United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0438/12/GE

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

At the Tribunal

On 14 October 2013

 

 

Before

HIS HONOUR JUDGE HAND QC

(SITTING ALONE)

 

 

 

 

MR E EKWELEM APPELLANT

 

 

 

 

 

 

EXCEL PASSENGER SERVICE LTD RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR P J KIRBY (One of Her Majesty’s Counsel) (Appearing through the Free Representation Unit)
For the Respondent	MRS T ROSELL (Representative) Citation Ltd Brunswick Court 2-4 Brunswick Street Newcastle under Lyme Staffordshire ST5 1HH

 

 

SUMMARY

UNLAWFUL DEDUCTION FROM WAGES

UNFAIR DISMISSAL – Reason for dismissal including substantial other reason

 

The Employment Judge had not specifically addressed the period when apparently the Appellant had been willing to carry out part of his duties and had wrongly concluded that Miles v Wakefield [1987] IRLR 193 disposed of the unlawful deductions claim for those weeks.  That error was also reflected in her disposal of the issue of dismissal; her primary conclusion that there had been no dismissal was untenable (Geys v Société Générale [2013] 1 AC 523) and made an impact on the issues dependent upon that.  Remitted for re‑consideration in accordance with the terms of the Judgment.

HIS HONOUR JUDGE HAND QC

 

1.              This is an appeal from a reserved Judgment of Employment Judge Balogun, sitting alone at London South on 10 May 2012, the written Judgment having been sent to the parties on 21 May 2012.  She dismissed both the claim for unlawful deduction from wages and the claim for unfair dismissal, the latter on the basis that there had not been a dismissal, although she held, in the alternative, that if there had been a dismissal it would have been unfair but that there would have been contributory fault on the part of the Claimant to the extent of 100 per cent.  The Appellant, the Claimant below (and hereafter I shall refer to him as “the Claimant”), has been represented by Mr Kirby QC under the auspices of the Free Representation Unit.  The Respondent has been represented by Mrs Rosell of Citation Ltd, a consultancy acting on behalf of the Respondent.  She appeared at the Employment Tribunal.

 

2.              As a result of a preliminary hearing by Langstaff J, the President of this Tribunal, on 27 February 2013 permission was granted to amend the grounds of appeal.  Some confusion has arisen in relation to the amended grounds of appeal.  The Claimant submitted his own amended grounds at pages 13‑18 of the appeal bundle, but these may not accord with the permission proposed by the President in his Judgment on the preliminary hearing.  As a result of the Free Representation Unit appreciating that may be so, further amended grounds were submitted; these are to be found at pages 11 and 12.  As I understand it, permission may not have been granted for the amendment, and if that is correct, I grant it now, on the grounds set out at pages 11 and 12; I shall not give permission for the more extensive grounds in the Claimant’s proposed amendment.

 

3.              The amended grounds at pages 11 and 12 of the appeal bundle contend that the Claimant was ready and willing to work between 2 September 2010 and 8 October 2010 and therefore the Employment Tribunal misdirected itself and/or erred in law in failing to allow the Claimant unpaid wages for that period.  Secondly, it is contended that, given that the Claimant was entitled to be paid for that period, the Employment Tribunal erred in accepting that the demand by the Claimant for payment of wages in that period amounted to a resignation or some other substantial reason for a dismissal to which the Claimant had caused or contributed 100 per cent by his conduct.  The Employment Tribunal had therefore erred in law by treating the demand for payment of unpaid wages and the failure to attend work by 12 September 2011 as a resignation.  Given that the Claimant was entitled to demand payment of wages, his failure to attend work cannot have amounted to a resignation, nor could he be held by his conduct to have caused or contributed to his dismissal.  This gives rise to the need for some care in determining the terms of any remission in the event that the appeal succeeds, something to which I shall return in due course.

 

4.              The Claimant was employed as a driver and vehicle supervisor in the Respondent’s business, which provides passenger transport services to vulnerable groups.  On 14 July 2010 he was suspended on full pay following a complaint from a client of inappropriate conduct towards her autistic daughter.  These allegations were referred to the police, and ultimately the Claimant was charged with criminal offences.  As a result of the intervention by the police the Claimant’s Public Carriage Office licence (PCO licence) was revoked by the Public Carriage Office.

