United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A TOLLEY (of Counsel) Instructed by: Messrs Mackrell Turner Garrett Solicitors 21-25 Church Street West Surrey GU21 6DJ
For the Respondent	MR P HALLIDAY (of Counsel) Instructed by: Messrs Barlow Robbins Solicitors Concord House 165 Church Street East Woking Surrey G&21 6HJ


 


SUMMARY

UNFAIR DISMISSAL: Constructive dismissal

An employee's acceptance of an employer's repudiation of the contract of employment need not be communicated to the employer. An unequivocal overt act which is inconsistent with the subsistence of the contract may be sufficient, without any concurrent manifestation of intent directed to the other party. STC v Golodetz applied.

The assessment of such act or conduct is a fact for the Employment Tribunal to find.

The Employment Tribunal did not err in its finding as to the date of the employee's acceptance and its finding of constructive unfair dismissal was upheld.

HIS HONOUR JUDGE McMULLEN QC

1. This case is about constructive unfair dismissal and an Employment Tribunal judgment said to be perverse. The judgment represents the views of all three members. We will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against a reserved judgment of an Employment Tribunal chaired by Employment Judge Corrigan sitting over four days at London South, registered with reasons on 15 October 2007. The Claimant was represented there by a solicitor who today instructs Mr Patrick Halliday; the Respondent by Mr Adam Tolley of Counsel. As far as is relevant to the appeal, the Claimant claimed constructive unfair dismissal. The Respondent contended he resigned and did not do so in response to any fundamental breach of contract it committed. It did not contend in the alternative that the dismissal was fair.

The issues

3. The essential issues as defined by the Employment Tribunal and now surviving on appeal are as follow:

"6.1 On what date did the Claimant resign?

6.2 Did he resign in response to an act or omission on the part of the Respondent?

6.3 If so, did the Respondent's conduct amount to a fundamental breach of the Claimant's contract?

6.5 If the Claimant was constructively dismissed, what was the reason for the dismissal? In particular was it the potentially fair reasons of either conduct or performance?"

4. The Tribunal decided in favour of the Claimant and made an award of £18,338 in compensation. It held the reason for his resignation was the conduct of the Respondent. This is not a fair reason under s98(1) and (2) of the Employment Rights Act 1996, and so the Tribunal did not go on to consider fairness under s98(4): the dismissal was unfair. The Respondent appeals. Directions sending this appeal to a full hearing were given in Chambers by HHJ Birtles and further directions were given for the request of the Employment Judge's answers to questions with her notes on certain points since the parties had failed to agree. We are very grateful to her for providing these at such short notice.
5. We have during the course of this case ourselves given directions in accordance with the overriding objective to ensure that all relevant live issues were determined within the one day allocated to the case and agreed by the parties.
6. The reason we heard the point about the date of termination first was that we were able to decide that it was not necessary to hear arguments in relation to the application of the Employment Act 2002 (Dispute Resolution) Regulations 2004. We did not call upon Mr Halliday to answer Mr Tolley's ground of appeal relating to a reasonable and proper cause for putting matters to the Claimant about his performance.
7. Nevertheless, notwithstanding those case management decisions, this part of the case lasted all day. Mr Tolley guardedly said that it will be of assistance should he wish to appeal (if he were unsuccessful) for the Court of Appeal to have our view on the Regulations but in the light of the constraints of time and of the conflicting judgments which he has put before us at the EAT as to which we have heard no submission by Mr Halliday, there is no injustice caused to the parties. It may well be that if Mr Tolley, after consulting his clients, decides to take this case to appeal, then the Court of Appeal would be the place in which those issues which he says are of concern and are unresolved at EAT level can be sorted out.

The legislation

8. The relevant provision of the legislation in addition to the ones we have mentioned is Section 95(1)(c) which provides as follows.

"95 Circumstances in which an employee is dismissed

(1) For the purposes of this Part an employee is dismissed by his employer if …

(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."

Dismissal is unfair if a potentially fair reason is not advanced and none was found in this case.

