United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S OWEN (of Counsel) Messrs Keppe Shaw Solicitors 16 St Michael Street Brecon Powys LD3 9AB
For the Respondents	MS E MELVILLE (of Counsel) Mr Duncan Forbes Solicitor Druid's Altar Llangenny Crickhowell Powys NP8 1HD


 


JUDGE PETER CLARK: This is an appeal by the Applicant, Josephine Adams, against the remedies decision of an Industrial Tribunal sitting at Hereford on 3 November 1997, following an earlier liability decision upholding her complaint of unfair dismissal against her former employer, the Respondent, Radnorshire Women's Aid.

The Facts

The Appellant commenced employment with the Respondent, a registered charity, as a Refuge Worker on 9 May 1990.

On 7 September 1994, in the course of her duties, she accompanied a person to Chester Crown Court. She claimed expenses of £93.28 for the trip from the Crown Prosecution Service (CPS). For that purpose she was required to complete a Witness Expenses Form. Section C of that form was a certification by her employer that she was absent from work and lost earnings that day. The Appellant completed that certificate herself and signed it in the name of Mrs Owens (an employee of the Respondent who dealt with financial matters). There was a conflict between the Appellant and Mrs Owens as to whether the latter gave the former authority to do so. Ultimately, the Industrial Tribunal resolved that conflict in favour of Mrs Owens' version.

The Appellant submitted a claim for expenses incurred during September 1994 to the Respondent, including a claim in respect of £73.82 relating to the journey to Chester on 7 September. She did not mention her claim in respect of the same journey made to the CPS. Her October expenses claim similarly did not mention or give credit for the CPS expenses claim, by then paid.

In November 1994 she received a first final written warning from the Respondent for reasons unconnected with the expenses claims. Against that warning she appealed.

On 12 December 1994 Mrs Owens wrote a letter of complaint to the Respondent concerning the use of her name on the CPS expenses claim, and then complained about the matter to the Police on 20 December 1994. On 12 January 1995 the Appellant was arrested. On 16 May the Police informed her that no further criminal action would be taken.

Meanwhile, on 23 December 1994 Ms Whittle of the Respondent wrote to the Appellant stating that the Respondent wished to discuss her CPS claim. She was requested to attend a disciplinary meeting on 5 January 1995. That interview was then postponed until 12 January to enable the Appellant to be represented by a full-time union officer. As a result of her arrest on that day the interview was further postponed to 23 January. On that day the Appellant produced a medical certificate and the disciplinary hearing was put over once more, this time until 9 February.

On 26 January the Appellant gave one month's notice of resignation from the employment by a letter of that date to the Respondent. With that letter she enclosed her expenses claim for the three months November 1994 to January 1995, giving credit for the sum of £93.28 which she had received from the CPS.

On 1 February at a meeting the Respondent decided not to accept her resignation but to proceed to the disciplinary hearing due to be held on 9 February.

That disciplinary hearing went ahead on that date in the absence of the Appellant. It was held by Ms Whittle and Miss Paris in substitution for Ms Roberts who had been originally authorised to make up the disciplinary panel with Ms Whittle.

The panel found that the Appellant was guilty of gross misconduct on the grounds that she had dishonestly claimed expenses from the CPS with no intention of paying it back to the Respondent. She was summarily dismissed.

On 22 February 1995 she presented her complaint of unfair dismissal.

The Liability Decision

The hearing on liability occupied a total of 12 days spread between 22 July 1996 and 24 February 1997. The Industrial Tribunal promulgated its decision on liability with extended reasons on 27 March 1997.

The Tribunal found that the dismissal was unfair, both procedurally and substantively in that although they found as a fact that the Appellant did not tell Mrs Owens that she had signed the CPS form in her name, technically her claim to the CPS was not a dishonest one. However, the Tribunal found that the Appellant had no intention of repaying that money to the Respondent, from whom she claimed and obtained expenses for the Chester trip. The Tribunal went on to find that she had contributed to her dismissal to the extent of 70 percent.

It has to be said that the Tribunal's approach to the issue of liability is capable of challenge in law. However, no appeal was launched against that decision by the Respondent in time. An attempt was made to re-open the issue of liability by way of cross-appeal in the instant appeal. However, the current appeal is against the remedies decision only, and by order of the Registrar dated 6 May 1998 the Respondent's application for an extension of time to file a cross-appeal against the liability decision was refused. There is no appeal against that order. Accordingly, we proceed on the basis of the Tribunal's findings and conclusions, as expressed in the liability decision reasons.

The Remedies Decision

Following a remedies hearing held on 3 November 1997 the Tribunal promulgated their remedies decision with full reasons on 7 November 1997.