 

5.              The terms upon which the Claimant was employed by the Respondent had been the subject of some controversy.  Initially, the Claimant had been employed as a part‑time passenger driver under the Respondent’s terms and conditions of employment, which appear at page 69 of the bundle.  His employment was said there to be:

 

“[…] for the term‑time only, during specified weeks of the year and in accordance with school term‑times and ends on the last school day of the academic year 2010.”

 

6.              At paragraph 7 of the terms and conditions, which is subheaded “Hours”, the following appears, at page 70 of the appeal bundle:

 

“Your inclusive working hours are variable between 0 to 20 hours per week on an as and when required basis.”

 

7.              As I understand it, the Claimant worked under this contract until January 2010, when his position changed to that of vehicle supervisor, with effect from 5 January 2010 (see the letter of appointment dated 18 March 2010 at page 74 of the appeal bundle).  Although the Claimant’s employment continued to be governed by the terms of the employee handbook, according to that letter, there was either a change to those terms or an additional set of terms.  The following appears in the letter (see page 74 of the appeal :

 

“Your appointment is subject to the following conditions:

[…] 3. Your rate of pay is £7.50 per hour for a maximum of 45 hours per week.  These hours include your driving time as well as time allocated for vehicle supervision.”

 

8.              Although in the course of submissions views have differed as to how these documents are to be construed, and although there appears to be a suggestion as a result of a combination of an assertion in the ET1 form and the acceptance of it in the ET3 form that on average the Claimant worked for 40 hours per week (compare pages 32 and 41 of the appeal bundle), the Respondent argues that the true position is that there was no requirement to provide work under the contract.  I shall return to that submission in a moment.  I think it is, however, common ground that neither in the contract of employment nor in the employee handbook are there any provisions expressly empowering the Respondent to suspend without pay.

 

9.              On 2 September 2010 the Respondent wrote to the Claimant (see page 75 of the hearing bundle).  The second and third paragraphs of that letter read:

 

“Your suspension from work is now lifted with immediate effect and as from 1^st September 2010 you will be on unpaid leave, until further notice.  As a result of your PCO licence being revoked by the Public Carriage Office you are unable to fulfil your contractual duties and are instructed not to attend work or make contact with any employees from Excel Passenger Services Ltd.

After your court case has been resolved, I will be permitted to carry out our own internal investigation with regard to the allegations made against you, during which time you will be re‑suspended, if appropriate.”

 

10.          My attention has been drawn to the email at page 76 of the appeal bundle.  This is timed at 2200 hours on 28 September 2010 and is from the Claimant to the managing director of the Respondent.  It is not referred to at all by the Employment Tribunal in the Judgment, and therefore I am hesitant about the extent to which I should deal with it at all.  I mention it because it plays a significant part in Mrs Rosell’s submissions.  It is a relatively long email, and I do not propose to set its contents out.  Suffice it to say that Mrs Rosell submitted that it provided an evidential basis for the submission that the Claimant was refusing to perform any part of the duties required of him by the contract of employment or by a combination of the terms and particulars of employment and the subsequent letter of appointment.

 

11.          The Employment Tribunal found that on 8 October 2010, which was the day that the Claimant was committed for trial, he attended the Respondent’s office and met the managing director, who told him that he could resume the vehicle supervisor part of his job if he wished, although he could not drive.  The Claimant refused that offer, stating that he no longer wished to work with vulnerable people and had a job elsewhere.  Part of the Judgment of Employment Judge Balogun is taken up with considering the factual controversy surrounding this alleged meeting as well as a number of disputed documents.  There is no need for me to go to it in detail.  Suffice it to say that Employment Judge Balogun plainly accepted in her findings of fact at paragraph 8 that the Claimant had been told he could resume the vehicle supervisor part of his job and that he had refused the offer.  I pause in the narrative of the factual history to observe that has proved to be something of a defining moment in terms of the case, although it is apparent from the reserved Judgment it does not appear to have been regarded as such by Employment Judge Balogun.

