Ogilvie Construction Ltd v Brown UKEATS/0003/16/JW
Appeal against a finding that the Claimant had resigned meaning that he could claim constructive unfair dismissal, which he did and won. Appeal dismissed.
The Claimant was promoted from General Manager to Site Manager which involved him in working excessive hours. He wrote a letter to the Respondent which included the following words: "Just to confirm I would like to give you notice to finish up in four weeks from this position". The issue here was whether the letter meant that he was resigning from his employment with the Respondent or whether he merely wanted to return to his position of General Manager. The Respondent argued that the notice of resignation sent by him was ambiguous at best and the Claimant himself contending that he had intended only to resign from the promoted post. The Tribunal found that the notice of resignation was unambiguous and that the subsequent acceptance of the notice and the Claimant's actions (he had found another job) were consistent with his having resigned. The Claimant subsequently won his claim of constructive unfair dismissal. The Respondent appealed against the finding that the Claimant had resigned, arguing that the Tribunal's decision was perverse in light of the Claimant's own stated intention.
The EAT dismissed the appeal. The Tribunal had a perfectly rational basis for preferring the evidence of the Claimant. The surrounding circumstances all supported the fact of resignation, the Claimant having gone ahead and secured alternative employment and having given no indication to the Respondent that they had misinterpreted his notice by treating it as a resignation from employment.
Appeal No. UKEATS/0003/16/JW
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At the Tribunal
On 10 August 2016
THE HONOURABLE LADY WISE
OGILVIE CONSTRUCTION LTD (APPELLANT)
For the Appellants MS A STOBART (Advocate) Instructed by: Blackadders LLP 30 & 34 Reform Street DUNDEE DD1 1RJ
For the Respondent MR BROWN (The Respondent in person)**SUMMARY**
CONSTRUCTIVE UNFAIR DISMISSAL: Dismissal/ Ambiguous resignation
The claimant worked for many years for the respondent, rising to the position of General Foreman. He was asked to take on a promoted post with more responsibility. He found himself working excessive hours and despite his complaints the respondent took no effective steps to manage his workload. As the respondent was in repudiatory breach of the contract of employment, the claimant was entitled to resign. The issue was whether he had resigned, the respondent arguing that the notice of resignation sent by him was ambiguous at best and the claimant himself contending that he had intended only to resign from the promoted post. The Tribunal found that the notice of resignation was unambiguous and that the subsequent acceptance of the notice and the claimant's actions were consistent with his having resigned. The respondent appealed, arguing that the Tribunal's decision was perverse in light of the claimant's own stated intention.
The Tribunal had a perfectly rational basis for preferring the evidence of the respondent's employee on his recollection of a telephone conversation with the claimant following the notice in which the claimant had said he was "happy to move on". The surrounding circumstances all supported the fact of resignation, the claimant having gone ahead and secured alternative employment and having given no indication to the respondent that they had misinterpreted his notice by treating it as a resignation from employment. As the Tribunal had found that the notice was unambiguous, the claimant's stated intention was of less importance than how it would have been understood by the reasonable recipient. Where there was no inconsistency between the terms of the notice and the surrounding circumstances, the Tribunal had been well entitled to reach the conclusion that it did. Far from being perverse, it was difficult to see what other conclusion could have been reached on the facts found. Appeal dismissed.**THE HONOURABLE LADY WISE**
- The claimant was employed by the respondent, a company in the business of building construction, for some 28 years, starting as apprentice joiner and progressing to the role of General Foreman. His employment ended on 21 November 2014 and he claimed constructive unfair dismissal. The Employment Tribunal, in a judgment of 1 December 2015, found that he was unfairly dismissed. The respondent appeals against that decision. The claimant represented himself both before the tribunal and before me. The respondent was represented at the tribunal by Mr Allison, solicitor and before me by Ms Stobart, Advocate.
