United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellants	Ms C McManus, Solicitor Of- Messrs Harper Macleod Solicitors The Ca'd'oro 45 Gordon Street GLASGOW G1 3PE
For the Respondent	Mr K Hogg, Solicitor Of- Messrs Allcourt Solicitors 1 Cardmondean Centre Carmondean LIVINGSTON EH54 8PT


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employer against a finding of the Employment Tribunal sitting at Edinburgh in respect of unfair dismissal in favour of the respondent employee. Certain monetary awards were made, one of which was under attack before us.
2. The background to the matter is that the respondent employee had worked with the appellants for almost 20 years as a roofer, but, laterally, had been promoted against the background of a written contract to be Contract Supervisor. However, as the Tribunal findings disclose, more or less from the beginning of his employment in that role, the respondent was making it clear to his line manager, Mr Price, that he was unhappy in this role and wished to return to his job as a roofer. There are many references to this position throughout the Tribunal's discussion of the evidence and their findings in fact and we merely point to the matter as a matter of fact. Against that background the respondent wrote to his employer on 23 August 2002 in the following terms:-

"Dear Sir

I am writing to inform you of my intention to resign as Contract Supervisor, with one months notice.

From; 1^st of September 2002

If agreeable by yourself I would continue employment for Price Roofing as INDUSTRIAL ROOFER. Terms and conditions to be discussed and agreed between us at a meeting of your convenience.

Regards,

James Cox"

3. The findings of the Tribunal disclose that the response eventually to this letter by Mr Price was in the following terms:-

"Dear Mr Cox

We acknowledge your letter of 23^rd August 2002 advising us of your resignation from this company, which we accept.

We also note that you will leave on Friday 27^th September 2002.

You will require to return all equipment, fuel card, telephone etc. belonging to this company along with the case in a clean condition both internally and externally to this office.

Failure to comply with the above will result in your pay cheque being stopped.

Yours sincerely"

4. The evidence further discloses that the respondent was visibly shaken if not distressed by this turn of events and was said to have written a letter in reply which is set out on page 6 of the Tribunal's findings in the following terms:-

"I am writing to you regarding your letter dated 21 August 2002.

As you will recall there was a verbal agreement between us that if I was to resign from my current position of Contract Supervisor I would be offered the position of Industrial Roofer, which is the position I was previously employed in.

I note from your letter dated 21 August that you intend for my employment to terminate on this date which is not the arrangement that we had.

I assume that this is just an oversight at this state and that the position of Industrial Roofer is available for me to take up on 27 September 2002. Please confirm that this is the case. I am extremely disappointed to note that this oversight has occurred as I have been employed by this Company for over 20 years.

I look forward to hearing from you.

Yours sincerely."

5. The Tribunal notes that the appellants maintain they did not receive this letter.
6. Against that background the conclusions of the Tribunal were that the letter of 23 August should not be construed as a letter of resignation, that the employee had no intention of resigning and that the response by the employer purporting to accept the resignation amounted to a unilateral action of dismissal which was unfair because no reason was given.
7. Against that background, Ms McManus, appearing for the appellants, argued that the Tribunal had misdirected themselves on two basic questions.
8. First of all they should have considered or construed the respondent's initial letter as one of unambiguous resignation from his position as a Contract Supervisor and was accordingly in itself in breach of contract justifying the employer terminating the contract on the basis of accepting a repudiatory breach. In any event, she submitted, the employee was in breach of his contractual terms by not giving sufficient notice but that was not her main point. She referred us to a number of authorities dealing with the issues of ambiguity, the most important of which was Sothern v Franks Charlesly and Co [1981] IRLR 278 (ca). We mean no disservice to her excellent presentation if we summarise her position in this short way. Her position, in essence, was that the matter should be remitted back to the same Tribunal against a background of a finding of this Tribunal that the letter should be construed as an unambiguous letter of resignation and the case taken forward on that basis.
9. Mr Hogg, appearing for the respondent, pointed to the history of the matter which we have narrated and submitted at the end of the day the matter was solely one of intention, namely, did the respondent intend to resign to which he maintained the findings of the Tribunal produced an emphatic negative. He also pointed us to certain parts of the evidence with regard to the attitude of Mr Price, not least to the effect that the Tribunal found that he, Mr Price, knew that the respondent was not wishing to leave the employment against the background of his repeated request to change employment. It is perhaps significant that the Tribunal find on page 9 the following:-

"The tribunal was of the view that he had deliberately misconstrued that letter, it having been received very shortly after the row on the Coatbridge site when Mr Price had walked away from the applicant."

10. The reference to "he" is Mr Price. The reference to "that letter" is the reference to the letter of 23 August.
11. At the end of the day, we have come to the view that the Tribunal properly addressed the issue before them, against the background of intention. They were entitled to conclude, and, indeed, we think quite properly to conclude, that the letter although unambiguous, should not be construed as a letter of resignation but rather as a letter re-stating the position being taken up for some time by the respondent in relation to his wishes as far as employment was concerned and should not be construed as an intention to resign. What is much more important to our way of thinking is that the Tribunal make findings as to the motivation of Mr Price, both with regard to his knowledge of the respondent's state of mind, and, also, his reason for terminating the contract.
12. In these circumstances we consider that the Tribunal were quite entitled to find that the termination here constituted unfair dismissal and not even a constructive dismissal as contended for by Ms McManus. Accordingly, we will not interfere with the substance of this decision.
13. Ms McManus also raised the issue of contribution pointing out that it should be relevant in the context of the Tribunal's findings if we were against her and had not been addressed by the Tribunal. Mr Hogg accepted that if the issue was live it would have to be returned to the Tribunal for a further hearing.
14. It is not clear to us whether the matter was ever raised before the Tribunal, but, in any event, we do not consider it to be a relevant issue in the context of the facts of this case properly understood. If, as has been found, it was not the intention of the respondent to intimate the termination of his employment, even if the letter triggered the events which led to that fact, he did not deliberately contribute to them.
15. For this reason we consider the issue of contribution does not arise.
16. Finally Ms McManus attacked part of the compensation order which made an award for a period after the termination before the respondent obtained other employment against the background, that, according to them, the respondent was off work by reason of distress and ill health consequent upon and caused by the termination.
17. We have to recognise that there was no medical evidence led in this respect before the Tribunal such as appears to have been contemplated by the recent case of Dunnachie v Kingston upon Hull City Council Court of Appeal 11 February 2004. We are not quite sure whether the Tribunal in this case were applying the Dunnachie approach or simply deciding the matter as a matter of causation.
18. While, therefore, we accept that medical evidence would be required if the award was being made based upon illness consequent upon a dismissal, we are prepared to recognise as a matter of fact there is a sufficient causal connection between the comparatively short period of time of unemployment and the original dismissal, which, of course, triggered it. Given that fact, we consider the award can be justified and is not unreasonable against no suggestion of failure to mitigate. We will not therefore interfere with it.
19. For all these reasons this appeal is dismissed. We would, however, like to record our appreciation of two excellent arguments well presented on both sides.