements. I suppose they found that relevant in the sense that she was thinking of taking some other job. Then, on the Saturday, this form, in which Miss Roberts had certified herself sick, arrived at the shop and that was the first indication that Miss Roberts regarded her employment as still being "on foot" so far as the Frosts were concerned. The Industrial Tribunal went on:

"On Tuesday 25 September, Miss Roberts went to the shop and handed in a medical certificate signed by her doctor. She asked Mr Frost for a meeting "on neutral grounds". Mr Frost said: `No'. The same day, a letter was sent to Miss Roberts dated 25 September which reads as follows:-"

it arrived on the 26 September, the Wednesday, in other words 9 days after the row.

"Dear Miss Roberts

When you walked out on Monday 17 September 1990 at 2.30 pm we assumed you had left our employment. You took your personal effects with you.

On Friday 21 September 1990 we were approached by someone who said they had heard we had a vacancy. We had received no word from you so we assumed you had left our employment.

This person was interviewed and taken on. Enclosed are your P45 and the money due to you. We wish you every success for the future."

On 28 September she asked for a meeting again, having received that letter, and she wrote:

"I feel sure that there has been a misunderstanding and I would appreciate a meeting with you on neutral grounds to discuss this matter as soon as possible."

but the Frosts did not reply.

The Tribunal, to whom she had complained that she had been unfairly dismissed, considered the matter and made the findings of fact which I have referred to. They sat on the 20 and 21 May 1991 and their decision is dated 6 June 1991.

Having reached those findings of fact they referred to a passage in "Harvey" and they considered the question whether, as it was contended, Miss Roberts had indeed resigned. They referred to a case which is cited in "Harvey", Martin v. Yeoman Aggregates Ltd [1983] ICR 34 and they said:

"The Employment Appeal Tribunal decision in Martin v. Yeoman Aggregates Ltd recognised that good industrial relations practice will permit the courts to accept a `speedy withdrawal' of words of dismissal or resignation from taking effect. We find however that, in the circumstances of this case, a reasonable listener hearing Miss Roberts say at 2.30 pm: `I'm off' or `Good day, there's the keys'. and knowing of the conversations between her and the Frosts would accept that she was leaving her job. We have no doubt that if she had made a `speedy response' to settle the misunderstanding (as she called it) she would have been able to withdraw her resignation. However, in our view, she waited too long. We find Miss Roberts resigned for her own reasons and therefore the application is dismissed."

and that was the finding of the Tribunal.

Of course, the word "resignation" has a number of meanings. A person may resign by giving lawful and proper notice under their contract so that their resignation has contractual force. They are entitled to take that step. They may, on the other hand, make an offer to go forthwith, or in a short while, to their employer "will you accept my resignation; I should like to leave tomorrow?" and then that is something which has to be accepted or rejected by the employer. It is an invitation by the employee to the employer to say that the contract can come to an end by consensual agreement. Or the employee may, as appears to have been the case here, without asking for any agreement or purporting to give any notice, simply say "I resign" and that is a repudiation of the contract. That seems to be what has happened here.

What is said, on behalf of Miss Roberts, is that such a repudiatory resignation, a resignation which is a breach of contract, requires, if it is to be effective, to be accepted by the employer. Reference is made to Gunton v. London Borough of Richmond-Upon-Thames [1980] IRLR 321 in which the Court of Appeal held that an employer's repudiatory dismissal of an employee, wrongful dismissal, had to be accepted by the employee if it was to be valid. Although, as the Court of Appeal said, it will be rare that an employee in those circumstances can obtain a decree of specific performance or other discretionary relief, nonetheless the contract continues unless he accepts the dismissal as terminating it. The decision in Gunton departed from much weighty authority which had gone before, but it has been followed in a number of cases; it has also been dissented from. It can only be said that it must remain a matter of doubt whether the Court of Appeal and the House of Lords will, in due course, decide finally that a repudiatory breach of contract by an employer, or an employee, has to be accepted by the other party as terminating the contract before it is effective to do so. What is clear is that any party who wishes to say "no, the employment continues" should do so swiftly, because the Courts are very ready to hold that if one party to this essentially personal relationship is saying "I will have no more of it, I dismiss you" or "I am resigning and going now" then it behoves the other party to say "I am not accepting that, I wish to go on drawing my salary and I shall present myself, as far as I can, to go on with my employment" or, so far as the employer is concerned to say "no, I am not accepting your resignation; I shall expect you to work again tomorrow". In Kwik-fit (GB) Ltd v. Lineham [1992] ICR 183, there was guidance given by this Tribunal, which may well amount to principles of law. In that case the Employment Appeal Tribunal held that an industrial tribunal had erred in law in finding that where an employee resigns in the heat of the moment, using unambiguous words or actions, there is an onus on the employer to seek to recoup the situation and to investigate the employee's true intention. There was no authority to support such a proposition and as a matter of sound management it placed too high a burden on the employers. Where words or actions of resignation are unambiguous an employer is entitled to treat them as such and accept the employee's repudiation of contract at once, unless there are special circumstances arising due to personality conflicts or individual characteristics, words spoken or actions expressed in temper or in the heat of the moment or under extreme pressure. Where special circumstances exist an employer should allow a reasonable period of time to elapse before accepting a resignation at its face value, during which facts may arise which cast doubt upon whether the resignation was really intended. If the employer does not investigate those facts it runs the risk that evidence may be forthcoming which indicates to the industrial tribunal that in the special circumstances an intention to resign was not the correct interpretation of the facts, judged objectively. Such a reasonable period of time is likely to be relatively short, such as a day or two.