 

12.          In the period that followed the meeting of 8 October 2010 the Respondent attempted to contact the Claimant at regular intervals but without success until 17 July 2011, when the Claimant himself wrote to the Respondent informing it of the fact that he had been found not guilty and his PCO licence had been reinstated.  The Respondent replied on 5 August 2011 stating that he should be able to return to his contract in the role of driver and vehicle supervisor.  On 8 August 2011 there was a meeting between the Claimant and the Respondent at which the Claimant said that he no longer wished to work as a vehicle supervisor nor did he wish to work with vulnerable adults.  This is found as a fact at paragraph 12 of the reserved Judgment.  The Claimant was, however, encouraged to give the matter further thought but was asked to indicate within seven days whether or not he wished to return to his substantive role.  He did not reply personally.  A letter was written on his behalf by Fulham Legal Advice Centre on 24 August 2011 asserting that there had been an unlawful deduction from his wages between 1 September 2010 and 8 August 2011 by suspending him without pay.  It should be noted that the Respondent had never used the term “suspension without pay”.  As will be seen from the letter of 2 September 2010 quoted above, the expression the Respondent had used was “unpaid leave”.  It seems to me that there is no real distinction between the two different ways of putting it.  This is purely a matter of semantics.

 

13.          Returning to the letter of 24 August 2011, it was asserted in that letter that the Claimant would not feel comfortable going back to work until he had been paid for the period between 1 September 2010 and 8 August 2011, although by then there was a further period, and I infer that the claim was continuing.  The Respondent refused to pay for whatever period was under consideration and asked the Claimant to state what his intentions were with regard to returning to work by 2 September 2011.  He replied through his legal representative, saying that he would not return to work until he was paid in respect of the period of the unpaid suspension, which must by then have extended into September.  The Respondent refused.  All this is dealt with in quite adequate detail by Employment Judge Balogun in paragraphs 14, 15 and 16 of her Judgment.  On 26 September 2011 the Respondent wrote to the Claimant, stating that since he had not returned to work or indicated that he would do so it was assumed by the Respondent from that lack of response that he had resigned (see paragraph 17 of the Employment Tribunal’s decision, which describes the matter in these terms):

 

“The Claimant did not respond to the letter and on 26 September 2011, the Respondent wrote to the Claimant stating that it assumed from his lack of response that he did not wish to return and had therefore resigned.  He was advised that his resignation would be processed from that date and his P45 sent in due course.”

 

14.          On 3 October Fulham Legal Advice Centre wrote back, asserting that he had been unfairly dismissed.  On 12 October the Respondent wrote to Fulham Legal Advice Centre disputing that and saying that if he wished to return he should say so and he would be reinstated; he did not respond.

 

15.          The Employment Judge recorded that the Respondent made “written submissions”.  The Claimant, who had represented himself at the hearing, was said to have made “very limited oral submissions”.  There follows in the Judgment three paragraphs under the heading “Conclusions”.  Paragraph 21 is central to the determination made on all the issues.  It deals with the unlawful deductions claim, but, as I shall explain in a moment, everything in fact turned on that finding.  She expressed herself in this way:

 

“The Claimant was not entitled to be paid for the period claimed.  Wages are remuneration that must be earned and are therefore dependant on performance, unless the contract provides otherwise.  Miles v Wakefield Metropolitan District Council [1987] IRLR 193.  There was no provision in the Claimant’s contract entitling him to be paid during periods when he was unavailable for work except during holidays.  The Claimant was unable to carry out his contractual role while his PCO licence was revoked nor was he willing to give part performance.  Once his licence was reinstated, the Claimant was unwilling to resume work unless he was reimbursed for the unpaid suspension period.  As the Claimant was not entitled to be paid for the suspension period, it was unreasonable for him to impose such a condition and the Respondent was entitled to conclude that the Claimant was unwilling to perform his contractual obligations.  In the circumstances, the unlawful deduction of wages claim fails.”