9. The Employment Tribunal directed itself by reference to the relevant provisions and what we hold to be the leading authorities on constructive unfair dismissal which are cited in the reasons and accepted to be a correct self direction. The issue for us is whether the Tribunal correctly applied them.

The facts

10. The Respondent is a sole purpose company registered in Jersey to operate a helicopter. It appears to employ only the Claimant who was employed by it as a helicopter pilot at a salary of about £52,000 a year for two years until the relationship ended by his resignation on 14 March 2007, a date disputed by the Respondent which now says it was 8 March, having previously advanced its primary case based upon 5 March.
11. The date would be important for the purposes of the Regulations since the claim form was submitted on 11 June 2007. Thus, it is in time for the date of dismissal found by the Tribunal but out of time for 8 or 5 March.
12. The Employment Tribunal found that the relationships in this very small business were effectively controlled by Mr Adrian Kirby who operated some commercial flights but used the helicopter for his private use. There is another limited company which also operates and carries out duties for him in relation to a polo team.
13. The background to this case includes difficulties in refitting a replacement helicopter, known as a Dauphin, which the Claimant was engaged to carry out and to see to the refurbishment but which ran into difficulties due primarily, it is thought, to the failure of other parties to deliver on time. The Respondent company has an informal close-knit set of relationships with others, that is between Mr Kirby and the people who assist him in his various operations.
14. During the relevant period of this case, Mr Kirby was, as the Employment Tribunal engagingly put it, subject to a rather frustrating experience in that he was in prison and gave some of the instructions relevant to this case from that uncomfortable position. He was convicted and was released from prison on 28 February 2007. Up to that time, evidence was adduced that the Claimant was enthusiastic about his work but that Mr Kirby became dissatisfied, principally as a result of the failure to get the Dauphin off the ground.
15. Nevertheless, despite rather negative emanations sent from prison through Mr Kirby's solicitor, a meeting was to be set up at which the air could be cleared once Mr Kirby was released. It took place on 5 March 2007. The Tribunal mostly accepted the Claimant's account of it. There was a good deal of language emanating from Anglo Saxon and Old English which we need not relate. This was neither the standard of the way in which Mr Kirby treated his staff, nor of the helicopter industry nor of the polo recreation in relation to the support staff who assisted him.
16. So it was that on 5 March, in a shortish meeting, words were exchanged. The Tribunal found that there was considerable abuse by Mr Kirby of the Claimant. As a result, two things happened. The Claimant said "I am not taking this shit" and left the meeting. Pursuant to that a number of steps was taken, for example, cancelling the Claimant's business credit card.
17. On 8 March 2007, the Claimant accepted an offer from another helicopter company, Alan Mann Limited, to pilot a flight which he billed in his own name of Ottershaw Aviation, some 11 days later. The Tribunal found that on this date, the Claimant was unsure of his position and sought legal advice. His diary indicates that taking place on 7 March 2007. So, on 12 March, solicitors instructed by him wrote a letter which makes various complaints and accepts the repudiation of the contract by the conduct of Mr Kirby at the meeting on 5 March. That letter is also the vehicle for the submission of a grievance pursuant to the 2004 Regulations.
18. The Tribunal concluded, having reviewed the relevant law, as follows in relation to the sequence of questions which it asked itself at the outset. The first related to the date of resignation.

"96. The Tribunal find that the Claimant resigned by the letter from his solicitor to the Respondent dated 12^th March 2007. Allowing two days for post this would have been received by the Respondent on 14 March 2007. The date of termination of his employment was therefore 14^th March 2007. This is in agreement with the date of termination given in the ET1.

97. The Tribunal do not consider that the Claimant resigned in the meeting of the 5^th March 2007. When faced with abusive behaviour, he left the meeting stating 'he did not have to take this shit'. The meeting was at Mr Kirby's house and so the Claimant's departure was not the same as walking out of a place of work. The Claimant worked regularly at home. The Tribunal do not consider there were unambiguous words of resignation. The Tribunal do not consider there were ambiguous words which could be construed as a resignation. The Claimant walked out of a meeting in which he was being abused. The Tribunal do not consider the objective and reasonable interpretation of this was that he had resigned.

