Appeal No. EAT/374/00

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE,
STRAND, LONDON, WC2A 2LL

	                   At the Tribunal
	        On 6 September 2001
Judgment delivered on 19 October 2001

Before
MR RECORDER LANGSTAFF QC
MR J R RIVERS
MR H SINGH

MRS D I COLE	APPELLANT

THE POST OFFICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	The Appellant in person	
For the Respondent	MISS LYDIA SEYMOUR
(of Counsel)
Instructed by:
The Post Office
Legal Services
Impact House
2 Edridge Road
Croydon CR9 1PJ	

MR RECORDER LANGSTAFF QC

1	This appeal, from a decision of the Employment Tribunal sitting at London North which rejected the Appellant’s complaint that she had been unfairly dismissed, raises a familiar question:  did she resign or was she dismissed?  However, there is an unusual twist to it.  The date of dismissal or resignation is in dispute.   The Appellant says that she resigned on 3rd January 1999.  The Respondents’ case is that she was dismissed on the 19th February 1999.  

2	The facts giving rise to these two divergent cases, as found by the Employment Tribunal,  were as follows.  The Appellant was employed as a Customer Service Manager with the Post Office.  She fell ill in March 1998, and never thereafter came back to work, though she remained employed.  She was invited to a meeting on 27th November 1998 to discuss her return to work.  A project looking at health and safety issues was offered to her, but she failed to take it up notwithstanding instructions from her employer to return to work to do that job.  

3	She said in evidence to the Employment Tribunal that she believed the job offered to her, following the meeting in November 1998, was a demotion.  

4	She wrote a letter to her employers on 3rd January 1999.  She expressed her disappointment about the plans for her return to work, saying that she thought:-
“..that a place was found for me.  I arrived at the appointment set by [the personnel manager] only to find that there was no such position.  I was told at that interview that something will be workout and I will be sent on a course in order to fulfil my role.  I am somewhat puzzled by your letter, as far as I know all managers are responsible for health and safety of their staff within their environment.  As that role changed?  As any rules changed and if so, what are the perimeters?  What is the grade for this post?  Who I will be working with?  What is the length of the project?  Have you got a budget for it?  These are the facts that you should have put in your letter owing to the basis that you have at least two months to decide what you really want me to do……  Since April 1997, when my service was terminated, I have not been allowed to take up employment in the Post Office.  I would think that you had enough time to work precisely what you want me to do and to inform me of the details, so that both of us has a clear picture of what it is about and that I can prepare myself for the work ahead.
You said that I should take the time within course to prepare.  This just what I am saying, what am I preparing for.  Is it to do with the new changes, which is sorting office work, or is to do the previous Health and Safety procedures of which all managers have equal responsibility.  Am I going to design a project that will take away the line manager’s responsibility and who are going to inherit it?  These are the perimeters that you should advice me about so that any courses that I attended, I will be looking for answers to those problems.
Overall it does seems that the Post Office is willing to find me suitable employment, and my health would not withstand another round of indecision, so I must respectfully decline your offer.  I am taking a course, which lead to me finding suitable work.”

Having cited parts of that letter, the Employment Tribunal noted that when in cross-examination the Appellant was pressed as to when it was that she left her job her reply was:  “I think the 3rd January 1999”.  

5	On 18th January 1999, the Respondents wrote to the Appellant insisting that she reported for work on Thursday 21st January in order to explain why it was that she had not reported, as instructed, on 15th January, and to express her willingness to work as required within her contract of employment.  She did not do so.  Nor did she attend for an interview to which she was invited on the 5th February to explain herself.

6	The Employment Tribunal found that as a result of her failure to attend the interview and return to work she was dismissed from her employment on the 19th February 1999,  that she had not left her job on the 3rd January 1999 and was therefore not constructively dismissed.

7	Accordingly, in determining whether the dismissal was fair or unfair in accordance with Section 98 of the Employment Rights Act 1996, the Tribunal focused entirely upon the dismissal of 19th February 1999, relating as it did to a failure to observe a formal management instruction, and concluded that the dismissal for that reason was not unfair.

8	Beyond determining that she did not resign on 3rd January 1999, the Employment Tribunal did not consider the case which the Appellant had advanced, namely that she was entitled to resign her job (and had done so) because the Post Office had not offered her any proper work as a customer service centre worker, and that she had been left in such a state of uncertainty as to her working future as to affect her health and as to constitute victimisation.

9	The Tribunal came to its conclusion in two, pithy, sentences:-
“We find that Mrs Cole did not leave her job on the 3 January 1999 and was therefore not constructively dismissed.  She was dismissed by the Post Office and we find that the reason for dismissal was conduct.”