- The circumstances surrounding the claimant's departure involved a project undertaken by the respondent in 2014 on a site known as "Hungry Horse". The claimant had been working in his usual capacity of General Foreman. In about June 2014 he was informed that he was to be promoted from General Foreman to Site Manager and would be in charge of the Hungry Horse site. He was offered an increase in salary and a better company car. The claimant was concerned about the additional hours that would be expected of him in such a role and raised that in email correspondence with the respondent. During a period June to November 2014 the claimant continued to raise the issue of the additional hours, but nothing was done to free him of the increased burdens on him. He worked for between 53 and 70 hours each week during the period mid-June to 20 October 2014. In July he made clear to the respondent that he would be happy to be replaced and work standard working hours. Matters came to a head in late October 2014, when the claimant gave the notice that ultimately led to the end of his employment with the respondent. The Hungry Horse project was due to complete in late November 2014.
- The judgment of the Employment Tribunal includes the following findings and reasons for the decision insofar as material to this appeal:
3….The claimant submitted a letter by email that the respondent took to be and acted on as a letter of resignation. The claimant said in evidence that he had not intended the letter to give notice of termination of employment merely to convey that, upon completion of the work on Hungry Horse, the claimant wished to revert to his former role as a General Foreman with the attendant demands in terms of working hours. Accordingly, I had to determine whether the respondent was in repudiatory breach of contract, whether the claimant accepted that breach by rescinding the contract and whether he did so at a time when it was open to his to do so.
11. Typically, a construction project lasts arounds six months. At the conclusion of a project, those in positions similar to that of the claimant would move on to another project as one became available. If a new project was not immediately available, the employee would be allocated to a role in an ongoing project until new work became available. That had been the claimant's experience since he had become a General Foreman in 2008.
28. " On 24 October 2014, the claimant wrote the email at page 113 addressed to Mr Ralston and copied to Mr Gray, Ms Rawding, an administrator, and Mr Main. The email is headed " 4 WEEKS NOTICE" and in the body of the email, the claimant uses these words " Just to confirm I would like to give you notice to finish up in four weeks from this position". He went on to say that he had holidays to take and will do so following this period. The claimant anticipated that the four weeks would take the project to " PC date", that is practical completion date but that he would work an extra week if need be to cover any delays as he did not wish to leave the project until the PC date " which will make it much better all round". "
29. In his evidence, the claimant said that his letter was not intended to give notice of termination of employment but rather to indicate that he was giving notice of reverting back to his General Foreman role. The claimant and Mr Ralston have different recollections of that conversation. The claimant is for saying that he made clear that he had not given notice of resignation of employment from the respondent. Mr Ralston was for saying that he did not recollect that to be the claimant's position.
30. I prefer Mr Ralston's evidence because on 27 October 2014, Mr Main signed a letter prepared by Ms Rawding, accepting the claimant's resignation and intimating the arrangements for the termination of employment. The claimant did not respond to that letter by saying that the respondent had misunderstood his position nor did Mr Ralston raise any issue of the respondent having treated the letter as a resignation when that was not what was intended.
31. The claimant's employment ended on 21 November 2014.
32. The claimant entered early conciliation. The consequence was that the respondent convened a grievance meeting on 18 December 2014. The claimant attended that meeting knowing that he had accepted employment elsewhere and had in mind that the meeting made (sic) lead to a payment of compensation. On 19 December 2014, the respondent offered to employ the claimant as a General Foreman and, although the letter does not made (sic) the position clear, I accept that the claimant would have been reinstated with salary back to 21 November had he accepted. He did not.
Having found that the respondent had breached the terms of the claimant's contract by requiring him to work excessive hours, the Tribunal concluded that the burdens so placed on the claimant were so excessive that they amounted to a fundamental breach of contract. The breach was aggravated by a failure to reply in writing to the claimant's various emails raising the issue and by actions that purported to restore the claimant to the position and salary of a General Foreman while doing nothing to cut his workload. On the central issues the Tribunal then reached the following conclusions ;-
41. In addition to an express breach of the term as to hours of work, I consider those matters also to amount to a breach of the implied terms as to trust and confidence. In my judgment it is likely to seriously damage or destroy mutual trust and confidence if an employer imposes a regime that obliges an employee to work excessive hours, fails to reply in writing to correspondence raising the issue and then deals with the remuneration aspect of the claimant reverting to General Foreman whilst not dealing with the other side of the work-wage equation.