98. Even if the Claimant's words and conduct, whether unambiguous or ambiguous, did amount to a resignation, they were said in the heat of the moment, therefore this would be a case where special circumstances exist and the Respondent was unreasonable to assume the Claimant had resigned in the meeting without awaiting confirmation. The Claimant confirmed to Mr Hyde the same evening that he had not intended to resign, therefore, the Respondent was on notice the same day that he Claimant had not intended to resign.

99. The Respondent did take a number of steps which demonstrate that Mr Kirby did assume the Claimant had resigned, including cancelling the Claimant's credit card and searching for another pilot. Knox Cropper asked the Claimant for documents in his possession. However there was no direct contact between the Respondent and the Claimant which could amount, without more, to a termination by the Respondent. The Tribunal therefore accept that the Claimant's position was not resolved until the letter of resignation received on the 14^th March 2007."

As to the question of whether this was in response to acts or omissions on behalf of the Respondent, the Tribunal said this:

"105. The Claimant's Representative also referred to the conversation between Mr Hyde and Chris Holland and suggest that the Respondent intended the Claimant to be dismissed or resign in the meeting of the 5th March 2007. The Tribunal have found that the Claimant was unaware of this conversation at the time of his resignation and this was not a reason for his resignation.

106. For the avoidance of doubt the Tribunal do not consider the Claimant left his employment to take up freelance employment with Alan Mann. The fact that he flew for Alan Mann on the 8th March 2007 and subsequently claimed for it on his own headed paper on the 19th March 2007 is not evidence of the contrary. He could legitimately have flown the same flight for Atlantic Air and invoiced on Atlantic Air's headed paper if his employment situation had resolved favourably. The fact that he claimed in his own name is indicative only of the fact that the resigned on the 12th March 2007 and invoiced after that date. "

As to whether the conduct there described was a fundamental breach of the contract the Tribunal came to this conclusion:

"107. The Tribunal considered the fact that the Claimant and Mr Kirby were informal in their dealings with each other and did swear during their working relationship. However the conduct of Mr Kirby in the meeting of the 5th March 2007 did exceed the limits of the contract and was not behaviour the Claimant could be expected to tolerate. Not only was it more abusive than the usual language between the parties, but it was in direct response to the Claimant's attempt to address issues that were reasonably of concern to him in relation to his employment contract. The Tribunal considered the conduct in the context of the letter of the 14th February, and the lack of subsequent apology or attempt to resolve matters with the Claimant. The Tribunal considered that the Respondent's conduct in the meeting of the 5th March 2007 and subsequently did amount to a fundamental breach of the trust and confidence between the Claimant and the Respondent.

108. For the avoidance of doubt, the other matters raised at paragraph 103 above were not breaches of contract. The Claimant agreed to the changes in his role, indeed he drafted his own contract of employment and included these additional responsibilities. He was amenable to some weekend working if he had notice and commensurate time off. There was no evidence that he actually had exceeded duty hours, only that he had concerns to ensure he was not put in such a position in the future. The issue in relation to the 'unauthorised flights' was, as far as the Claimant was aware, resolved."

On that basis, the Tribunal found that the Claimant was constructively unfairly dismissed and made the awards.

19. It noted that on that basis the Regulations were not engaged by way of the extension that is given once a grievance is lodged.

