United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W BIRTLES (of Counsel) Messrs Morgan Cole Buxton Court 3 West Way Oxford OX2 0SZ
For the Respondent	MR N PILLOW (of Counsel) Messrs Eversheds Senator House 85 Queen Victoria Street London EC4V 4JL


 


JUDGE WILKIE

1. This is an appeal by Mr Smith against the unanimous decision of the Employment Tribunal sitting at London (South) that he was not constructively dismissed and thereby dismissing his application that he was unfairly dismissed. That decision was dated 1 June 1999 as a result of hearings which took place on four separate days in January, March and April 1999.
2. Mr Smith commenced his application by an IT1 received by the regional office on 30 July 1998. In that document he identified his dates of employment as running from the 3 January 1988 until 30 April; 1998. The Respondent put in a Notice of Appearance on the 26 August 1998. One point which they took was that the application was out of time on the basis that "as admitted in the Originating Application, the Applicants employment terminated on 30 April 1998 by reason of his resignation. The receipt by the Regional office of the application form on 30 July 1998 meant that his application was out of time.
3. The Respondent took marginal issue with the period of employment. They state that it began on 4 January 1988 not the 3^rd, but they were at one with the Applicant in a recording that the effective date of termination was the 30 April 1998.
4. The question whether the application was out of time and if so whether, nonetheless, the Tribunal had jurisdiction to entertain the complaint, was the subject of a preliminary hearing. By a decision promulgated on 1 December 1998, arising out of a hearing on 30 October 1998, the Tribunal had concluded that the application was indeed out of time but that nonetheless, it fell to be considered under the rubric which enables the Tribunal to entertain an application notwithstanding the fact that it was out of time. In the course of that decision it concluded and made a finding that the effective date of termination of Mr Smith's employment was the 30 April 1998.
5. Mr Smith's employment with the Respondent had been going through an extended rough patch in various phases from 1995. Matters came to a head on the 26 January 1998, when, as a result of the circumstances in which he received an informal warning, Mr Smith tendered to the Respondent a letter of resignation, dated 26 January 1998. Neither side appeared to have retained a copy of that letter because there was none presented to the Tribunal.
6. However, it was common ground that there was some discussion on or about 27 January 1998, as to what was to happen in respect of that resignation. The Employment Tribunal heard evidence from Mr Smith and Mr Sharpe on that issue. In its decision at paragraph 5(xxi) and (xxii) they came to the following conclusions

"(xxi) When Mr Sharpe heard of the Applicants resignation he immediately spoke to Mr Saunders and a meeting was arranged on the afternoon of 27 January 1998 at which they attempted to persuade the Applicant to withdraw his resignation. This meeting lasted several hours.

(xxii) After that meeting Mr Sharpe was convinced that the Applicant had agreed to withdraw his resignation and remain with the Respondent for a further three months trial period. This was certainly the message that was communicated to Mr Bruff and the Respondent appears to have operated on the basis that the Applicant had not resigned. This may well explain why no copy of the letter of resignation was retained by them. However, the Applicant (and this was his own clear and categorical evidence to the Tribunal) had not withdrawn his resignation but had only agreed to extend his notice period for a further three months as this suited him in finding other employment and continuing to pay his mortgage until he moved house. The Tribunal therefore specifically finds as a fact that the Applicant resigned on 26 January 1998, albeit that the effective date of termination of his employment was 30 April 1998."

7. Thereafter it is common ground that the Applicant's contract of employment did continue and was in effect in March and April 1998 when he was moved back onto a particular project which had run into problems. He performed some work in respect of that project and indeed went far beyond what was expected of him. He had been asked to look for causes of the particular problem in that project and in fact he had not only identified the cause but had identified a solution.
8. On 15 April 1998 there was a meeting between Mr Smith and Mr Saunders. Mr Saunders had not been involved in that project and apparently knew very little about it. Nonetheless, this did not prevent Mr Saunders taking control of the meeting and severely criticising the Applicant for going down an incorrect route. The Tribunal summarised it in this way: -

"The Applicant, Mr Saunders asserted, had been required to find the cause of the anomaly not a solution for the anomaly. (In fact it was accepted before the Tribunal that the Applicant was in fact right and he had found the solution to the anomaly)."

"As a result of his treatment at this meeting the Applicant walked out and left the office of the Respondent never to return."

9. However that may have been, it is clear that there was some contact between the Applicant and the Respondent after the 15 April 1998 meeting. There was before the Employment Tribunal and has been produced to us this morning a letter from the Respondent in the form of Jane Butler, Human Resources Adviser to the Applicant dated 21 April 1998. The first two paragraphs of that letter insofar as they are relevant read as follows-

"Further to your advice in February 1998 regarding your decision to terminate you contract of employment with the Company. We unfortunately do not appear to have any correspondence concerning this matter and would, therefore, appreciate it if you could sign the enclosed letter confirming this decision.