42. The breach, whether of the term as to trust and confidence or as to imposition of excessive hours of work endured down to the date of resignation.
43. I have considered the claimant's evidence that he did not intend by the email at page 113 to bring his employment to an end.
44. I do not accept the claimant's evidence on the point. Firstly, I have found that the claimant did not raise the matter with Mr Ralston in the way the claimant says that he did. Secondly, I have little doubt that there would have been an outcry from the claimant had the respondent purported to accept a resignation that had not been offered. Thirdly, and more importantly, taken in its totality, the claimant's letter makes no sense if the claimant was intending to do other than resign, for these reasons. The email is headed "4 weeks notice". Of what was the claimant required to give four weeks' notice? It can only be four weeks notice of termination of employment. There is nothing that would oblige the claimant to give four weeks' notice of working only his contractual hours or of not undertaking particular work tasks. In any event, if that is what the claimant intended to do, he could easily have said that in plain terms. The claimant said that he was going to "finish up in 4 weeks from this position." If what was meant was that the claimant was to cease his work at Hungry Horse, there was no need to give notice of that because, as the claimant says, the project was expected to complete in four weeks and the system was, to the claimant's knowledge that he would be moved on to another project at that time. Further, the claimant expressly offers to stay on for an extra week if necessary to complete Hungry Horse if that project is delayed. If the claimant was to remain an employee of the respondent, it would have been open to the respondent to direct that the claimant remain to see out the project.
45. In my judgment page 113 amounts to an unambiguous resignation. Both Mr Ralston and mr Main were for saying that they had seen many intimations of resignation. Resignation by e-mail is not unusual. Their construction of the e-mail is both reasonable and wholly in keeping with the words used and the surrounding circumstances.
46. I am, therefore, driven to the conclusion that the claimant was dismissed and, it necessarily follows that he was unfairly dismissed."**The Respondents' Arguments on Appeal**
- At the hearing before me, Ms Stobart made clear that the respondent did not seek to challenge the Tribunal's finding that the respondent employer had so breached the contract it had with the claimant that the claimant was entitled to resign. The issue was focused on whether he had given an unambiguous notice of resignation. The stated reasons in the judgement for rejecting the claimant's position that he had not resigned required to be examined.
- The first stated reason was that the Tribunal concluded that Mr Ralston's evidence about the way in which the matter was discussed is to be preferred over the stated position of the claimant. However, there were no credibility findings in the judgment at all, and so no reason given as to this preference. Reference was made the notes of evidence of the hearing taken on behalf of the respondent. Under cross examination of Mr Ralston, it was put to him by the claimant that during a telephone conversation the email was discussed because Mr Ralston had said he wasn't sure if the claimant had resigned from the company or from the role. When it was put to him that it was only from the role Mr Ralston said "I do not recollect the specifics of the conversation. I remember the words 'happy to move on' being used.". The Employment Judge's own notes of the same exchange record Mr Ralston as saying " .. I don't recollect the claimant saying that he was happy to stay with the General Foreman position. I recollect him saying he was happy to move on." While the notes of the appellant's agent and the Tribunal Judge differ to some extent, in neither account did Mr Ralston give a clear account of the conversation. Whatever might be taken from that exchange, it was submitted that there was nothing definitive in Mr Ralston's evidence to support the positive conclusion that the claimant's evidence was erroneous. The Tribunal had not explained why he had not found the claimant's position to be credible.
- Further the Tribunal had failed to record in the judgement the claimant's evidence as to his state of mind when discussing the matter with Mr Ralston. The Judge's own notes record the claimant stating " Ralston phoned me on Sunday. I told him I didn't want to continue as Site Manager as I had been doing and was happy to revert to being the second man as Foreman on 39 hours." The Judges' notes did not record the question and answer exchanges he had with the claimant during evidence. This exchange was noted by the respondent's agent. The Judge had asked the claimant why he had resigned when he was so close to the end of the project and the claimant had responded " I did not want to commence another project as Site Manager" and " My conversation with Mr Ralston was that I was leaving my General Foreman role and he was my line manager. I did not intend to terminate my employment". The Judges pursued the matter further, putting it to the claimant " but your email contains the words 'to give you notice' ", to which the claimant replied "Yes. But my email to Mr Ralston, J 73, confirmed that if he was looking for a General Foreman, to let me know." Ms Stobart submitted that as it was for the claimant to explain why he resigned in response to the breach, it was perverse to have relied on Mr Ralston's recollection and rejected the claimant's stated evidence of intention.
