United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr W Diamond Consultant Instructed by Penisula Business Services Ltd Stamford House 361-365 Chapel Street Manchester M3 5JY


 


MR JUSTICE LINDSAY: We shall give a brief Judgment in this matter, which is a correlative of the immediately preceding case. The immediately preceding case concerned the hearing Mrs J Panter -v- Swan (Worthing) Ltd and was concerned with Mrs Panter's Appeal. This is an Appeal by Swan (Worthing) Ltd, which we have at the preliminary stage.

Mrs Panter successfully claimed for unfair dismissal on the grounds of constructive dismissal. She wrote a letter of resignation that says this:

"Dear Nick & Terry

Due to another bout of illness, and after careful consideration I have decided to give up working. It has been a difficult decision but one I feel I must take. In order that you will not be stuck I am happy to give a month's notice as at today.

Yours sincerely

J Panter"

Not, one might think, without knowing more of the surrounding circumstances, a letter of an employee who, reacting to a fundamental breach of contract, feels so aggrieved at the breach that she has to leave employment. There is no mention of any grievance about work. The trigger for her leaving would seem to be her renewed illness. She is proposing not to give up employment at Swans but, it seems, to give up working, that is to say working altogether. She need not have given more than a week's notice, but is happy to give a month's. And "Dear Nick & Terry" and "Yours sincerely" are not perhaps the most common forms of response to a fundamental breach. Moreover, there is no apparent "last straw" that has caused the camel's back to be broken. It is such an argument that the Notice of Appeal raises. It says that the Employment Tribunal erred in law:

"In holding, contrary to the decision of the Employment Appeal Tribunal that a letter saying "Due to another bout of illness and after careful consideration I have decided to give up working" was in some way communicating an intention to leave on account of the Employer's breach of contract and further, that it did not communicate some other reason for leaving."

The Employment Tribunal did consider this particular argument. What they say is:

"What Mr O'Brien intended was that if one looked at the letter of resignation it mentions illness and "following careful consideration" a decision to give up working. It makes no mention of the matters about which Mrs Panter complained to the Tribunal. However, if one looks at the letter of resignation, what Mrs Panter says in her first paragraph is that;

"Due to another bout of illness and after careful consideration I have decided to give up working".

"The "careful consideration" cannot refer to her illness, save to the extent that it may be stress related and brought on by the atmosphere at work. In the Tribunal's view, Mrs Panter was making clear reference through her words "after careful consideration" to the events about which the Tribunal heard evidence and whilst Mr O'Brien may criticise Mrs Panter for not having been more explicit, it is, however, clear to the Tribunal, that she was referring to these events and perhaps her lack of clarity is indicative of her non-confrontational and reserved disposition."

So that a first reaction to the Appellant's argument is that the Employment Tribunal there comes to a conclusion of fact, something exclusively within its province and with which the Employment Appeal Tribunal can not interfere.

But there is, within that passage, an apparent non- sequitur. I go back to the sentence "The "careful consideration" cannot refer to her illness, save to the extent that it may be stress related and brought on by the atmosphere at work". One has to ask, why should not the consideration be a careful consideration of whether, for example, given her repeated illness, it would not be wiser to give up work? Her most recent doctor's certificate was as to exhaustion. What the Employment Tribunal said at their para K, was that on 12th March, Mrs Panter went on sick leave for a period of 2 weeks and produced a doctor's certificate. The certificate is signed by Mrs Panter's General Practitioner and dated 12th March. It refers to Mrs Panter and says that "You should refrain from work for 2 weeks". It continues "The diagnosis of your disorder causing absence from work is exhaustion under investigation". Why should the Employment Tribunal have concluded that if the careful consideration was referable to her illness, it could only be to the extent that her illness was stress-related and brought on by the atmosphere at work.

When the Employment Tribunal concluded in para H, as we have quoted, that in the Tribunal's view Mrs Panter was making clear reference through her words "and after careful consideration" to the events about which the Tribunal heard evidence, were they referring, as one might expect, to the non-sequitur in their immediately preceding sentence, or were they referring to evidence from which they could property have concluded as they did? If it was the former, then arguably there was an error or law. If it was the latter, then it was a conclusion of fact with which it is not within our province to interfere. However, as the para H is drafted, it would seem to have been a reference to the former. Why else, it may be asked, should the Employment Tribunal have included that preceding sentence?

On the basis that there is, therefore, at least an arguable error of law, the matter should, in our view, go to a Full Hearing. There is, moreover, at least arguably a case that there is no requirement upon an outgoing employee claiming constructive dismissal to refer to the specific breach he relies upon his leaving. Mr Diamond, who has appeared today for Swan (Worthing) Ltd, has also attacked the view taken by the Employment Tribunal of the TUPE argument that they heard. It seems to us that not only should the matter go to a Full Hearing but that it would be appropriate that the Chairman's notes as to the circumstances surrounding the giving of the letter of notice and any evidence given as to the meaning properly to be given to the letter of notice should be made available at the Full Hearing and we accordingly, require that the Chairman should be invited to give his notes on that subject.

We finally add that we are not at all unhappy at both the Panter and Swan matters going forward because we can see that if only had gone forward there might have been some grounds for grievance, whether truly justified or not, by the party whose Appeal did not go forward. To that extent it is obviously convenient that if one goes forward then both should go forward, but, in any event, we have found separate grounds for both going forward.