United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW BURNS (Of Counsel) Under the Employment Law Advice Scheme


 


JUDGE PETER CLARK

1. By an Originating Application presented to the Leeds Employment Tribunal on 2 March 2001 the Appellant, Mrs Whitton, complained of constructive dismissal by the Respondent, her former employer North East Lincolnshire Council. The claim was resisted, the Respondent contending that the Appellant voluntarily resigned her employment, which began in April 1996, on 3 January 2001.
2. When the matter came before an Employment Tribunal sitting at Hull under the chairmanship of Mr D J Latham on 27 July 2001 it appears, from the Employment Tribunal's decision with Extended Reasons promulgated on 17 September 2001, that the Appellant's case was not that she resigned in response to a repudiatory breach of contract (constructive dismissal), but that she was actively dismissed by the Respondent within the meaning of section 95(1)(a) of the Employment Rights Act 1996 when, towards the end of January 2001, the Respondent sent her a form P45 and details of her pension entitlement. The Respondent continued to maintain that she had voluntarily resigned from the employment.
3. We should deal first with the chronology of events so far is our material. On 20 November 2000 the Appellant began a 12 week trial as an Administrative Assistant in the department in which she was employed at the termination of her employment. That was pursuant to a letter of offer dated 16 November in which it was said:

"I am sure that you will make a success of the post but again if things do not work out we will work with you to find another post."

4. It seems that an incident occurred which caused some distress to the Appellant when a question was raised as to whether or not a book had been received in her new department, the Employment Developmental Department, it being her responsibility to check the post. As a result the Appellant did not attend for work on 4 January 2001 but on that date made 2 relevant telephone calls.
5. There was a factual dispute before the Employment Tribunal as to the content of those calls. The Employment Tribunal resolved that dispute in favour of evidence led by the Respondent. They found that on that day the first telephone call made by the Appellant, who had not attended for work, was to Mrs Pearson, the Contracts, Administration and Finance Manager of the Respondent. The Employment Tribunal found that during that conversation the Appellant told Mrs Pearson that she would not be coming in that day and that there were some issues she intended to bring up at a review meeting to be held the following day, 5 January. Mrs Pearson asked whether she intended attending that review meeting and the Appellant told her she did not think she would and said: "I won't be coming back". Mrs Pearson then advised the Appellant to speak to Miss Hames, the Personnel Officer.
6. Later on 4 January the Appellant did telephone Miss Hames and told her that she would not be returning to the Employment Development Department due to the incident over a missing parcel; nor would she be attending the review meeting.
7. Thereafter the Appellant did not attend the review meeting, nor did she return to work. On 16 January Miss Hames wrote to the Appellant asking her to confirm by return that she had resigned from the post which she held. Prior to that letter the Appellant had consulted solicitors who wrote to the Respondent on 11 January stating that they had advised the Appellant to invoke the grievance procedure until then they had advised her not to return to work subject to a guarantee as to the behaviour that the Appellant maintained she had experienced.
8. It has emerged during the course of the hearing before us, contrary to the apparent place in the chronology in the Employment Tribunal's reasons, that on 23 January the Respondent sent to the Appellant a form P45 bearing that date giving her date of leaving the employment as 3 January 2001. Thereafter the Director of Human Resources, Jan Finch, wrote to the Appellant's solicitors on 16 February stating the Respondent's understanding that the Appellant had left the employment but that if she had a problem she should discuss it with her manager whilst emphasising, as the Employment Tribunal put it, that the Appellant had "walked off the job" and would not be receiving pay from that date.
9. No response was received from the solicitors and on 22 February a meeting was held between the Appellant and Miss Hames. At that meeting the Appellant was given a copy of the grievance procedure but she told Miss Hames that she was at that stage too ill to go back to work and was submitting a claim for constructive dismissal. Mr Reeve, a Personnel Manager wrote again on 2 March telling the Appellant that if he did not hear from her again by Friday 9 March it would be considered that she had left the employment.
10. On those facts the Employment Tribunal concluded that the Appellant had resigned from the employment on 4 January and it not being contended by her that she resigned in circumstances amounting to constructive dismissal, the application was dismissed. Alternatively, the Employment Tribunal found that had she been dismissed and dismissed unfairly she had contributed to her own dismissal by her conduct as set out at paragraph 12 of the Employment Tribunal's reasons to the extent of 100 per cent.
11. In support of the appeal against that decision Mr Burns appearing on behalf of the Appellant under the ELAAS Pro Bono Scheme takes essentially 2 points on the finding that there was no dismissal. The first is that the finding was perverse. Secondly, he submits that the Employment Tribunal either failed to apply the correct test in law where there are ambiguous words of resignation or alternatively that they have not stated what test they did apply in relation to that question. It is convenient to take those points in reverse order.
12. Mr Burns has referred us to the perceived difference in approach between judges sitting on the Court of Appeal in the case of Southern v Frank Charlesley & Co [1981] IRLR 278 as explained by the learned editors of Harvey on Industrial Relations and Employment Law at Volume 1 D1 229 and 242. It is there said that Fox LJ identified the relevant test where ambiguous words of resignation are used as being the test of the objective reasonable listener whereas Dame Elizabeth Lane, by referring to what the employers knew or ought to have known, was applying a different test. Lord Justice Stevenson agreed with both judgments.
13. It seems to us that the true test is to concentrate not on the subjective intentions of the speaker nor the subjective understanding of the listener but to concentrate on how a reasonable listener would have understood the words used.
14. Returning to the Employment Tribunal's findings on the disputed conversations on 4 January it seems to us in short that the Employment Tribunal did apply the correct test, that of the reasonable observer and having done so concluded that the words were words of resignation from the employment rather than simply an indication that the Appellant no longer wished to work in the Employment Development Department. In these circumstances we are satisfied that the Employment Tribunal applied the correct test. The question then is whether their conclusion was a perverse conclusion. We bear in mind the high burden placed on Appellants in establishing perversity as recently emphasised by the Court of Appeal in Yeboah v Crofton [2002] EWCA 794. In our view, based on the Employment Tribunal's findings of fact, it was plainly open to them to conclude that these were words of resignation so that in answer to the question posed by Master of the Rolls in Martin v MBS Fastenings Glynwed [1983] ICR 51, who really terminated the employment, the Employment Tribunal found as a matter of fact that it was the Appellant and consequently this claim failed.
15. That disposes of the appeal. We make no observations on Mr Burns' further submissions on the Employment Tribunal's alternative finding of 100 per cent contribution. This appeal is dismissed.