- The second stated reason is that the Tribunal had "… little doubt that there would have been an outcry from the claimant had the respondent purported to accept a resignation that had not been offered". Ms Stobart submitted that this reasoning was also perverse. It was speculation, as neither Mr Brown nor any other witness had given any evidence about that. This was contrary to the principle enunciated in The County Council of Hereford and Worcester v Neale  IRLR 168, at 175, that it is unwise and potentially unfair for a Tribunal to rely on matters that occur to its members after the hearing and which were not raised during the hearing unless the point is so clear that the relevant party could not make any useful comment in explanation. The Tribunal cannot draw inferences other than from facts found from which inferences can properly be drawn - Eclipse Blinds Ltd v Wright  IRLR 133. In the absence of any evidential basis for this part of the reasoning, it was a breach of natural justice for the issue to be relied on when neither party had addressed the Tribunal on it.
- The Tribunal's third stated reason was that the claimant's email made no sense if he was intending to do anything other than resign. The Judge concluded that giving four weeks' notice could only be four weeks' notice of termination of employment. Ms Stobart submitted that the Tribunal had failed to take the surrounding evidence into consideration in reaching that conclusion. The claimant's email stated that he would " finish up in 4 weeks from this position" and refers to a number of holidays he will take thereafter. There is then a reference to not leaving the project (the Hungry Horse) until practical completion date. The surrounding circumstances included the finding at paragraph 11 that an employee would be allocated a new role at the end of each project. The claimant's request to move on from his position as a site manager was consistent with that finding.
- It was submitted that on its face the email reads more consistently with a position that the claimant was resigning from his post not his employment. When taken with the other evidence, it could really only have one meaning, namely that the claimant wished to make clear that he did not want to continue as site manager and that he wanted to revert to general foreman. Accordingly, the conclusion that the email could only make sense if it indicated that the claimant was resigning from his employment was perverse. In those circumstances there was no constructive dismissal. The Tribunal ought to have found that there was no dismissal. This was a situation where the EAT could easily substitute its own finding to that effect.
- The claimant, who has been unrepresented throughout the proceedings, did his best to address the points made by Counsel for the respondent. He explained the background to his email of 24 October giving four weeks' notice. The circumstances were as found by the Tribunal. There had been no consultation or agreement about his moving from the position of General Foreman to Site Manager. He pointed out that he had complained on more than one occasion about the excessive hours he was being required to work and had received no proper response. The respondent knew that he found the situation unacceptable and that was discussed with Mr Ralston when, on 26 October, they had a discussion about his resignation. The claimant had made clear to Mr Ralston that the principal reason for his resignation was the excessive hours and his consequent decision that he could not continue in the Site Manager position. He accepted that at that time he would have been willing to take on work as a foreman but as none was offered it was clear that he was going to move on.
- On the basis of those facts the finding made by the Employment Tribunal was correct, namely that he had resigned from his employment. What he had said in evidence was that he had intended to give notice to revert back to his General Foreman role, but also that if there was no other work in that capacity then he was happy to move on. Mr Ralston had said that he recollected the claimant saying that he was happy to move on. As the claimant's request to revert back to what he termed "second man" was declined, the effect of his notice was that he was resigning. That the position had been understood by both sides was apparent from his having said in an email of 21 November 2014 " if things pick up and you are looking for foreman, then let me know.". That was consistent only with his leaving the employment of the respondent.