By a majority the Tribunal concluded that by her letter of 26 January 1995 the Appellant showed no intention to work for the Respondent beyond the date of expiration of her notice given by that letter. She obviously intended to terminate her employment as from 25 February which at that time was irrespective of any disciplinary process against her and any subsequent decision of an Industrial Tribunal. Accordingly her loss of wages claim was limited to the period from dismissal, 10 February, until date of expiry of her notice, 25 February 1995.

She was awarded a basic award, less 70 percent for contribution, and a compensatory award consisting of her net loss of earnings from 10 - 25 February 1995 plus £200 for loss of statutory rights, the total again to be reduced by 70 percent. The final award was £468.18.

The Appeal

Ms Owen advances the principal grounds of appeal under three heads: estoppel, causation and constructive dismissal. It is convenient to deal with those submissions in reverse order.

Constructive Dismissal

The proposition of law which Ms Own advances under this head is as follows; where an employee resigns on notice in circumstances which would amount to constructive unfair dismissal, for example, in response to the employer's repudiatory breach of the implied term of mutual trust and confidence to be found in every contract of employment, and where during the notice period the employer unfairly, both procedurally and substantively, dismisses the employee without notice, it cannot be right that compensation for loss of earnings arising from the actual unfair dismissal is limited to the period of notice originally given by the employee.

We accept that proposition, as a matter of law; indeed it is not challenged by Ms Melville for the Respondent. The question is whether that proposition may properly be applied to the facts as found by the Tribunal in this case.

First we should deal with the question as to whether the Appellant would have left on 25 February even had she not been dismissed by the Respondent on 10 February. Before the Industrial Tribunal Ms Own relied on the evidence of Ms Whittle that had the Appellant not been dismissed by the Respondent, as a result of the disciplinary hearing which took place on 9 February, she would have been allowed to decide what she wanted to do. We interpret that to mean that had she wished to remain in employment she would not have been held to her notice of resignation by the Respondent. However, the Tribunal majority found that the Appellant would have left on 25 February in any event. It therefore seems to us that we are bound by that finding. It cannot be characterised as perverse.

Therefore the question remains, given that the Appellant would have left at the end of her notice period on 25 February could she then have maintained a claim of unfair constructive dismissal.

Ms Owen relies upon the terms of her resignation letter which we have read, the Appellant's evidence that she did not attend for the disciplinary hearing because she thought she would be sacked anyway, and the history of disciplinary proceedings against her, including the Respondent's failure to hear her appeal against the final written warning before holding the disciplinary hearing on 9 February in relation to the expenses matter leading to her summary dismissal. Ms Melville relies on the Tribunal's findings at the liability stage that the Appellant had no intention of paying the expenses monies received from CPS to the Respondent had it not been for the complaint by Mrs Owens, leading to repayment by the Appellant on 26 January 1995.

In our judgment the submission by Ms Owen fails on the facts. If she took the point below, and it is not expressly recorded by the Industrial Tribunal, the majority appear not to have accepted it; the minority member does not deal with it; she thought that the Appellant had no intention to resign. Accordingly there is no finding that but for her dismissal on 10 February the Appellant would have left in circumstances amounting to constructive unfair dismissal. In the absence of such a finding, and it cannot be said on the primary facts as found that such a finding was inevitable or even necessarily likely, this submission cannot succeed.

Causation

The submission here is that due to the stigma of her unfair dismissal for dishonesty, which was not corrected until the Tribunal's finding of unfair dismissal in the liability decision promulgated on 27 March 1997, the Appellant was unable to find employment locally. That was the loss which flowed from the unfair dismissal, as the minority member found. In our view that argument, which would be relevant to meet any contention by the Respondent that she had failed to mitigate her loss, cannot overcome the finding that the Appellant's employment would have ended by her own notice on 25 February 1995.

Estoppel

Ms Owen has reminded us of the necessary ingredients for an estoppel to arise at law. She submits that having refused to accept the Appellant's resignation at the meeting held on 1 February 1995, the Respondent cannot now rely on the letter of resignation to limit their liability to compensate the Appellant for the unfair dismissal.

We think that that argument fails; first, because the Appellant had not altered her position in reliance on the Respondent's refusal to accept her resignation and so suffered any prejudice, but secondly because no question of estoppel arises. The only question is whether the Appellant would have ceased her employment on 25 February 1995 by voluntary, as opposed to forced resignation. The majority of the Tribunal found that she would have done. Accordingly they upheld the submission made on behalf of the Respondent that the cut-off date for compensation for loss of earnings from the Appellant's employment with the Respondent was 25 February. In our judgment they were entitled to so find.

In these circumstances we reject Ms Owen's attack on the principal finding of the majority in the remedies decision. It follows that it is unnecessary to consider the Industrial Tribunal's alternative finding, by a majority at paragraph 9 of the remedies decision. Accordingly we shall dismiss this appeal.