United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1134_95_3004

Appeal No. EAT/1134/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 30th April 1996

HIS HONOUR JUDGE PETER CLARK

MRS E HART

MRS M E SUNDERLAND JP

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T BUTLER          APPELLANT

GRANADA CONTRACT SERVICES LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR N VINEALL

(of Counsel)

Messrs McCarthy Robertson

Solicitors

Glenbrook House

11 Molesey Road

Hersham

Walton-on-Thames

Surrey KT12 4RH

For the Respondents MR C SAMEK

(of Counsel)

Messrs Davis Hanson

Solicitors

11-12 Southcombe Street

West Kensington

London W14 0RA


 


JUDGE CLARK: This is an appeal by Mr Butler against a unanimous decision of the London (South) Industrial Tribunal (Chairman: Mr G W Davis) following a hearing on 29th August 1995 that he had not been dismissed by his former employers Granada Contract Services Ltd. He alleged that he had been constructively dismissed within the meaning of Section 55(2)(c) of the Employment Protection (Consolidation) Act 1978. Extended reasons for that decision are dated 13th September 1995.

The material facts as found by the Industrial Tribunal are as follows. The appellant was employed by the respondents from 8th October 1992 until March 1994, finally as a supervisor at premises at St Peter's Hospital, Chertsey. He worked the 8 a.m. - 8 p.m. day shift.

On 3rd March 1994 a meeting took place between the appellant, Mr Wood, Deputy National Operations Manager and Mr Brown, the Human Resources Manager. It was held to discuss certain operational and contractual matters. It ended abruptly with the appellant telling Messrs Wood and Brown:

"At the end of the shift I'll no longer be working for you."

By this, the tribunal found, the appellant was resigning from the employment. He gave no notice. He then failed to attend for work.

Pausing there, both parties in their respective pleadings, forms IT1 and IT3, accepted that the contract of employment terminated on 3rd March 1994. That was not the finding of the Industrial Tribunal. It found that the effective date of termination was 18th March 1994. Which date is correct?

Where an employer repudiates the contract of employment it is open to the employee to accept the repudiation and leave the employment with or without notice. In the latter event the effective date of termination will be the date of acceptance of repudiation by the employee, that is when he quits the employment.

In this case, the Industrial Tribunal found as a fact in paragraph 3(aa) of their reasons that there had been no change in the appellant's terms and conditions as at 3rd March 1994. It follows, on that finding, that the employer was not in repudiatory breach at that date. Accordingly, it was the employee, the appellant who, was in repudiatory breach by resigning without notice. We see from Clause 17(b) of his Statement of Terms and Conditions of Employment that he was required to give one weeks notice of termination for each year of service, that is one week's notice. He did not do so.

The tribunal went on to find that the appellant withdrew his resignation tendered on 3rd March 1994. Is that a correct analysis in law?

It is well-established that contractual notice of termination, once given by the employee and accepted by the employer, cannot be unilaterally withdrawn. See Harris & Russell v Slingsby [1973] ICR 454, a decision of the National Industrial Relations Court consistent with the earlier case of Riordan v War Office [1959] 1 WLR 1046.

However, in our view, a notice of resignation given in breach of contract amounts to a repudiatory breach which requires acceptance by the employer before the contract is terminated. Until the breach is accepted, the employee may remedy the breach and the contract will continue. See Norwest Holst Group Administration Ltd v Harrison [1984] IRLR 419.

It is clear from the letter dated 6th March 1994 from Mr Brown to the appellant that here the respondent did not accept the resignation, or that the appellant had been dismissed (as the tribunal found).

Further communications followed, culminating in the appellant asking for a grievance meeting to be held. On 16th March 1994 Mr Wood wrote to the appellant confirming arrangements for a grievance hearing to be held at 1300 hours on Monday, 20th March 1994 at the hospital, to be followed by a disciplinary hearing to be held at the same venue on Wednesday, 22nd March 1994.

The appellant's response to that letter was to fax Mr Wood on 18th March 1994 a letter stating among other things:

"I must reiterate that I have no intention of returning to work under the conditions outlined in Mr Wood's letter dated 16 March, and must remind you that I was constructively dismissed on Friday 3 March."

The appellant did not thereafter attend either meeting, nor did he attend for work. It can easily be inferred that his resignation was accepted by the respondent on or after 18th March 1994; at the latest by the respondent's solicitors letter dated 16th May 1994.

Having set out the facts as they found them the tribunal record that at the close of the appellant's case, he having given evidence himself and called witnesses, a submission of no case to answer was made by Counsel for the respondents. The tribunal, mindful of the guidance of this appeal tribunal in Coral Squash Clubs v Matthews [1979] IRLR 390, upheld that submission. The respondents were not called on to lead evidence. The application was dismissed.

The tribunal's reasoning was that:

(1) there was no repudiatory breach by the employer prior to the appellant tendering his resignation on 3rd March 1994.

(2) the appellant withdrew that resignation by indicating his intention to return to work on 20th March 1994 and pursue his grievance.

(3) he resigned again on 18th March 1994 because the grievance hearing was to be held at the hospital and because Mr Johnston, his immediate manager, had put the phone down on him during a late night telephone call. Again, the tribunal found no breach of contract, let alone a repudiatory breach, prior to 18th March 1994 resignation. Accordingly there was no constructive dismissal.

In support of this appeal Mr Vineall on behalf of the appellant attacks the tribunal's approach on the following grounds:

First, he says that the tribunal ought to have put the respondents to its election in the same way as is required in the ordinary civil courts. That is to say, if you make a submission of no case to answer you will not then be permitted to call evidence if that submission fails.

In our judgment that contention runs contrary to the usual practice in Industrial Tribunal's which in turn stems from the guidance given by Sir John Arnold in the Employment Appeal Tribunal's judgment in Walker v Josiah Wedgwood & Sons [1978] ICR 744, at 753E. Such practice is repeated in Harvey on Industrial Relations and Employment Law Volume 4 paragraph T895. We see no reason to alter that practice. It follows that in adopting the usual practice it cannot be said that this tribunal erred in law.

Secondly, he submits that the tribunal conclusion that the appellant had failed to raise an arguable case of constructive dismissal at the close of his evidence was wrong in law.

We accept on the authority of cases such as Ridley v GEC [1978] 13 ITR 195, that in most cases the tribunal ought to hear evidence from both sides. This is particularly so in discrimination cases, where proof of discrimination will usually be a matter of inference. However, there are exceptions to that general rule. In our view, this case is one of those exceptions. The tribunal found that, on the evidence presented by the appellant, no breach of the contract of employment had been made out, let alone a repudiatory breach either at 3rd March 1994 or at 18th March 1994. We are satisfied that those were conclusions which it was entitled to reach. We remind ourselves that such questions are essentially questions of fact for the Industrial Tribunal, absent perversity, and we cannot say that those conclusions were perverse in this case. The appellant argued that he had suffered a demotion; on the evidence presented, the Industrial Tribunal rejected that contention. It was in our judgment entitled so to do.

In short, we can find nothing exceptionable in the Industrial Tribunal's approach to this case. The appeal must be dismissed.