- So far as the point about the Tribunal relying on a hypothetical reaction from the claimant had the respondent purported to accept a resignation that had not been offered was concerned, the claimant contended that the evidence that formed the basis for that conclusion was the conversation he had with Mr Ralston following the respondent's receipt of his notice. He had made clear that he was not going to remain in the employment of the respondent on the basis he had been required to work. As nothing had been offered by the respondent to resolve the situation, the outcome was as expected and so he had not reacted to the respondent's acceptance of his resignation. The claimant said that he had known at the time that if there was no work as a foreman offered it was an end to the contract he had with the respondent.
- Reference was made also to the grievance meeting of 18 December 2014. By that date the claimant had secured alternative employment and he wanted to discuss only the issue of compensation from the respondent. The claimant pointed out also that the respondent's witnesses had been unclear and inconsistent on what his job title was and when it had changed. Mr Ralston's evidence had been that he thought the claimant had been a Site Manager throughout. His response to the email giving notice had to be seen against that background.
- This is a perversity appeal. To succeed the respondent must make out an overwhelming case that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached –Yeboah v Crofton (2002) IRLR 634
- The starting point for discussion is the now unchallenged conclusion of the Tribunal that the respondent being aware of the claimant's excessive hours of work, including his complaints about the issue, and taking no effective steps to manage his workload, amounted to a repudiatory breach of the contract of employment and that there had been a breach of the implied term of trust and confidence – paragraphs 38- 42. Those central issues were very much in dispute at the hearing and were decided in the claimant's favour. Accordingly, he was entitled to accept the breach and terminate the contract by resignation which would amount to constructive unfair dismissal.
- In argument before me the appeal was focused as a challenge to the Tribunal's conclusion that the notice sent to the respondent was an unambiguous resignation and to a large extent that was how the issue was characterised by the Tribunal. What should not be lost sight of, however, is that the notice is only one aspect of a bigger question, namely whether or not there has been a resignation (or dismissal). The terms of section 95 of the Employment Rights Act 1996 govern the circumstances in which constructive unfair dismissal can arise. The provision states that those circumstances are that ;-
" (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."
It having been established that the claimant in this case was entitled to terminate the contract by reason of the respondent's conduct, the issue for the Tribunal came to be whether or not he had so terminated it. The question of whether or not there has been a resignation (or dismissal) must be considered in the light of all the surrounding circumstances – J & J Stern v Simpson  IRLR 52. While the claimant would have been entitled to terminate the contract without notice, he had actually sent a notice (by email) to his employer which his employer had taken to be a notice of resignation of employment and had acted on it with that understanding. That notice was an important part of the surrounding circumstances.
- Turning to the respondent's first argument, namely that there was no rational basis for preferring the evidence of Mr Ralston to that of the claimant in relation to the telephone call they had after the notice was received, I note first that it is the judge's notes that must prevail where there is a difference between what was noted at the time. Counsel for the respondent contended that on any view of the notes Mr Ralston had no clear recollection of what had been said. However an examination of the judge's note of his evidence does not, in my view, support that contention. The Employment Judge records Mr Ralston as saying, in response to an assertion in cross examination that the claimant had said he would be happy to stay as General Foreman " .. I don't recollect the claimant saying that he was happy to stay with the General Foreman position. I recollect him saying he was happy to move on." On the face of it, the witness was not saying he did not recall the specifics of the conversation, rather he was not accepting the assertion put and was confirming the thrust of the conversation as he recalled it, namely that the claimant was happy to move on, the context being that Mr Ralston had received what he understood to be a notice of resignation. The Tribunal did not make any general credibility and reliability findings in this case. However, whenever there was a dispute in relation to an issue of fact, each party's position was stated and a conclusion reached as to what was being accepted. One example is in relation to whether the claimant had received a letter from the respondent at the beginning of August 2014 in relation to reverting to the position of General Manager. The Tribunal concluded on balance that the letter had not been sent to the claimant, consistent with Mr Brown's position that he had not received it – paragraphs 21 and 22. In a case of this sort, where there are different recollections and positions, it is not necessary for a judge to find one position credible and the other not. It must be clear which position is being accepted and reasons must be given. On this issue it is clear from the judgment that the Employment Judge found Mr Ralston's position on this issue of what was said during the telephone conversation to be more reliable because it was more consistent with the extraneous evidence, in particular the subsequent preparation by the respondent of a letter of acceptance of the claimant's resignation – paragraph 30. The respondent's argument on this point appeared to conflate the issue of the telephone conversation and what was said during it and the general issue of intention. The Tribunals' finding in relation to preferring Mr Ralston's evidence can be understood as relating specifically to what was said during the telephone conversation on 26 October ( erroneously dated 26 September in paragraph 29) and Mr Ralston's understanding of what the notice was intended to convey. The Tribunal having decided that Mr Ralston's recollection of the telephone call was more reliable, the issue of the claimant's intention was then more relevant to the evidence of the notice and whether it amounted to an unambiguous resignation. I conclude that the decision to prefer Mr Ralston's evidence on what was said during the telephone conversation of 26 October was one the Tribunal was entitled to reach on the evidence it had noted.
