Appeal No. UKEAT/0095/11/SM
UKEAT/0096/11/SM          

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On Wednesday 14 September 2011 
Judgment handed down on 20 December 2011

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR B BEYNON
MR J R RIVERS CBE

MR J MACKENZIE	APPELLANT

BILLING AQUADROME LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant            

	MR PATRICK GREEN 
(of Counsel)
Instructed by:
Shoosmiths Solicitors
Witan Gate House
500-600 Witan Gate West
Milton Keynes 
MK9 1SH	
For the Respondent          	MR DANIEL NORTHALL 
(of Counsel)
Instructed by:
DLA Piper UK LLP 
Bridgewater House
101 Barbirolli Square
Manchester 
M2 3DL                     	

SUMMARY

UNFAIR DISMISSAL – Constructive dismissal

Case remitted to Employment Tribunal after an earlier appeal, to consider (a) whether the Appellant was actually dismissed and (b) whether he was constructively dismissed – Tribunal decides issue (a) but not issue (b) – Remitted to a fresh Tribunal for determination of the remaining issue.

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1.	This is an appeal against the decision of an Employment Tribunal sitting at Bedford, chaired by Employment Judge Moore, dismissing the Appellant’s claim of unfair dismissal.  The case has a complicated and very unfortunate history, which we will have to set out in some detail in order to get to the issues that have to be decided on this appeal.  

2.	We start with an outline summary of the facts: 

(1)	The Respondent company runs a holiday park called Billing Aquadrome near Northampton.  Part of the business of the park involves the sale of caravans.  The Appellant was employed as a Sales Manager in July 2005.  Under his contract of employment he had the opportunity to earn what could be large sums by way of commission.  

(2)	In 2006 the ownership of the company changed.  Although we do not know the details, the new owners were apparently concerned at the level of the Appellant’s commission.  

(3)	At the beginning of 2007 there was a dispute about the commission terms to apply for the year beginning 1 February.  The issue was handled by the Respondent’s Operations Director, Mr Dawson.  The Appellant met his immediate manager, Mr Calvesbert, on 2 February.  He was excited and expressed himself forcefully.  He used language which suggested that, to put it no higher, he was considering resignation.  At Mr Calvesbert’s suggestion he spoke on the telephone to an HR consultant who worked for the Respondent called Mrs Drake: she advised him, in effect, not to act precipitately.  He said that he would be speaking to his solicitors.  The Respondent’s case was that the Appellant resigned at that meeting; but, as will appear, the Tribunal found that he had not gone so far.  

(4)	Mr Calvesbert phoned Mr Dawson and told him that the Appellant “had resigned”; but it follows from the Tribunal’s findings that that was an overstatement, and in fact he also told Mr Dawson that he was not clear whether the Appellant would be coming in the next day.

(5)	The Appellant did in fact come to work the following day. On 4 February, a Sunday, he again came into work.  There was a further conversation between him and Mr Calvesbert.  He again expressed himself strongly, and it is common ground that there was, again, talk of resignation (though there was a dispute as to who said what).  It was his (primary) case that he was dismissed by Mr Calvesbert at that meeting, who treated him (wrongly) as having resigned.  The Respondent denied that.  It said that what happened was that the Appellant confirmed his previous resignation.  (Mr Calvesbert’s evidence, though the Tribunal does not expressly refer to it, was that the Appellant had said “I am not fucking working for those bastards any more”.)  Following that conversation the Appellant left the park, accompanied to the gate by Mr Calvesbert, on the basis that he would not be coming back and that his solicitors would be writing to the Respondent.  

(6)	Mr Calvesbert reported to Mr Dawson what had occurred.  At a board meeting on 6 February 2007, attended by Mr Dawson, it was minuted that “John MacKenzie is possibly resigning”.  The “possibly” is difficult to reconcile with the Respondent’s case that he had already unequivocally resigned, but the note was not made by Mr Dawson, still less Mr Calvesbert; and Mr Dawson’s evidence was that the language reflected the fact that nothing had yet been heard from the Appellant’s solicitors.

(7)	On 7 February 2007 the Appellant’s solicitors, Shoosmiths, wrote to the Respondent.  The letter set out his grievance about proposed changes to his bonus entitlement.  It then said this:

“In our view the Company has acted in breach of its duty of mutual trust and confidence towards Mr Mackenzie.  By failing to carry out any consultation or notification process in relation to the proposed amendments to the bonus scheme, it has failed to follow a fair procedure for any contractual variation.  Further, we have been informed by our client that Paul Calvesbert was instructed by you to escort our client off the premises on Sunday 4 February despite the fact that our client made it clear to the Company on several occasions that he had not resigned.  We have advised our client that this treatment of him amounts to a dismissal and as such will be an automatic unfair dismissal as you have failed to comply with the Statutory Dismissal Procedure.”