 

16.          She then turned at paragraphs 22 and 23 to deal with the issue of dismissal.  She accepted that there had been no express resignation, but her analysis was that he had resigned in effect by his conduct of making it clear that he did not intend to resume work and, moreover, his legal representatives had made it clear he would not return to work unless he was reimbursed for the period of unpaid suspension.  He had not responded to the request to make his intentions clear.  Therefore, she said at paragraph 22, “it was reasonable for the Respondent to treat his conduct as a resignation”.  Accordingly, she concluded, the unfair dismissal claim failed.

 

17.          At paragraph 23 she approached the matter on an alternative basis that if she was wrong in her conclusion at paragraph 22, then the Claimant must have been dismissed by the letter of 26 September 2011, and that would have been a dismissal for some other substantial reason based on the genuine belief that he had resigned.  It was an unfair dismissal, she concluded, because the Respondent had failed to make clear what the result might be if the Claimant did not respond to the request for clarification as to his intentions.  As she put it, his employment would be at risk.  That, she concluded, was not a fair way to dispose of the matter.  On the other hand, however, she concluded his conduct contributed 100 per cent to the dismissal because he had refused to return to work and failed to make his intentions known.

 

18.          Mr Kirby submitted that there was no contractual provision permitting suspension without pay or unpaid leave operative in the period between 1 September 2010 and 8 October 2010.  There was simply no provision for such a course of conduct in any of the documents that taken in isolation or read cumulatively could be construed as constituting the contract of employment.  Nor could the Respondent rely on the argument, never put to the Employment Tribunal, submitted Mr Kirby, that this was a zero‑hours contract as a result of which there was never any obligation to provide work in the first place.  If there is no obligation to provide work, then it can scarcely be said that there is any breach of contract on the part of the employer, and there can be no question of unlawful deduction from wages by not paying because the contract does not require work to be provided and if not provided, does not provide for it to be paid for.  Mr Kirby submitted that this was a new point that had not been taken below and the Respondent was not entitled to take on appeal.

 

19.          Alternatively, if the Respondent was permitted to argue the point, whatever might have been the position under the original contract when the Claimant was appointed as a driver, it had been varied upon his appointment as a driver supervisor, and the true construction of the phrase “a maximum of 45 hours per week” must be that the Respondent is obliged to provide some work up to that maximum and the Claimant obliged to do work up to that maximum number of hours per week, not that the Respondent was under no obligation to provide work at all.

 

20.          In his written submissions Mr Kirby addressed another point that had been made in the written submissions of the Respondent, namely that a claim in respect of unlawful deductions ending on 8 October 2010 was out of time.  This was not, he submitted in his written submissions, a sound argument, because it ignored two important matters.  Firstly, the complaint being made was in respect of a series of deductions or payments, and even if the later deductions were held to have been lawful, that could not disqualify the Claimant from relying upon the earlier deductions, which should have been found to be unlawful.  Secondly, had the point been raised, it must have been not “reasonably practicable” for the complaints to have been made in time when the Claimant wrongly believed that the whole series of deductions was unlawful.

 

21.          In her oral submissions Mrs Rosell did not address this point, but immediately before I embarked on this Judgment she clarified her position, which was that the point was still live but she wished to stand on her skeleton argument.

 

22.          The Employment Tribunal had relied on the Judgment of the House of Lords in Miles v Wakefield Metropolitan District Council [1987] IRLR 193, but, Mr Kirby submitted, that case was distinguishable.  He referred me to Lord Brighton’s concept of “unavoidable impediment to which special considerations apply” (see page 383B‑C of his speech) and Lord Templeman’s similar concept of “other circumstances which may be governed by express or implied terms or by custom” (see page 391F).  Employment Judge Balogun had failed to consider whether or not an unavoidable impediment had arisen in this case.  There is little authority on the subject.  Mr Kirby drew my attentions to Burns v Santander UK PLC [2011] IRLR 639 and paragraph 12 of the Judgment of the division of this Tribunal presided over by HHJ Peter Clark, which referred to being remanded in custody on charges, some of which led to conviction, as being:

 

“[…] an avoidable impediment giving rise to circumstances where it was to be implied that he was not entitled to his wages for the relevant period under the work/wage bargain that was the contract of employment.”