- The second argument for the respondent is that the Tribunal had not been entitled to conclude that "… there would have been an outcry from the claimant had the respondent purported to accept a resignation that had not been offered". It is trite that the Tribunal cannot draw inferences other than from facts found from which inferences can properly be drawn. The question is whether there were sufficient primary facts found from which the Tribunal was entitled to draw the inference it did on this issue. In paragraph 30 of the judgment, having preferred Mr Ralston's evidence on what was said during the telephone conversation on 26 October because the respondent sent a letter of acceptance of resignation the following day, the Tribunal finds that " The claimant did not respond to that letter by saying that the respondent had misunderstood his position nor did Mr Ralston raise any issue of the respondent having treated the letter as a resignation when that was not what was intended." So the absence of a protest from the claimant had a basis in the evidence. According to the respondent's agent's notes, Mr Raslton was asked specifically whether the claimant had ever said anything inconsistent with the email notice after it was sent. The Judge's notes also record that in response to questions from him (the Employment Judge), the claimant confirmed that he registered with an agency on 28 October and then applied for a new job on 10 November. By the time of the grievance meeting in December he had secured new employment and had no interest in going back to the respondents. That evidence was also available to the Tribunal as part of the circumstances in relation to the central issue of whether the claimant had resigned (and was therefore constructively unfairly dismissed). The respondent now seeks to argue that neither party had the opportunity to address the Tribunal on this issue of the absence of a response to the letter accepting the resignation but there is no reason why the evidence of what occurred after the respondent had accepted the resignation could not have been the subject of submissions. This argument must be understood against the background of the respondent having taken the position at the hearing that the claimant had resigned by the notice he sent, the antithetical position to that now taken. The absence of actings inconsistent with resignation was accordingly not only consistent with the stance taken by the respondent at the hearing but appears to have been raised in evidence. I conclude that the tribunal had sufficient evidence before it to draw the inference that it did on this point.
- The third and final point for the respondent is that it was perverse for the Tribunal to state that the claimant's email made no sense if he was intending to do anything other than resign. It must be acknowledged that the Tribunal does give this as a third reason for rejecting the claimant's evidence of intention. However, again, that reasoning is simply part of a conclusion that the claimant resigned and more particularly that he had done so by sending an unambiguous notice of resignation. It is perhaps this argument that focuses most clearly the issue of the importance or otherwise of an employee's intention in sending a notice of resignation. Where a notice of resignation is unambiguous the recipient is entitled to assume that the decision behind it was conscious and rational and accept its terms. The surrounding circumstances may be of little relevance unless the notice and the circumstances do not point in the same direction. Even where there is some ambiguity in expression in the notice, the evidence of the former employee as to his intention is not necessarily determinative. The real test is how the notice would have been understood by the reasonable recipient. These principles are discussed in Harvey, Vol I, D, paras 225-249, but, it would appear, were not articulated to the Employment Judge at the hearing nor were they referred to on appeal.