10	At the preliminary hearing of this Tribunal, presided over by Mr Justice Keene, leave was given for Amended Grounds of Appeal to be substituted for the original Grounds.  The preliminary hearing focused (rightly in our view) upon Ground 4, which alleged that the Tribunal erred in law in finding that the Appellant’s contract of employment was terminated by the Respondent on the 19th February 1999.

11	Before us, the Appellant represented herself.  She argued that the Employment Tribunal were in error in failing to find that she had resigned on the 3rd January.  Although she accepted that there were no words in the letter of that date saying in terms that she had left (or was leaving) her work, she submitted that it was quite clear that she had no intention of coming back.  It was not just the letter of 3rd January that should have conveyed her resignation to her employer, but the fact that she attended neither the course she had been asked to attend, nor the subsequent interview.  She argued that any reasonable employer would, in the light of that, have asked her if she intended to return, and would not simply have proceeded to dismiss her.

12	She directed us to Weathersfield Limited Trading as Van and Truck Rentals v. Sargent [1999] IRLR 94.  In the course of his judgment, Lord Justice Pill said (at para. 19):-
“I reject as a proposition of law the notion that there can be no acceptance of a repudiation unless the employee tells the employer, at the time, that he is leaving because of the employer’s repudiatory conduct.  Each case will turn on its own facts and, where no reason is communicated to the employer at the time, the fact-finding tribunal may more readily conclude that the repudiatory conduct was not the reason for the employee leaving.  In each case it will, however, be for the fact-finding tribunal, considering all the evidence, to decide whether there has been an acceptance.”

Later he said (para. 23) that leaving employment without notifying the reason does not preclude a finding of constructive dismissal, though it will usually make it more difficult to obtain such a finding.

13	She was constrained to agree, however, that that case was no authority for the proposition that an employee did not have to say that she was resigning:  it dealt with a lack of communication of the reasons for resigning, rather than a lack of communication of the fact of resignation.

14	The next case to which she referred us – Edwards v Surrey Police [1999] IRLR 458 – emphasised the point.  It was held by the Employment Appeal Tribunal that before a contract of employment can be terminated there must have been communication by words, or by conduct, such as to inform the other party to the contract that it was at an end.  An employee alleging constructive dismissal, therefore, must communicate to the employer the fact that she is terminating her employment.

15	We note that in the judgment of the Employment Appeal Tribunal in Edwards, delivered by Mr Justice Morison, the proposition that a contract of employment could be terminated without communication between the parties was described as a “remarkable proposition”, and the Tribunal added:
“It seems to us that employers should know where they stand when an employee leaves.” 
(paragraph 18).

16	The Appellant referred us also to Lanton and Leisure v White [1987] IRLR 119, and to Iceland Frozen Foods v Jones [1982] IRLR 439.  She argued that her actions in not turning up for work were quite clear.  Her conduct in not attending was sufficient to say that she had gone off the job.  The contract, she submitted, terminated on the 18th January when her employer stopped paying her.  That was the date which she said, before us, was the date of termination.  

17	She argued, further, that the Employment Tribunal were in error to find that the reason for her dismissal was misconduct.  What they had described was not enough to constitute gross misconduct, and the Respondent had used misconduct as a ploy to secure her dismissal.  In truth, the reason for her dismissal was her decision not to return to work, which had been taken in early January:  and it should have been the reasons for that decision that ought to have been explored by the Tribunal, not the reasons for the purported dismissal on the 19th February, which focused inevitably on instructions to attend work given in December and afterwards to the exclusion of  the conduct of the Respondent which was truly causative of her ceasing work.

18	In reply, Counsel for the Respondent argued that it was impossible to say that the Employment Tribunal were bound to regard the letter of 3rd January 1999 as a letter of resignation.  Plainly, the Respondent did not treat it as such at the time (or else there would not have been the correspondence which followed, which was also before the Tribunal).  The last paragraph of that letter was consistent with a refusal to accept an instruction to work in a particular capacity.  