 

23.          An issue similar to the current one was also considered on a preliminary hearing by HHJ Jeffrey Burke QC in Kent County Council v Knowles UKEAT/0547/11, but the issue there would have been whether it was reasonably arguable at a full hearing, and Mr Kirby was suitably modest about the claims that could be made for the careful analysis made by the learned Judge in that case.

 

24.          The position here both as a result of remarks made by the President on the preliminary hearing of this appeal and as a matter of principle is that the entitlement to be paid could not have continued beyond the finding made by Employment Judge Balogun that on 8 October 2010 the Claimant had refused to perform the contract by indicating that he was not ready and willing to carry out the supervisor’s function.  Mr Kirby accepted that position.  But before then, in the period, whether it be described as a precedent period or an interim period, after the suspension with pay had ended on 31 August 2010 and before 8 October 2010, there was no indication on the part of the Claimant about his willingness to carry out the work of driver, of course subject to the disability that he no longer had a PCO licence, or his inability or unwillingness to carry out the work of the supervisor.

 

25.          As it turned out, submitted Mr Kirby, none of these matters was the fault of the Claimant.  He had, after all, been acquitted.  So, the case was distinguishable from Burns and just as arguable as the case of Knowles.  This was something that Employment Judge Balogun had not addressed at all.  Mr Kirby submitted she had treated the period after the ending of the suspension with pay as a continuous and unitary period whereas in reality it should have been split up into two different periods.  In relation to the first of those, between 1 September 2010 and 8 October 2010, there were no findings of fact and no evidence as to the position of the Claimant.

 

26.          On the question of dismissal, in his written skeleton argument Mr Kirby had drawn attention to the Judgment of the Supreme Court in Geys v Société Générale [2013] 1 AC 523, where the Supreme Court reaffirmed the principle that a repudiatory breach cannot of itself terminate a contract without the innocent party accepting that it has done so.  On reflection, however, in his oral submissions Mr Kirby, in my judgment quite rightly, shifted his ground somewhat by submitting that this was really not a case of an accepted repudiation at all but simply an issue as to whether the letter of 26 September could or could not be construed as a resignation.  To conclude that it was a resignation was, he submitted, an erroneous conclusion.  The letter, when its terms are considered, is clearly a termination.  It says, in terms, that the P45 will be sent.  It should have been treated by Employment Judge Balogun as a dismissal.  If that was the right analysis, her primary conclusion was erroneous and her alternative conclusion was likewise wrong, because it was, as the President put it, parasitic upon the correctness of the conclusion about unlawful deductions.

 

27.          If the Respondent was not entitled to deduct wages or at least all of the wages in the period between 1 September 2010 and 8 October 2010, then the conclusion that the dismissal must not only be unfair but was entirely the Claimant’s fault could not stand.  So, Mr Kirby submitted that the right solution to this part of the problem was that the finding there had been a resignation should be quashed and the case should be remitted to consider, on the basis that there had been an unfair dismissal, the alternative decision being preserved, to what extent the Claimant might have caused or contributed to it by his conduct.

 

28.          Mr Kirby accepted that the terms of remission should be narrowly confined.  Mrs Rosell, by contrast, submitted that if the matter was to be remitted, then in effect the whole matter should be opened up if not a for complete rehearing at least a hearing in which a substantial amount of evidence might be called.  Her submissions were illuminated by the fact that she had been present at the Employment Tribunal.  She said that the zero‑hours point had been raised before the Tribunal.  I am bound to say I find it most curious that the matter is not adverted to at all in the ET3 form, nor does it appear to me to be given any recognition in the Judgment of Employment Judge Balogun.  Were it necessary to do so, I would take the view that it is very open to question that this issue was ever debated in this form.  Whatever deficits I might identify in the Employment Judge’s reserved Judgment, it seems to me that she has squared up to all the issues, and, I repeat, I find it very surprising that she does not mention this issue at all if it was raised.  I do not construe paragraph 21 of the Judgment and the reference to part performance at paragraph 21 of the Judgment as indicating that this was an issue that Employment Judge Balogun had in mind.  There is no Respondent’s notice and no cross‑appeal, and if the learned Judge ignored the arguments that were raised, then it seems to me that I can do nothing about it.  Mr Kirby, with some hesitation, because this was material that was not included in the bundle, referred to a written submission from the Respondent that he understood had been presented to the Employment Tribunal that did not raise this issue.  Mrs Rosell said that there had been an additional submission made in writing to the Tribunal.