- What is clear is that the Employment Judge found that this was an unambiguous notice of resignation. The respondent now contends that, taken with the surrounding circumstances the notice could be read only as notice of the claimant terminating his position as Site Manager and reverting to General Manager. That contention ignores the circumstances consistent with the notice being one of termination of employment, namely the absence of a reaction to the respondent's acceptance of it as such and the claimant's actings to secure new employment immediately. More importantly, the respondent's own witness took it to be a clear notice of resignation from employment, acted accordingly and maintained his position in evidence that he had never seen anyone give notice when finishing a particular job as opposed to from their employment and that he had taken it as a resignation from employment. The agent for the respondent appears to have challenged the claimant in evidence on this point putting to him that a "reasonable person" would take the notice as being one of resignation from employment, recorded both by the Judge and the respondent's agents in the notes of evidence now produced. Leaving aside that the respondent has performed a complete volte face on this issue, the question for me is again whether the Tribunal was entitled to conclude that this was an unambiguous notice of resignation. The notice was before the judge and the significant parts of it, namely the heading "4 weeks notice" and the statement in it that the claimant would " finish up in 4 weeks from this position". I reject the contention that a conclusion that its terms were unambiguous was somehow perverse. However, the Tribunal went further and relied on the surrounding circumstances, stating " Both Mr Ralston and Mr Main were for saying that they have seen many intimations of resignation. Resignation by e-mail is not unusual. Their construction of the email is both reasonable and in keeping with the words used and the surrounding circumstances" (para 45). It is this part of the judgement that convinces me that the Tribunal did not fall into any material error in approach. In accordance with the established principles in this area, having formed a view on the unambiguity of the notice, it proceeded to cross check that view against whether there was anything in the surrounding circumstances that militated against taking the notice at face value and found that there were not. The Tribunal also understood that the issue of the employer having taken it at face value had to be scrutinised and characterised as reasonable or unreasonable. While there is no discussion of the relationship between the claimant's intention at the time and the unambiguity or otherwise of the notice, I have already pointed out that the principles about that do not appear to have been part of any argument to the Tribunal.
- In my view, it would have been sufficient for the Tribunal to conclude that the notice was unambiguous, cross check that against the respondent's construction and the surrounding circumstances and conclude that the claimant's evidence of intention was of far less relevance standing that he had found that such intention had not been communicated to Mr Ralston in the telephone call. This appeal, focusing as it has on the stated reasons for not accepting the claimant's evidence of intention, has been presented as if the Tribunal's conclusion on the claimant's stated intention had been an end of the matter. On the contrary, the paragraph ( 44) that deals with the reasons for rejecting he claimant's evidence on the point precedes the paragraph I have noted above as giving the Tribunal's conclusion on the unambiguity of the notice and how that fitted with the surrounding circumstances. The question for the tribunal was whether the claimant had terminated his contract of employment after the respondent had acted in a manner that entitled him so to do. The answer to that question could only be in the affirmative, when the notice was considered against the evidence of what occurred thereafter. While it was a curiosity of the case that the party who had resigned stated he had not intended, at least initially, to resign completely from his employment, that stated intention was ultimately no more than an adminicle of evidence for the Tribunal to try to make sense of standing all of the evidence to the contrary. It appears that the claimant's initial view was that he would have remained in the employment of the respondent if he could have reverted to his previous role of General Manager. He was clear that unless such an option was available his time with the respondent was at an end. His actings in taking up new employment and attending a grievance meeting only with a view to discussing compensation were consistent with his having resigned. It is more difficult to see how, on the accepted evidcne the Tribunal could have reached any conclusion other than the one it did. If the respondent had not resigned from his employment, how did he come to be working for another employer within weeks of giving notice to the respondent and on what basis did he register with an agency the day after the letter from the respondent accepting his resignation was sent (which according to the respondent's chronology was the very day on which it was received by the claimant)? These questions would have been very difficult to answer other than by concluding that the claimant had, whatever his stated private intention, in fact resigned from his employment.
- In the somewhat unusual circumstances of this case and reading the judgement as a whole, I consider that the Tribunal was well entitled to reach the conclusion that it did. I reject the argument advanced for the respondent that the decision was perverse. I will dismiss the appeal.
Published: 28/04/2017 13:15