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Appeal No. UKEAT/0069/10/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24 June 2010

Before

HIS HONOUR JUDGE PETER CLARK

MRS R CHAPMAN

MR C EDWARDS

MR R HUSSEY (APPELLANT)

PHOTOGENIC LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS ANNA MACEY
Free Representation Unit
289-293 High Holborn
London
WC1V 7HZ

For the Respondent
MR TONY LAKE
Managing Director
Photogenic Ltd
Unit 7, Parc Hafren Business Park
Llanidloes
Powys
SY18 6SG

UNFAIR DISMISSAL – Constructive dismissal

Employment Tribunal entitled to conclude, on their findings of fact, that Claimant had resigned from the employment in circumstances which did not amount to constructive dismissal and had not been dismissed by his employer.

1. The critical question in this appeal is whether the Shrewsbury Employment Tribunal was wrong in law in concluding that the Claimant, Mr Hussey, resigned his employment with the Respondent, Photogenic Ltd, in circumstances not amounting to constructive dismissal within section 95(1)(c) of the Employment Rights Act 1996 (ERA), rather than his being dismissed by the Respondent within the meaning of section 95(1)(a).

1. By a judgment with reason promulgated on 24 April 2009, an Employment Tribunal, chaired by Employment Judge P Davies, dismissed the Claimant's claim of unfair dismissal. Against that judgment the Claimant appealed. His original Notice of Appeal was rejected on the paper sift by HHJ McMullen QC under EAT rule 3(7). At a rule 3(10) oral hearing Underhill P, having heard submissions from leading counsel, Mr Nigel Giffin QC appearing on behalf of the Appellant under the ELAAS pro bono scheme, and considered amended grounds of appeal settled by Mr Giffin, permitted the appeal to proceed to this full hearing on those amended grounds whilst making it clear (judgment paragraph 4) that the Claimant should not have his hopes inappropriately raised by his decision.

1. The arguable point of law identified by the President, paragraph 2, was formulated in this way:

"It seems to me arguable that the terms of the Appellant's letter of 9 June do not constitute a resignation but a recognition of what he understood, albeit on the Tribunal's findings wrongly, to be an actual dismissal by Mr Lake on the previous Friday; and that to write as he did, and to leave the premises in those circumstances, does not by itself constitute a termination by him of the employment. If that is right, the basis of the Tribunal's rejection of the claim falls away."

1. Before turning to Ms Macey's submissions in support of the appeal and those of Mr Lake who has represented his company throughout in response, it is first necessary to set out the material facts as found by the Tribunal.

1. The Respondent is a small employer which manufactures filters for photographic work. Its Managing Director and majority shareholder is Mr Lake. On 15 September 2003 the Claimant commenced his employment with the Respondent as an Accounts Manager. He also has an entrepreneurial side. One unusual feature of this case is that Mr Lake was content for the Claimant to set up and run his own company, Innovation With Results Ltd (IWR) from the Respondent's premises. IWR was incorporated on 1 June 2007.

1. On 6 June 2008 an incident, described by the Tribunal as of critical importance in this case, took place. It is important to note that the evidence from the Claimant and Mr Lake concerning that day conflicted. The Tribunal's task was to resolve those factual issues. They accepted the Claimant's evidence that on that day Mr Lake criticised the Claimant's computer skills and mathematical abilities. The Claimant, the Tribunal found, is not a person who accepts criticism very readily and did not do so.

1. It was the Claimant's evidence that on that occasion, having levelled those criticisms at him, Mr Lake asked him to quit. According to the Claimant's witness statement: "He said that I had a choice, that I could quit now or I could quit at the end of the month." That account was disputed by Mr Lake. His version of events, accepted by the Tribunal (reasons paragraph 14) was that he indicated to the Claimant that he wanted to meet with him the following week to review the Claimant's role in the Respondent and whether it would be better for him to concentrate on his own business efforts and in effect leave the Respondent. He did not, the Tribunal found, tell the Claimant that he had to quit now or at the end of the month.

1. The following Monday, 9 June 2008, in the early morning, having reflected over the weekend, the Claimant attended the Respondent's offices and without speaking to Mr Lake he put a note on his desk, together with his set of the factory keys and then left, never to return. The note which he left read as follows:

"Dear Mr Lake,

In accordance with Government guidelines for dismissal, I request that you provide written details of why you are dismissing me from your employment of approximately five years.

To have an informal discussion without any written details provided on your part and to request that I quit rather than be formally dismissed by you is in violation of guidelines.

Also, the personal intimidation, harassment and insults that I have endured for the past year is not only a violation of my employment rights but, my human rights.