 

29.          It is all very troubling, but it does not seem to me that I need go any further to go to the bottom of it.  I do not accept that the contract under consideration, upon a proper construction of the letter of March 2010 and the particulars of employment to which I have referred, left the position as submitted by Mrs Rosell in her argument.  It does not seem to me that the later document is open to be construed as leaving in place the zero hours to which the earlier document referred.  I would think that one or other of these two constructions is open: either the two documents were intended to sit side by side so that the Claimant remained employed under the driver’s contract, if I could call it such, under which he was not entitled to be provided with any work and alongside that he was employed under the supervisor’s contract, which, in my judgment, should be construed as requiring him to be provided with work up to a maximum of 45 hours and obliging him to do work up to a maximum of 45 hours; or, in the alternative, which I am inclined to favour, that the earlier contract was subsumed into the later contract so that although he may have been obliged to do driving work from time to time he was in fact employed thereafter as a driver/vehicle supervisor on the terms that his maximum hours were 45 hours per week.  The remuneration is a curiosity.  Under the earlier terms and particulars, he was to be paid £8.50 per hour; under the supervisor’s appointment letter, he was to be paid £7.50 per hour.  Perhaps an analysis of his payslips might cast some light on it, although of course questions of interpretation of a contract cannot be governed by subsequent events.

 

30.          What I am very clear about is that Ms Rosell’s analysis that the only way in which the contract could be construed after the letter of appointment as a supervisor is that the contract was for 0 to 45 hours is not a permissible construction.  It simply does not arise on the rubric of the letter of appointment, which, in my judgment, must have been the predominant document constituting the contract.  It does, of course, refer to the existing terms and conditions, but I conclude that it replaced the zero‑hours aspect of the earlier contract.  Accordingly, this is not an issue that could ever have arisen, and so it may not be necessary for me to reach a conclusion as to whether it did or did not, although I have set out above my reasons for thinking that it is very unlikely it was placed before the Employment Tribunal.

 

31.          As to limitation, perhaps a point I should have dealt with first, I accept Mr Kirby’s argument.  I should also observe that this does not appear to have been a point raised before Employment Judge Balogun.  Certainly, she does not deal with it in her Judgment.  But it does not seem to me to be a valid point, for the reasons advanced by Mr Kirby.  A series does not cease to be a series because on analysis and on judgment it is concluded that some part of it is not lawful.  This was asserted to be a continuing act, and, in my judgment, it was a continuing act.  The fact that the Claimant cannot succeed on some part of it does not mean that the case was time‑barred.  I think it is extremely difficult to wrestle with concepts of reasonable practicability, given that the Employment Judge made no findings of fact about that at all, but it is not necessary for me to do so, having regard to my first conclusion on the issue.

 

32.          Nor, in my judgment, did the Employment Tribunal find that there was a complete failure to perform, or a complete unwillingness to perform, in the period 1 September to 8 October.  Once again, I think that Mrs Rosell’s submissions place far more weight on the statement by Employment Judge Balogun in paragraph 21 relating to part performance than it can bear; or, on its proper construction, it should bear.  In my judgment, the reference to part performance means exactly what it says; whatever the deficits in this Judgment, Employment Judge Balogun plainly addresses matters in straightforward terms.  She cannot be construed as meaning complete performance when she uses the term “part performance”.  In my judgment, at paragraph 21 she was plainly referring to the situation after the meeting of 8 October 2010 at paragraph 21 of the Judgment, and I reject Mrs Rosell’s interpretation of a complete failure to perform throughout the period.

