United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms Naomi Cunningham Representative Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London WC1X 8LZ


 


JUDGE J McMULLEN QC

1. This case is about constructive dismissal. It is an appeal by the Applicant in those proceedings against a Decision of an Employment Tribunal, Chairman Mr C Twiss, sitting at Southampton on 1 June, promulgated with Extended Reasons on 16 June 2001. The Applicant was represented by a C.A.B representative, the Respondent by a solicitor. The Applicant claimed constructive unfair dismissal.
2. The issues before the Tribunal were whether the Applicant resigned on notice or by agreement, and if by notice, whether it was constructive dismissal. The Tribunal decided as a preliminary point that he resigned by notice and that he was not constructively dismissed. The Applicant appeals against that latter finding, and not about the former.
3. The basis of the appeal is set out in an amended Notice of Appeal, prepared by Ms Cunningham, acting for F.R.U today, and elaborated in a Skeleton Argument. We are grateful to her for the candid way in which she expressed the difficulty which her client faces in challenging the orthodox employment law in this case. That, however, does not mean that she has no reasonable arguments to put.
4. The Applicant was employed as a conservatory salesman from 1 February 1994 to 31 December 2000, when that relationship terminated. The Tribunal found that the provisions of the Employment Rights Act 1996 section 95(1)(c) were relevant to its consideration. It decided that the Applicant had not been constructively dismissed. 'Constructive dismissal' is a term which appeared to have been created by Lord Denning MR in Western Excavating -v- Sharp [1978] IRLR 27 CA. It is useful shorthand for describing the components of section 95(1)(c), that is

"(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct"

5. The Applicant submits that the Tribunal erred in law in reaching the conclusion that it did. In her argument today, four points are put forward. We consider that the points raised in the amended Notice of Appeal, for which we give leave, are all reasonably arguable, although to some extent, one is parasitic on another and may not have survived alone. We consider the best way forward is by a full hearing of these matters.
6. The first is that it is not a requirement of section 95(1)(c) that an employee must show a causal ink between the employer's breach and his/her resignation. That is because there is no additional requirement linking the two. We consider that the words 'in circumstances' may well connote a causal link, since the sense of this statute, in our preliminary view, involves some relationship between the unfavourable treatment by the employer, and the Applicant's response to it. Nevertheless, as a matter of first impression, the statute does not contain an express causal link, and we will therefore allow that point to be argued.
7. The second aspect of the Notice of Appeal contends that the Tribunal erred:

"in holding that the Appellant had affirmed his contract without making findings on the question whether and if so at what stage he was aware of his right to choose between affirmation and acceptance of the breach …."

We consider that is reasonably arguable. As put to us, the vehicle for the argument is an observation by Lord Justice Dillon in Bliss -v- South East Thames Regional Health Authority [1985] IRLR 308 at paragraphs 56 and 57, which we do not cite, but indicate that his Lordship regarded that argument as formidable, and likely to have considerable repercussions on employment law, but it was not necessary for the Court to deal with it. At Court of Appeal level, therefore, there is an indication that this is an argument to pursue, and we allow it, although as Ms Cunningham accepts, no other report indicates this argument being run in the 17 years since Mr Reynold QC so formidably argued it in Bliss.

8. The third ground requires a consideration of the steps taken which are said to be affirmative of the contract, and a distinction to be drawn between steps taken for the purpose of bringing the contract to an end, and other steps indicative of affirmation. For the reasons set out in her Skeleton Argument, we consider that this, too, is reasonably arguable.
9. The fourth ground is a direct challenge to employment law orthodoxy, and is based upon the self-direction of the Employment Tribunal in terms highly redolent of Western Excavating (above), and which includes the following:

"The applicant must not delay too long before resigning, lest he be deemed to have affirmed the contract."

10. The Tribunal received an argument such as we have received, and it records this in paragraph 24 of its Extended Reasons, paying particular attention to W E Cox Toner (International) Ltd -v- Crook [1981] IRLR 443, EAT. There Browne-Wilkinson J presiding held that:

"… delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract although if it is prolonged, it may be …"

As a result of that self direction, the Tribunal held that the Applicant delayed too long before resigning. It seemed to us that the Tribunal had thus correctly directed itself to the reservation contained within W E Cox Toner about the application, universally, of the doctrine in Western Excavating -v- Sharp, and had made a judgment of fact and degree, by describing the Applicant's delay as too long. If that were the only point in the case, we would have no hesitation in dismissing it because we do regard the combination of those authorities and the direction the Tribunal gave itself as being correct.

11. However, since we have allowed the issue of affirmation, and knowledge of the difference between that and acceptance, to be pursued, it follows that there could be a linkage to the question of delay. Thus if one does not know that one has the opportunity to affirm or accept, it is difficult to see how there can be criticism for waiting too long, and it begs the question of "too long after what?".
12. In those circumstances, unsatisfactory as it may be to open up what we consider to be a very clear strain of jurisprudence, we will leave to a full hearing a decision on that, because we consider, in the context of this case, it is reasonably arguable.
13. This should be allocated to category B with a day estimate. The amended Notice of Appeal will be served together with the Skeleton Argument here, by 3 April. We will ask, in the light of the weight of jurisprudence which Ms Cunningham has to move, that she serve twenty eight days before the hearing her Skeleton Argument, and that the Respondent serve its fourteen days before, and it would be very helpful if arrangements could be made between the parties for bundles of authorities to be provided to us.