Following the receipt of this letter of confirmation, your contract of employment will be terminated with the company with effect from 30 April 198. You will be paid up to 30 April 1998 plus an additional 4.5 days holiday pay. Any outstanding monies will be paid directly into your bank account. Your P45 will be forwarded onto you."

10. That letter then deals with a number of other matters but it concludes in the ultimate paragraph:

"Please let me know if you need clarification on any points."

11. Before the Employment Tribunal Mr Smith who was representing himself made some submission which are summarised by the Employment Tribunal in paragraphs 6.1 of their decision which reads as follows: -

"The Applicant submitted that the Respondent's treatment of him namely (1) overworking him in the period from June 1995 to September 1996 to the detriment of his health (2) depriving him of the new work in the period October 1996 to January 1998 and treating Dr Rutland more favourably and (3) imposing unreasonable demands in March/April 1998 and treating him with contempt at a meeting on 15 April 1998 amounted to constructive dismissal."

12. The Respondents in turn made submissions which were summarised in paragraph 6.2 of the decision. They took issue with the question whether any of the complaints were sufficiently serious to be treated as fundamental breach and dealt specifically with the first two periods. Their final submission in respect of the last period and in particular the 15 April 1998 reads as follows: -

"That in any event anything that took place after the Applicant resigned on 26 January 1998 could not be evidence on which the Applicant could base a claim for constructive dismissal."

13. The Employment Tribunal reached certain conclusions and they expressed those in sub paragraphs,(i)-(iii) in paragraph 8. Their first conclusion was that if he had chosen to have resigned at any time between December 1995 and September 1996, the period of gross alleged over work, the Tribunal would have had no difficulty in concluding that he had been constructively dismissed. However, they stated that by continuing to work for the Respondent the Applicant affirmed his contract of employment. No quarrel is taken by Mr Birtles, Counsel for the Applicant, with this assessment or this conclusion.
14. As far as the second period is concerned, between October 1996 to January 1998, where the complaint rather was of lack of work being given rather than overwork. The Employment Tribunal concluded that there were good reasons for the lack of work during that period of time being allocated to Mr Smith and rejected in his contention that during that period the Respondent was in breach of contract. Accordingly the resignation letter of the 26 January 1998 was not itself a response to conduct which could give rise to a constructive dismissal.
15. Once again Mr Birtles does not seek to go behind that reasoning of those findings of fact. In paragraph 8.(iii) of the decision, the Employment Tribunal express themselves as follows: -

"The Tribunal determines that the events that took place after the Applicant's resignation on 26 January 1998 cannot as a matter of law be relied upon by the Applicant as evidence to support his claim of constructive dismissal on that date. If, as a matter of law, the Applicant were able to rely on his treatment by Mr Saunders at the meeting on 15 April 1998, the Tribunal would have had no hesitation in finding that the Applicant had been constructively dismissed."

They then conclude in sub paragraph (iv)

"On the application of the law relating to constructive dismissal to the findings of fact made by the Tribunal, this applicant's claim fails."

16. Accordingly what the Employment Tribunal concluded was that as the alleged constructive dismissal took effect on 30 April pursuant to the running out of the notice period which had been given by, or arose out of, the resignation of 26 January, the events of the 15 April were in law irrelevant to the question whether that resignation of the 26 January was such that the termination of the employment pursuant to it could be properly characterised as a constructive dismissal.
17. What the Employment Tribunal is not saying in paragraph 8(iii) is that in no circumstances could events during the running of a notice period give rise to a fresh entitlement to resign and claim constructive dismissal. The first sentence of paragraph 8(iii) specifically limits it to the impact of after occurring events on the claim of constructive dismissal deriving from the resignation letter of the 26 January 1998.
18. Mr Birtles accepts that if that is the way that sentence is to be read, (and he accepts that it is a proper reading of it), then that particular sub paragraph of the Employment Tribunal's decision does not evidence any error of law. In essence and the argument which was identified by him and articulated in the amended Notice of Appeal and on the basis of which, at the ex parte hearing, the Employment Appeal Tribunal concluded that there was sufficient argument to go on to inter partes hearing is this:- that the Employment Tribunal erred in law in concluding that the effective date of termination was the 30 April, whereas had they been properly alert to the nature of the case which Mr Smith was running, they should have considered and should have decided that the effective date of termination was the 15 April. Further the reason for Mr Smith's termination of the contract of employment was the conduct to which he was subject of the 15 April 1998.
19. Mr Smith, having received the adverse decision of the Employment Tribunal, by letter of the 4 June 1999 sought a review of the decision. That application for a review was considered by the Chairman and was rejected by a decision attached to which were extended reasons dated 15 July. In his application for a review Mr Smith had identified three separate grounds. Only the third ground is relevant for our purposes today. The Chairman deals with that ground in paragraph 4 of that decision in the following terms: -

