At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
DR B V FITZGERALD MBE LLD
BARONESS M T PROSSER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR T GREENSTEIN Representative |
For the Respondent | MR IAIN O'DONNELL (Of Counsel) Instructed by: Wealden District Council Legal Services Pine Grove Crowborough East Sussex TN6 1DH |
Constructive dismissal – preliminary issue – affirmation of contract. Termination by employee on notice – notice period extended by 2 weeks – no affirmation. Appeal allowed.
HIS HONOUR JUDGE PETER CLARK
"Firstly I would advise you that I will not be withdrawing my notice to end my employment. Whilst I very much appreciate the time you have taken to listen to my concerns. I feel that the relationships within the team have deteriorated to such an extent that they cannot be recovered."
Later she said:
"As discussed on Monday, in view of the delay in initiation of the recruitment and selection process resulting from the time you have kindly taken to investigate my concerns, I am prepared to extend my period of notice to 31 March 2004."
"The Applicant (Claimant) gave two months notice of her intention to terminate her employment with the council. She subsequently extended her period of "notice" by a further two weeks. The respondents would contend that in so doing she affirmed her original contract of employment and as a result cannot argue that she resigned in response to a fundamental breach of contract by the Respondents. Insofar as there was any breach of the Applicant's contract (which is not admitted), the Applicant failed to resign in a timely fashion."
"The parties are agreed that the Claimant submitted a letter of resignation dated 19 January 2004, giving two months notice of resignation and that the period of employment was extended to 31 March 2004. There is a dispute between the parties as to whether this extension came about at the instigation of the Claimant or the Respondent. In any event, the Respondent claims that such extension of the notice period amounted to an affirmation of the contract by the Claimant."
"Whether the Respondent asked the Claimant to work an extra 2 weeks at the end of her notice period or the Claimant asked to work an extra 2 weeks is not known."
"The fact that the Claimant worked her notice is therefore irrelevant to the question of affirmation of contract."
(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.
"The only previous case in the Court of Appeal on the words is Marriott v Oxford and District Co-operative Society Ltd (No 2) [1971] 1 Q B 186. It was under the Redundancy Payments Act 1965. Section 3(1) (c) did not apply because it only applied where the employee terminated his contract without notice, whereas Marriott had terminated it with notice. So the court put it on section 3(1)(a). But since the amendment to the wording of paragraph (c), it would have been more properly brought under paragraph (c) it was not really an (a) case: but we had to stretch it a bit. It was not the employer who terminated the employment. It was the employee: and he was entitled to do so by reason of the employer's conduct.