United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS U BURNHAM (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE CLARK

1. The Appellant, Mr Burd was employed by the Respondent NHS Trust as a Consultant Plastic Surgeon at their Frenchay Hospital, Bristol. He presented a complaint of constructive dismissal to the Bristol Employment Tribunal on 1 November 1999. The Respondent took the point that the claim was presented outside the primary 3 month limitation period applicable to claims of unfair dismissal. That point was taken as a preliminary issue before an Employment Tribunal Chaired by Mr C G Toomer sitting at Bristol on 5 January 20000. The Appellant did not attend that hearing having taken up a post in Hong Kong. He relied on written representations. The Employment Tribunal found, by a decision with extended reasons promulgated on 17 January 2000, that the complaint was out of time and that it was reasonably practicable to have presented it within time. Accordingly the claim was dismissed.
2. Against that decision the Appellant now appeals. In box 4 of his form IT1 the Appellant gave as the effective date of termination of his employment 31 July 1999. If correct, that would mean that the complaint was presented out of time.
3. The Respondent, by their Notice of Appearance, put forward 3 possible dates as being the effective date of termination, 29, 30 and 31 July.
4. The Employment Tribunal found the following facts after hearing evidence on behalf of the Respondent. On 29 July the Appellant sent by fax to the Respondents solicitors a draft letter of resignation in which he indicated that he was tendering his resignation with immediate effect. He had foreshadowed that letter by a fax to the Respondent the previous day.
5. On 30 July the Appellant spoke to Mr Skinner, the Respondents Head of Human Resources. He told him that he would be leaving for Hong Kong in 8 hours time and would be taking up his new post on Monday 2 August. Mr Skinner accepted the situation during that conversation and the Employment Tribunal found that it was plain to him that the Appellant regarded his employment as at an end. The Appellant also signed a resignation letter dated 29 July and posted it to the Respondent. That letter arrived at the Respondent on 2 August and by letter of the same date, 2 August, Professor Phyllida Pasloe, the Respondents Chairman acknowledged receipt of that letter and wrote to the Appellant in these terms: -

"Dear Mr Burd Thank you for your letter dated 29 July in which you tender your resignation from the post of Consultant Plastic Surgeon, with a special interest in Burns and Plastic Surgery, North Bristol NHS Trust, with immediate effect. I confirm that I accept your resignation."

6. On 6 August Mr Skinner wrote to the Appellant, stating that that the Trust accepted his resignation as being effective on 31 July, the date which appears on the Appellant's form IT1.
7. Having considered the facts as they found them the Employment Tribunal concluded that, for the purposes of Section 97(1)(b) of the Employment Rights Act 1996, the termination took effect on 30 July when the Appellant informed Mr Skinner that he was intending to leave to take up an appointment in Hong Kong in 8 hours time. Accordingly the Originating Application ought to have been lodged by the end of 29 October. It was out of time.
8. They went on to find that it was reasonably practicable for the Appellant to present his complaint within time, setting out the factors which they took into account in paragraph 6 of their reasons
9. Ms Burnham who appears on behalf of the Appellant before us takes no point on the finding that it was reasonably practicable to present the claim within time. The sole issue before us is whether the Tribunal erred in law in concluding that the effective date of termination was 30 October rather than 2 August, which is the date for which the Appellant contends.
10. We accept that notice of dismissal, whether it was summary or not, cannot take effect until it is received by an employee. The same is true of notice of resignation given by the employee; it will not take effect until it is communicated to the employer.
11. However, the question in this case is first whether the Employment Tribunal was entitled to find as it did in the first sentence of paragraph 4.

"Mr Skinner accepted the situation in the course of that telephone conversation (that is on 30 July) and we are satisfied that it was quite plain to him that the applicant regarded his contract of employment as being at an end."

12. Ms Burnham submitted that such finding was contrary to the evidence against the weight of the evidence and/or perverse. We cannot accept that submission. The question on appeal is whether that finding of fact was unsupported by or contrary to the evidence. In reality, the Employment Tribunal accepted the evidence given by Mr Skinner in preference to the Appellant's written representations to the contrary. That is a matter for them as the fact-finding Tribunal. We cannot retry the facts on appeal.
13. Secondly, on those findings of fact, was the Employment Tribunal entitled to conclude as a matter of law that the effective date of termination was 30 July, the day of the telephone conversation between the Appellant and Mr Skinner? We think that they were.
14. The Appellant's case was that he was constructively dismissed. That is to say that the Respondent had been in repudiatory breach of his contract of employment. Such repudiatory breach on the part of the employer must be accepted by the employee to bring the contract to an end. On the Tribunal's findings that acceptance by the Appellant was communicated to Mr Skinner on 30 July. No more needed to happen. The subsequent letter received by the Respondent on 2 August was immaterial. It merely confirmed the position as it was at 30 July; that the employment was at an end.
15. It seems to us that in these circumstances no error of law is made out in this appeal and consequently it must be dismissed at this preliminary hearing stage.