"The third ground for a review is to ask the Tribunal to reconsider the legal position of the Applicant in the period after he resigned on 26 January 1998 and before the effective date of termination of his Contract of Employment on 30 April 1998. Although it is not clear exactly how the Applicant puts his case on this point, (and it was certainly not a submission put before the Tribunal or considered by the Tribunal at the hearing), the Applicant mow appears to be submitting that after his resignation on 26 January 1998 he had effectively affirmed his contract of employment at least prior to 15 April 1998. His resignation had thus in effect been withdrawn and he was therefore constructively dismissed by reason of Mr Saunder's treatment of him on 15 April 1998."

20. The Tribunal Chairman was of the view that this argument was not open to the Applicant because of its findings of fact set out in paragraph 5(xxii) based on the Applicants own evidence. Mr Pillow for the Respondent makes, as his main point, that the appeal taken by Mr Birtles on behalf of Mr Smith in effect amounts to a reinvention of Mr Smith's case so as to put it on a wholly different basis from that which it had always been up to and including the Employment Tribunal hearing. That would have been a version of events which, had they occurred, would have fallen in more closely with a legal analysis which would have assisted Mr Smith in the light of the specific findings of fact by the Tribunal and in particular their findings of fact as to the nature of the conduct to which he was subject on 15 April.
21. Mr Birtles for his part accepts that if, in truth, what he is running is an entirely new point on a different basis from that which had been run before the Tribunal then Mr Pillow would have a knock out point because it is not permissible simply to reinvent the case and run a new case on appeal to that which has been run and not succeeded at first instance. What he says however, is that he is not reinventing Mr Smith's case and that it is implicit in the case which Mr Smith was running at the Employment Tribunal that he was in truth saying that the 15 April 1998 was the last straw, that when he left the Respondents premises never to return in effect that did constitute a termination of his contract of employment in circumstances which, by their findings of fact, the Employment Tribunal should have recognised as constituting a constructive and dismissal.
22. We have a great deal of sympathy with Mr Smith. He is not a trained lawyer. It is clear from the Employment Tribunal findings that they considered that the Respondents conduct to him on the 15 April was outrageous and such that, if it had been on its own and if he had manifestly responded to that piece of conduct and resigned there and then or within a day or so afterwards, he would have had a perfectly good claim for constructive dismissal. It must have been very galling for him to see that, although the Employment Tribunal recognised the quality of the Respondents conduct to him on the 15 April, he nonetheless failed to establish his case on what may on one view appear to be a technicality. The difficulty which we have found and which, frankly, we have found in surmountable is the fact that Mr Smith from the outset had consistently put his case on the basis that his employment with the Respondent terminated on the 30 April, being the expiration on the period of notice which he had given or agreed to give by virtue of his resignation on 26 January 1998. That being the case his contract of employment terminated as a result of that notice taking effect. Had, on the 15 or 16 April he indicated that he was not returning, that the contract was at an end and that the reason for it was the events of the 15 April then it would have been quite different. He appears, however, to have gone out of his way, both in the documents submitted to the Employment Tribunal and in the evidence that he gave to the Tribunal, to insist upon the fact that his employment continued until 30 April and that it continued pursuant to the running out of the period of notice under a resignation given by him on the 26 January which he was at pains to point out he had never withdrawn. Furthermore the fact that, we are told, he signed a letter on or about 21 April confirming that he had resigned by an earlier resignation and confirming that pursuant to that earlier resignation his employment would run until the 30 April without any attempt to refer to the 15 April meeting or to any premature termination of his contract to which that would give rise, rather under scores the point echoed by the Employment Tribunal in their review decision, namely that Mr Smiths case from the outset was perfectly clear. Unfortunately for him, as the law stands, whether or not there was a constructive dismissal under those circumstances depended upon the quality of the conduct leading up to and resulting in the resignation of the 26 January. As events unfolded, the events of the 15 April, whilst they had the potential to give rise to a new constructive dismissal had he acted on them, did not in fact do so.
23. Therefore, however galling it may be for Mr Smith the conclusion to which we have come is that Mr Pillow's submission is correct. In effect Mr Birtle having, either himself or on instructions, identified the particular point and pursued it with great skill and ability, is nonetheless engaged in an exercise of running a different case before this Tribunal than the one which was run by his client before the Employment Tribunal. Therefore, although we have great sympathy with Mr Smith we have no option but to dismiss this appeal.