The Respondent's case

20. On behalf of the Respondent it is contended that the Claimant elected by conduct on 8 March to accept the repudiation relating to the Respondent's conduct on 5 March. Its pleaded ground of appeal relating to acceptance on 5 or 8 March was at the hearing reduced to 8 March. The Claimant did so by the unequivocal and unambiguous overt act of accepting the offer to pilot the flight of Alan Mann for which he was subsequently paid £300. This was, as the Tribunal found, not the acceptance of a full-time engagement with Alan Mann. See paragraph 106 which we have extracted above.
21. Reliance was placed on the Claimant's concession at the Employment Tribunal hearing, as to which there are additional notes by the Employment Judge, indicating that he was at this stage in some sort of limbo and recognising that he would not have flown the flight if he was still in the employ of the Respondent.
22. Nevertheless, the Tribunal accepted that the correct position was that the relationship did not come to an end until the letter of 12 March was received by the Respondent on what it put as being 14 March. It was submitted that there is no necessity for the Respondent to know of any unequivocal act but the contract comes to an end by acceptance by the Claimant in the circumstances where such activity is conducted.
23. It was submitted that this date of dismissal point, being 8 March, was not a new point and could properly be argued before us. As to the nature of repudiation, it was contended that the Tribunal had failed to make a clear finding in relation to whether or not the Respondent had reasonable and proper cause for making the criticisms which it did of the Claimant for that is an essential component of a finding of breach of the term of mutual trust and confidence as set out by Lord Steyn in Malik (below).
24. The Tribunal had acted perversely in that it failed to recognise the evidence relating to causation. That is, the Tribunal erred in law when it accepted the Claimant's case that the reason for his decision to leave was the conduct of the Respondent on 5 March; whereas the competing case of the Respondent was that he had all along been making plans to go and join Alan Mann, as he eventually did, and this was demonstrated by, for example, the taking of two flights for Alan Mann on 13 and 16 February 2007.
25. The Tribunal had abused the Respondent by failing to give it a proper opportunity to canvas findings which it made relating to the invoices submitted and the logs of both those flights. That offended the rules of natural justice and the judgment should be set aside for that reason alone.

The Claimant's case

26. On behalf of the Claimant, it is submitted that for the purpose of repudiation, communication of the acceptance is necessary. As the Respondent did not know of the flight on 8 March until some time later, the acceptance could not have occurred. If he was wrong about that, Mr Halliday submitted that the piloting of that flight on the day was not an unambiguous and unequivocal acceptance of intention to join Alan Mann and of acts inconsistent with the continuing relationship.
27. Mr Halliday was not called upon to deal with the proper and reasonable cause point and in respect of the perversity point he contended that the offence charged against the Employment Tribunal of failing to give the Respondent a fair crack of the whip could not be made out. The issue was plain. Did the Claimant leave in response to the events on 5 March or did he leave having already set plans to go and join Alan Mann? That was the essential, factual dispute to be resolved by the Employment Tribunal. It had the documents to do it and it simply accepted the Claimant's explanation and looked in detail at the documents produced. There was no breach of natural justice.

The legal principles

28. The legal principles to be applied in this case appear to emerge from the following authorities. An Employment Tribunal is under a duty to give reasons, see Meek v City of Birmingham District Council [1987] IRLR 250. The Employment Tribunal should not find against a party on an important point of its case unless it has been given an opportunity to deal with it. When allegations of perversity are made, a high threshold must be surmounted such that an overwhelming case must be made that the Tribunal got it wrong. See Yeboah v Crofton [2000] IRLR 634 (CA), a threshold which we observe has now been raised even higher following the Court of Appeal's judgment in London Borough of Hounslow v Klusova [2007] EWCA (Civ) 1127.

Discussion and conclusions

29. We prefer the arguments of the Claimants and have decided that the appeal should be dismissed. We will deal with the arguments which have been submitted to us in their sequence.

The date of termination

30. First, we accept of course from Mr Tolley, who was there, that he raised this point orally. The point is that the date of termination was 8 March. He makes criticisms of the Employment Tribunal which we consider to be unfair for he says in his written skeleton:

"Conspicuous by its absence is any analysis or mention of Atlantic's case that Mr Hoff had, by his own conduct, accepted any repudiatory breach which had occurred by that point."

That point is, plainly, 5 March 2007. There is no reference to that point being made in respect of the putative date of termination as 8 March 2007. One searches in vain in the written argument which Mr Tolley presented to the Employment Tribunal. The Tribunal cannot be blamed, and certainly not in the trenchant terms suggested here, for failing to deal with the point when it was raised only orally in the course of a very dense, written submission.