Of course if an employee is upset, particularly a long serving employee like Miss Roberts, and purports to do something which might be taken as a resignation, in the heat of the moment, after a number of stressful incidents, the employer would do well to consider very carefully whether that should be accepted, or whether the right thing is to say "well, we must wait a day or two, go home, sort things out with yourself and then tell us if you really mean it". It may be desirable to have a conversation, if it is possible to hold a rational conversation, to see exactly what the employee does mean. Here, as I say, Miss Roberts did a good deal to suggest that she was taking herself off. Finally, she removed herself, and did not get in touch again. It is true that in fact she was consulting her doctor, or trying to consult her doctor, but she made no attempt to return; not the following day, nor even by Friday when Mrs Lewis rang up.

Mr Evans says that the Industrial Tribunal were wrong to treat this contract as having been brought to an end by resignation; it was, he says, still "on foot" and the circumstances were indeed exceptional. This was a case where this lady had spoken in heat and upset, she was under stress, and she wanted to see her doctor. It might have been open, says Mr Evans, to the employers to say "well, two or three days have elapsed and we accept it" but they did not, he said, they accepted the resignation when they wrote on the 25th September, the letter which I have already read. He says that letter was an acceptance of the resignation, but by then it was too late because they had already seen signs from Miss Roberts that she wished to continue in her employment and did not intend to resign, she had sent them one sick note, completed by herself, and she had taken another round. It was therefore too late to accept the resignation. He says, of course, that all that rests on the argument that that letter is a termination of the contract. Indeed, the date of the receipt of that letter was mentioned by the Industrial Tribunal as being the date of termination of the employment, they say that at the start of their judgment; and furthermore it was stated as the date of termination in the application by Miss Roberts to the Tribunal, and when the employers put in their Notice of Appearance they accepted the dates of employment which were alleged by her.

It appears to us that the first duty of this Industrial Tribunal was to decide what to make of the interviews on the Monday and, in particular, what to make of Miss Roberts saying that she was off and leaving the keys. They say that a reasonable listener, hearing Miss Roberts say at 2.30 pm "I'm off, Good day, here are the keys" would accept that she was leaving her job. That was a finding of fact which only the Tribunal which heard the evidence was entitled to make. It might be said that this was entirely said in a temper, not intended seriously, and with a long serving employee like this, the employer should have taken no notice of it except to say perhaps "go home and come back tomorrow when you are feeling better and we will chat about it then". But the Tribunal having heard the evidence had no doubt that a reasonable observer would say that that was an intimation that she was leaving her job, in other words, she wished to resign. She was not asking her employers "will you accept my resignation?" - she was saying in effect "I resign". The employers, it is true, made no enquiry, but then they were expecting Miss Roberts to come in and she did not; days elapsed. Eventually they were approached by what sounded like a useful successor to Miss Roberts on the Friday, and by that evening they had accepted that lady, the successor, as their new employee. Clearly at that stage they had accepted that Miss Roberts' contract was at an end. Up to that point they had heard nothing to contradict what the Tribunal found was the true sense of what was said and absolutely nothing to make them think that that might be withdrawn. When they did an act which was wholly inconsistent with Miss Roberts' continued employment that must be, in our view, an acceptance of Miss Roberts' repudiation of her contract when she said she was going to resign; either that or they were accepting it as an offer made by Miss Roberts which they could properly accept, but we all prefer the analysis which has been put forward by Mr Evans namely that this was a resignation, if it was a resignation, of a repudiatory sort which was something which required the employer to accept it in some way or other, before it could become effective. We think that the repudiation was accepted in the way which is often illustrated in the text books by doing an act which was inconsistent with the continued existence of the contract.

We do not think, looking at the letter of the 25th September, that that is an acceptance of the repudiation; on the contrary, in the context of the findings of fact which this Tribunal made, it appears to us that it is merely recording what has happened and, in the light of the two sick notes which have been delivered, saying what has happened in relation to Mrs Lewis. It may be that, on a strict analysis, although the repudiation had been accepted the contract, for some purposes at any rate, lingered on as is envisaged in the case of Robert Cort & Son Limited v. Charman [1981] IRLR 437 to which we were also referred. If so that letter was making matters quite plain, the contract is now at an end and here is your P45. However that may be we think that this Tribunal was entitled, as a question of fact, to decide that a resignation in unambiguous terms was made on the Monday; we think that the Tribunal was perfectly entitled to find that by the Friday that resignation had taken effect beyond recall, that is to say that the commonsense situation in which an over hasty employee can say "I did not really mean that and I would like to take it back" was past, the time for further enquiries was past, and it was clear to a reasonable employer in the Frosts' position that the contract was at an end. Their employee had not returned to them and they could therefore take on, and should take on, in their own interest, another employee. That is exactly what they did do. In those circumstances we are unable in spite of the ingenious and careful arguments which have been addressed to us, to find any error of law in the findings of this Tribunal and we remind ourselves that we have no power whatever to intervene on questions of fact, nor have we been invited to. It was the duty of this Industrial Tribunal to assess the witnesses and say what they made of this. They reached the decision that here there was a resignation and that resignation became effective by the Friday at the latest. In those circumstances, whether or not the contract lingered on for some purposes the resignation could not be recalled and there had, on any view, been no dismissal and therefore no unfairness.

We are obliged to dismiss the appeal.