19	Although the Appellant had raised as an issue in the first three of her Amended Grounds of Appeal that the Employment Tribunal had not made any findings of fact, Counsel for the Respondent submitted that the format of the decision, taken as a whole, was such as was sufficient to answer the issues raised.  Once it was accepted that the Tribunal were not bound to hold that the letter of 3rd January 1999 was clearly a resignation (or, put alternatively, an acceptance of the repudiatory conduct of the employer) it was equally open to them to conclude that the Appellant had done nothing sufficient to communicate her resignation (if, indeed, she had intended to resign on that date).   Nor did any letter thereafter, prior to the Respondent’s own action in dismissing the Appellant, amount to an assertion that the Appellant had resigned, or was going to.  (Indeed, in the letter of 4th February 1999, the Appellant wrote:  “From your reaction,  I can only assume that this job does not exist and this is another ploy to bring about a desire…” and concluded:  “I will leave you to decide your course of action and will react to the same.”  This was a far remove from someone who had decided upon a particular course of action – to end her contract of employment - telling her employers of it.

Conclusions
20	We have examined the letter of 3rd January 1999 with care.  We agree with Counsel for the Respondent that it does not compel a finding that the Appellant was resigning.  It complains about her employer’s conduct, but does not clearly indicate that, because of that conduct, or for any other reason, the Appellant no longer regarded herself as employed by the Post Office.  

21	We think, moreover, that the Employment Tribunal were entitled to put that letter in context.  Although part of the context was the Appellant’s refusal to respond to instructions given her, part of it was also to write the letter of 4th February 1999 which, far from indicating that she had resigned a month earlier, concluded by declining to take any step herself to end the situation about which she was complaining in the body of that letter.

22	The two cases advanced before the Employment Tribunal were very different.  Once the Tribunal had decided to accept the Respondent’s case (that the dismissal was on 19th February 1999) Ground 6 falls away too.  

23	Grounds 1, 2, and 3 of the Amended Notice of Appeal all argue that the Employment Tribunal should have considered the Appellant’s case that the Respondent had failed to offer her a reasonable job on 10th December 1998, and had instead proposed a demotion.  Thereby, it was said in the Grounds, that the Respondent had acted in repudiatory breach of contract.  

24	We do not see that it was incumbent upon the Employment Tribunal to make such findings.  The issue between the parties was defined both by the argument before the Tribunal, which as recorded in Paragraph 5 of the Tribunal Decision was to the effect that the job offer was not a “real offer”, and was not an argument that it was a demotion.  The Tribunal resolved that issue in paragraph 10.  We note that this argument, which appears from the decision to have been advanced before the Tribunal, is consistent with the Originating Application made to it.  

25	Further, if the Tribunal were, as we hold, entitled to take the view that the Appellant did not resign on the 3rd January 1999, the first two grounds of appeal suggested that the Tribunal erred in failing to find facts which, if found, would have been only tangential to a consideration of the reasonableness for a dismissal by the Respondent.  Whether the conduct was repudiatory or not would be relevant only if the Appellant’s case had been accepted.

26	As to the fifth ground, we see no force in this.  There is no evidence that it was argued before the Tribunal.  In any event, the Tribunal considered the fairness of the dismissal in accordance with Section 98 of the Employment Rights Act 1996 as they were bound to do.

27	We were, at one stage of our deliberation, however concerned that the two central sentences at paragraph 8 of the Tribunal decision, which we have set out above, might have been too terse.  They contain no description of the reasoning that led to the conclusion they express.  There is no detailed setting out of the facts found, nor analysis of them.  The effect of the letter of 3rd January 1999 was not addressed.  It might have been preferable if it had been.  We were concerned whether there was sufficient properly to indicate to the Appellant why it was that she had lost.  However, Counsel for the Respondent properly reminded us that there was no Ground of Appeal which alleged that the Employment Tribunal had not set out its reasoning in sufficient detail.  Leave would have to be sought before such a point could be argued.  No application to this effect was made to us by the Appellant, and if it had been we would have thought it too late – the Grounds of Appeal had already been amended substantially once.  Moreover, we would have been inclined to find that the reasons were just sufficient to satisfy the test in Meek v City of Birmingham.  The central question before the Tribunal, given the respective cases before it, was when the employment relationship came to an end.  The Employment Tribunal had found facts in dealing with the background.  It had stated the respective cases of the parties.  It had plainly accepted the case for the Post Office. On the critical issues – whether the job offered in December was a “real job” or not, and whether the letter of 3rd January 1999 constituted a resignation or not – the Tribunal had made it plain it accepted the Respondent’s submissions.  Those were findings of fact.  Whereas findings of law have to be justified, findings of fact do not necessarily have to be.

28	It follows that we have concluded that it was open to the Employment Tribunal to come to the finding of fact which it did as to the date of termination of employment.   We see no error in the way in which the Employment Tribunal then dealt with the fairness of the dismissal, for the reason which operated to produce termination on that date.  Each of the Grounds of Appeal fails, and accordingly this appeal is dismissed.