31. The Respondent's primary case was that the relationship came to an end on 5 March 2007. Thus, to put it neutrally, the Tribunal did not have in sharp focus the alternative submission now at the forefront of the sole submission that it was 8 March 2007. It cited only two candidates in its judgment, 5 and 14 March, and we can understand from the way in which it was presented that the argument did not receive intensive analysis.
32. Had it done so, it would have given further reasons. If we were unsure about this matter, we would have called for the Tribunal to give reasons. Neither party invited us to do so but this is a matter upon which, if the case turned upon it, we would have invited the Tribunal to give further reasons on the footing the point was made to it and it had not been answered.
33. However, an easier solution can be found. In State Trading Corporation of India Limited v M Golodetz Ltd [1989] 2 Lloyd's Rep 277, the Court of Appeal, Kerr LJ, said this in relation to the acceptance of repudiation:

"What is commonly referred to as an acceptance of a repudiation must be communicated to the party in breach or at least overtly evinced: (see e.g. Chitty on Contracts, 25th ed. vol. 1 par. 1598, Heyman v Darwins, (1942) 72 LI.L. Rep. 65 at p.68; [1942] A.C. 356 at p.361 and The Mihalis Angelos [1970] 2 Lloyd's Rep 43; [1971] 1 QB 164 explicitly at p.54, col. 2; p.204E per Lord Justice Megaw. The decision of the High Court of Australia in Holland v. Wiltshire (1954) 90 CLR 409 shows that an unequivocal overt act which is inconsistent with the subsistence of the contract may be sufficient, without any concurrent manifestation of intent directed to the other party."

34. That indicates that it will be sufficient for activity to occur without it being communicated so as to complete the acceptance of a repudiation. In an employment law context, the Court of Appeal decided the matter in London Transport Executive v Clarke [1981] ICR 355, in a majority judgment first given by Templeman LJ in the following way:

"If a worker walks out of his job and does not thereafter claim to be entitled to resume work, then he repudiates his contract and the employer accepts that repudiation by taking no action to affirm the contract. No question of unfair dismissal can arise unless the worker claims that he was constructively dismissed. If a worker walks out of his job or commits any other breach of contract, repudiatory or otherwise, but at any time claims that he is entitled to resume or to continue his work, then his contract of employment is only determined if the employer expressly or impliedly asserts and accepts repudiation on the part of the worker. Acceptance can take the form of formal writing or can take the form of refusing to allow the worker to resume or continue his work. Where the contract of employment is determined by the employer purporting to accept repudiation on the part of the worker, the tribunal must decide whether the worker has been unfairly dismissed."

35. Again, applying that in an employment context, Waite P and members, said this in Hindle Gears Ltd v McGinty [1985] ICR 111 EAT at 117:

"Mrs. Janet Smith had been successful however before the industrial tribunal in persuading the members that there was a conflict between that decision and the decision of the Court of Appeal in London Transport Executive v. Clarke [1981] I.C.R. 355. She has failed to persuade our own appeal tribunal that there is in reality any conflict between the two decisions. There are certainly passages in London Transport Executive v. Clarke which indicate that acceptance by one party to a contract of employment of an act amounting to repudiation by the other party need not be expressed in terms: any overt act will suffice from which the acceptance of repudiation may be inferred. That is very far from saying, however, that an uncommunicated decision to dismiss an employee is sufficient to effect a dismissal. Communication of the decision in terms which either bring it expressly to the attention of the employee or give him at least a reasonable opportunity of learning of it is in our view essential."

36. In our judgment, the law is that it is not necessary to communicate acceptance. Take a simple example: If, on 8 March 2007, the Claimant had signed a two year contract as an employee with Alan Mann to dedicate his exclusive services to that company, that would be an act inconsistent with being an employee even if the Respondent did not know about it. The judgment in STC is binding upon us and employment contracts appear to be no different: it is possible for acceptance to take effect by the act of an employee without it being communicated.
37. What is important is that it must be unequivocal and unambiguous and in this we accept the submission made in the alternative by Mr Halliday which is, on the material here, there was no such acceptance. He gave an example of an employee moonlighting. A person who has skills may often be able to use them outside of working hours to earn more money. By doing so, they are not breaking the contract. They are, actually, wishing to continue to affirm the principal contract but in their own time to make some money on the side. That, in itself, is not an unequivocal act of repudiation or calculated to bring the contract to an end.
38. In this case, the history of the relationship with Mr Kirby and Alan Mann indicated that the Claimant did undertake flights for Alan Mann which were attributable to Atlantic. During the period when he was, as he put it, "in no man's land", the taking of that single flight for Alan Mann could not be said to be unequivocal acceptance of the repudiation. Paragraph 106 (para. 18 above) contains a sufficient factual basis for that conclusion. He was in the hands of his solicitor. His solicitor was giving him advice. He was not clear where he stood. The advice enured into a letter of 12 March 2007 which contained the Claimant's resignation. That was the date found by the Employment Tribunal. The assessment of the Claimant's conduct on 8 March in para 106 is a permissible finding of fact.
39. As we say, this point was not strongly argued by Mr Tolley at the Employment Tribunal and we consider that that correctly places it in perspective. It did not merit a written argument and it was not a correct argument on the facts of this case.
40. So, the only alternative proposition is 14 March and that was the finding of the Employment Tribunal which we uphold.