I will be seeking advice from ACAS and from my personal solicitor since you are dismissing me both unfairly and without due care to the Government guidelines for both unfair dismissal and constructive dismissal. I will be seeking compensation in accordance with Government guidelines regarding this matter."

1. Mr Lake responded promptly by email the same day timed at 8.54am. He said this:

"Richard.

I have read your letter, now several times.

I am not dismissing you, and your interpretation of our discussion is incorrect."

1. Thereafter, having consulted with both ACAS and his solicitor, the Claimant issued a written grievance dated 11 June 2009 and addressed to Mr Lake, in which he complained of constructive dismissal, personal intimidation, harassment and insults, health and safety issues and other actions, details of which he enclosed with that letter.

1. The Tribunal examined in detail not only the events of 6 June 2009 (paragraphs 13 to 14) but also what followed (paragraphs 15 to 25) in reaching their conclusion that the Claimant resigned from the employment on 9 June 2008. Further, that resignation was not in response to a fundamental breach of contract by the Respondent. The Claimant's complaints of his alleged treatment by Mr Lake during the previous year were rejected as a matter of fact (paragraph 26). In these circumstances, the Tribunal held, the Claimant was not dismissed and accordingly his complaint of unfair dismissal failed.

1. The amended grounds of appeal contend, among other things, that the Tribunal was wrong to find that he resigned on 9 June 2008, rather the Claimant was dismissed by the Respondent under section 95(1)(a) ERA on 13 June 2009 when Mr Lake wrote to the Claimant complaining of his hostile letters and said:

"As such we can no longer consider you to be an employee. Consequent to the above you are banned from this site."

1. Reliance is also placed on the judgment of Wood P in Kwik Fit (GB) Ltd v Lincham [1992] IRLR 156. That case rejected the principle adopted by the Industrial Tribunal that where an employee resigns in the heat of the moment using unambiguous words or actions, there is an onus on the employer to recoup the situation and to investigate the employee's true intentions. Where words or actions of resignation are unambiguous, an employer is entitled to treat them as such and accept the employee's repudiation of contract at once, unless there are special circumstances arising due to personality conflicts or individual characteristics. We have also reminded ourselves and brought to the attention of the parties the analysis of Sir John Donaldson MR in Martin v Glynwed [1983] ICR 511 when determining the question, was the employee dismissed? At page 519G to 520A the Master of the Rolls said:

"Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same: who really terminated the contract of employment? If the answer is the employer, there was a dismissal within paragraph a of Section 55(2) of the Act of 1978 (now Section 95(1)(a) ERA). If the answer is the employee, a further question may then arise namely: did he do so in circumstances such that he was entitled to do so without notice by reason of the employer's conduct. If the answer is yes then the employer is nevertheless to be treated as if he had dismissed the employee notwithstanding that it was the employee who terminated the contract."

1. In advancing the appeal today Ms Macey has addressed each of the four grounds of appeal contained in the amended grounds. Ultimately her case comes to this: the Tribunal ought to have found that the Claimant did not resign on 9 June 2008, he was dismissed by the Respondent under section 95(1)(a) on 13 June 2009. Mr Lake counters that the Tribunal was entitled to conclude on the facts found that the Claimant resigned, that he unilaterally terminated the contract of employment on 9 June 2008. We bear in mind the limitations on the EAT's jurisdiction. It is to correct errors of law, not re try the factual issue: who really terminated the contract of employment?

1. Approached in that way we prefer the submissions of Mr Lake. Turning to the grounds of appeal, Ms Macey submits first that there is an inconsistency in paragraph 14 of the reasons. Having rejected the Claimant's account of the material part of his conversation with Mr Lake on 6 June 2008, they then, nevertheless, found that the Claimant genuinely interpreted the conversation differently. The Tribunal do not use the word genuinely but critically, we think, they reject the Claimant's account of the words used. That finding undermines the Claimant's case that he was either actually dismissed or that the Respondent repudiated the contract on 6 June 2008.

1. If there was a genuine misunderstanding on the Claimant's part it was promptly corrected by Mr Lake in his email sent at 8.54am on 9 June 2008 (see Kwik-Fit). By 13 June 2008 the Claimant had raised a number of serious allegations against the Respondent which Mr Lake refuted but which prompted him to bar the Claimant from the premises and to say that he could no longer be considered an employee. The Respondent paid his salary to the end of the month. Mr Lake attempted to arrange a meeting with the Claimant as part of the grievance process but received no response. The Claimant never returned to work.

1. In our judgment the Claimant lost his case on the facts. No error of law is disclosed in this appeal and consequently it must be dismissed.