 

33.          That means, to my mind, that in respect of the period 1 September to 8 October Employment Judge Balogun’s analysis depends entirely on Miles.  It depends entirely on the concept that lies at the heart of Miles.  During the course of argument there has been some considerable discussion as to the jurisprudential basis of that Judgment.  In the Burns case the division of this Tribunal presided over by HHJ Peter Clark, as it seems to me, plainly adopted an analysis of an implied term.  It is open to question whether that analysis does or does not lie at the heart of Miles.  But it does not seem to me necessary to go into the matter.  In my judgment, whether the right way to look at this is a total failure of consideration or the breach of an implied term, the error here was that Employment Judge Balogun plainly considered the whole period but failed to consider the period between 1 September and 8 October as a separate period in which the question was whether the Claimant had been willing to perform some part of his obligations and whether on a factual analysis and as a matter of construction of contract willingness to perform part of the contractual obligation would require the employer, the Respondent in this case, to pay him.  The error was that Employment Judge Balogun considered this issue of, as she put it, part performance in relation to the whole of the period when, quite clearly, the issue should have been split over the period after suspension with pay ended and before the Claimant had indicated his unwillingness to carry out the contractual functions on 8 October.  The Judgment is silent upon and does not deal with the interim period; in my judgment, it should have done.  Employment Judge Balogun should have realised that different considerations might apply to the earlier period I have described as the interim period.

 

34.          Nor does it seem to me that her decision that the Claimant had resigned can stand.  At paragraph 22 of her Judgment she said that he had not expressly tendered his resignation but by his conduct he had made it clear that he did not intend to resume work.  He had also said that he would not return unless he was reimbursed for unpaid suspension.  That clearly resulted in the letter of 26 September and in his being sent his P45.  This was not a resignation by the Claimant; it was a dismissal by the Respondent.  Employment Judge Balogun should have so found, and she erred in law when she did not.  Therefore, I will allow the appeal against her conclusion that there was no dismissal.  There has been a difference of view as to whether or not the finding in the alternative of unfair dismissal can stand.

 

35.          I take the view that it ought to.  It seems to me that this is a case that falls into a narrow compass and should remain so confined.  Not only does that seem to me to do justice as between the parties but it takes account of the administration of justice.  Nowadays, courts and Tribunals look not simply at the issue before them but at a broader perspective.  If this case goes back for extensive factual investigation, it will intrude itself into a busy list full of other litigants wishing to have their problems disposed of.  In my judgment, it is necessary to keep this case in a proper perspective.  Accordingly, I shall not disturb the finding of unfair dismissal, but it seems to me that the subsequent finding of 100 per cent contribution cannot stand; as the President put it, it is parasitic on the conclusion that the Respondent was entitled to refuse payment in respect of any period after 1 September 2010.  For the reasons stated above, I have concluded that was not a sound analysis, or at least may not have been, and in those circumstances, since I propose to remit that issue and since the question of contributory fault is dependent upon the outcome of that issue, I will allow the appeal in relation to that aspect of Employment Judge Balogun’s reasoning and remit that aspect also for reconsideration.

 

36.          I do not, for the same reasons I have just articulated, think that the kind of broad remission proposed by Mrs Rosell is appropriate in this case.  Accordingly, I shall allow the appeal to the extent that the finding there was not an unlawful deduction will be quashed and the finding that there was a resignation will be quashed.  That will leave the matter of the period between 1 September and 8 October and the question of contributory fault to be investigated.  I propose to make this order: that the matter is remitted to a differently constituted Employment Tribunal to investigate, if necessary by hearing evidence, whether the Claimant was willing to perform the duties of supervisor or the duties of driver, subject to the revocation of his PCO licence, in the period 1 September 2010 to 8 October 2010; and to consider the issue of contributory fault in relation to any basic or compensatory award in the light of the findings subsequently made by the differently constituted Employment Tribunal as to his willingness to perform those duties in that period and in the light of his demand for unpaid wages in respect of the longer period 1 September 2010 to 26 September 2011.

 

37.          In defining the terms of the remission in that way, I have accepted Mr Kirby’s submission that this is a matter that ought to go to a differently constituted Employment Tribunal.  I have taken account of the Judgment of this Tribunal in Sinclair Roche & Temperley v Heard [2004] IRLR 763, a familiar authority.  I am concerned that this would be a second bite of the cherry and that it would be better, given the outcome on the first occasion and given the fact that this is a limited further factual investigation not at all touched upon by the previous Employment Judge, that it should go to a differently constituted Employment Tribunal.  Accordingly, I shall make an order in those terms.