Reasonable and proper cause

41. In Malik v BCCI [1997] IRLR 462, HL at para 54. Lord Steyn said that there is:

"an obligation that the employer should not ... without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee."

42. We accept Mr Tolley's submission that the words "without reasonable and proper cause" are an integral part of the formulation of the implied term and in considering whether it has been broken. The criticism made of the Employment Tribunal is that it is not clear whether it was the imputation to the Claimant that his performance was not up to scratch at the meeting on 5 March or the way in which the meeting was conducted which caused the Claimant to leave. We reject that submission.
43. The Employment Tribunal has made it clear (see paragraphs 107 and 108) that it was the conduct of Mr Kirby at the meeting which so offended the Claimant. We have mentioned the kind of language used and the shock it caused to the Claimant. The finding by the Tribunal on the evidence which it had was open to it. It is not that Mr Kirby did not have reasonable and proper cause to put to him criticisms of the handling of the refurbishment of the Dauphin. It is that he had no reasonable and proper cause to conduct the meeting in the way he so offensively did. So we reject the criticism of the Employment Tribunal on this ground, which is dismissed.

Perversity

44. We then turn to the third proposition: perversity. These submissions were based upon the intention to disengage the reason for the Claimant's leaving from the findings by the Employment Tribunal. In short, it was the Respondent's case that the Claimant did not leave in response to the abuse that he suffered on 5 March 2007 but had all along been planning to leave and that was the reason why he left. This argument cannot coexist with the submission that the Claimant on 8 March accepted the repudiation committed on 5 March, but we will deal with it anyway.
45. In our judgment, the exercise being conducted here is precisely that which Mr Halliday, on authority, cautions the EAT against. Whatever tool is used, whether it is a fine toothcomb or a microscope, none has a place here. See, for example, the judgment of Waller LJ, in W & J Sass Ltd v Binns [1982] IRLR 283 (CA) paragraph 11, Yeboah v Crofton [2002] IRLR 634 CA and numerous other cases cautioning the EAT against raking through the judgment of an employment tribunal to find some issue of fact.
46. We accept in full the submissions of Mr Halliday responding in a detailed critique to what is said to be perversity. We called for oral submissions from Mr Halliday on only one point which was said to be the natural justice point, that the Respondent was not given an opportunity to deal with what became the findings of the Employment Tribunal relating to the timing of the two contested flights on 13 and 16 February. It will be recalled that the Tribunal, in very detailed findings, dealt with those two flights (it did not deal in such detail with the flight on 8 March because the point was not properly advanced).
47. In respect of those two flights, the criticism of the Employment Tribunal made on behalf of the Respondent is that the Tribunal has come to its own conclusions. We reject that. The Tribunal had before it the details of the timings. Essentially, what is being criticised is an inference drawn by the Tribunal as to why it accepted the Claimant's explanation. His explanation was that he was happy working with the Respondent and his reason for leaving was what he said it was, the 5 March meeting, and was not because of a plan to go and join the competition.
48. Mr Halliday is correct when he points out four pieces of evidence, that is, the Claimant had previously flown for Alan Mann; he was nevertheless enthusiastic to stay with the Respondent; he had notes relating to his preparation for the meeting indicating that; and the evidence of Mr Hodgkinson was to that effect too.
49. With those facts in mind, the Employment Tribunal was entitled to conclude that the Claimant was not taking advantage of a pretext on 5 March to leave and to carry out his deep-seated plan to go and join Alan Mann. The Respondent was given ample opportunity to make submissions about this matter. Essentially, it had to find what was in the Claimant's mind as to the reason for his leaving on 14 March and there was ample material before the Tribunal to come to the conclusion which it did.
50. In those circumstances, the very high threshold demanded by the Court of Appeal for perversity appeals to succeed has not been surmounted by the careful arguments of Mr Tolley who advanced essentially the arguments he had advanced below about the two flights.
51. We would very much like to thank both Counsel for their helpful submissions today and in writing and, again, to Employment Judge Corrigan for responding so quickly. It is also right to note that of the 700 extra pages placed before us today, we have been referred to three.
52. The Appeal is dismissed. Appellant to pay costs in part. Permission to appeal refused for the following reasons after further written submissions.

Permission to appeal

53. Permission to appeal is refused. Atlantic acknowledges that it must succeed on acceptance (ground 1) and grievance (ground 2). The ET did not need to decide ground 2 but gave a view against Atlantic. Despite firm case management, ground 2 was not reached at the EAT. There is no order of the EAT overturning the ET on ground 2, and so the application to the CA is on two hypotheses. There is no prospect of success without ground 2 which is not available.
54. Atlantic does not now maintain that the Claimant resigned on 5 March or challenge the finding that by its abuse of the Claimant it repudiated the contract of employment on 5 March. The ET found the Claimant accepted that on 14 March. There is no challenge now to the finding that the constructive dismissal was unfair, if 14 March is the correct date.
55. The EAT accepted Atlantic's argument, not advanced in writing or with relevant authorities (STC) at the ET, that acceptance can be effected by an unequivocal overt act inconsistent with the subsistence of the contract. Atlantic's continued reliance on what the Claimant said in evidence cannot survive the Employment Judge's answer "No" with reasons to the specific question. The application does not challenge the EAT's practice that such note is conclusive: Dexine.
56. The ET did not need to make a finding on Atlantic's alternative case for 8 March, not advanced in writing, but it did so. The finding that the Claimant did not unequivocally accept the repudiation when he flew for Munn on 8 March was a finding of fact. Perversity is not alleged. Examination of whether an intention to break a contract is evinced is highly fact sensitive. Where an act is to be placed on a scale ending in "unequivocal" is a question of degree. Entry to, and exit from, the EAT is via questions of law.
57. There is no real prospect on ground 1, nor a compelling reason for this factual issue to merit the attention of a court of this stature in the judicial hierarchy: Clark v Perks [2001] 1 WLR 17, nor for it to abandon the caution and modesty of its approach to a second appeal from unanimous specialist tribunals at first instance and appeal Cooke v Commissioner [2002] 3 All ER 279 per Hale LJ.

Costs

In the sequence argued by Atlantic, applying rule 34, "unreasonable conduct" and "misconceived appeal":

1. The Claimant is entitled to the costs claimed from him by his solicitors. They could recover them from him.

2. The appeal as sifted was not misconceived. HHJ Birtles was right to order it on the material then before him.

3. Atlantic acted unreasonably in the preparation thereafter. The dense dispute about evidence was largely inconsequential and resolved in favour of the Claimant. The supplemental bundle was hardly used. A merits rethink should have been done after the Employment Judge replied especially on question 1. These were answers to Atlantic's questions. The EAT was not asked to frame the questions, as it ought. No proper view of the time estimate was ever taken.

4. On the material before us it cannot be said that Atlantic unreasonably pressurised the Claimant by superior legal resources.

5. The correct award is for a proportion of the pre-18 March preparation and a significant proportion of the costs thereafter in the EAT, excluding the separate regime for Employment Tribunal costs. This was not disproportionate, subject to para 3. There was no impermissible duplication.

The Claimant's case pursuant to para 3 is accepted in part. Atlantic will pay £2000 plus £350 VAT to the Claimant by his solicitors.