After making various other points the letter referred to the Appellant’s “constructive unfair dismissal and contract claims” and invited settlement proposals.  It will be noted that although Shoosmiths clearly assert that the Appellant has been dismissed, the letter is ambiguous about how the dismissal is said to have occurred.  Although the claim is described as being one of “constructive” unfair dismissal, the paragraph which we have quoted states that the Appellant had not resigned and appears, rather, to assert an actual dismissal by conduct.  

(8)	On 9 February the Respondent’s solicitors, DLA Piper, replied.  Mr Dawson told the Tribunal that he had seen and approved their letter before it was sent, though the letter itself says that there were some matters on which his further instructions were required.  The letter states that the Appellant had “resigned unequivocally” on 2 February and “confirmed his resignation” on 4 February, saying that he would be “contacting his lawyers about his letter of resignation”.  The reference to the Appellant saying that his lawyers would be writing might, in isolation, suggest only a threatened resignation; but the passage as a whole makes clear that DLA Piper are saying that the Appellant had definitively resigned, so that any letter would only be confirmatory.  Likewise, in theory any resignation might have been on notice, but the letter continues “For [the Respondent’s] record purposes [the Appellant’s] last day of employment was 4 February 2007”: that necessarily implies that the resignation was understood to have been with immediate effect.  Thus, in short, DLA Piper as well as Shoosmiths were plainly treating the Appellant’s employment as having come to an end on 4 February.  (In this connection we note also that they offered to operate the modified statutory grievance procedure under the Employment Act 2002, which only applies where an employment has been terminated.)

(9)	The Appellant was paid his salary up to 4 March 2007.  It does not appear that any explicit statement was made to him about the basis on which that was done, and it appears inconsistent with the Respondent’s position, as stated by DLA Piper, that he had resigned with effect from 4 February.  However, at some point in the succeeding weeks the Respondent seems to have thought that the Appellant should be treated as if he had given one month’s notice; and the payment of salary to 4 March would make sense on that basis.

3.	As will be apparent from that summary, although it is plain that the Appellant’s employment ended as a result of that sequence of events, there was some confusion in the statements both of the protagonists and of their advisers about how or precisely when that came about.  It is that confusion which is at the root of the problems giving rise to this appeal.

4.	On 11 April 2007 Shoosmiths presented a claim for unfair dismissal in the Employment Tribunal.  (There was also a claim for unpaid commission, but the sum in issue was subsequently paid.)   The effect of the pleading as to the termination of the Appellant’s employment is as follows: 

(1)	At paragraph 14 the Appellant gives his account of the meeting of 2 February.  He says he was asked if he was resigning and said he would have to speak to his solicitor.  Paragraph 15 reads:

“The claimant returned to work following this meeting and worked the weekend as normal.  On Sunday 4 February, Mr Calvesbert arrived at Billing Aquadrome and asked the Claimant if his position remained the same as it was on Friday.  The Claimant confirmed to Mr Calvesbert that he believed that the change to the scheme amounted to a fundamental breach of his contract of employment and he was not willing to accept it.  Mr Calvesbert mentioned the word resignation and the Claimant told him not to use that word as it was something he had not mentioned.  Mr Calvesbert asked the Claimant to hand over his keys and leave the premises when he had completed the paperwork he was doing as it would not suit the Respondent to have incomplete paperwork following the termination of the Claimant’s employment.”

(2)	That paragraph does not plead in so many words that Mr Calvesbert’s conduct on 4 February constituted a dismissal, but that is plainly what is intended: the following paragraph begins by pleading that the Appellant “was shocked that his employment had been terminated by Mr Calvesbert”.  

(3)	Consistently with that pleading, the Appellant gives the date of termination of his employment as 4 February.

(4)	After pleading additional facts and formally asserting claims for unfair dismissal by reference to sections 98, 98A and 103A of the Employments Rights Act 1996, the Appellant pleads, at paragraph 22:

“Further, or in the alternative, whilst the Claimant is clear that he did not resign and was dismissed, the Claimant asserts that the change to his bonus scheme which was carried out with no consultation or notification amounted to a fundamental breach of his contract of employment which would have entitled the Claimant to treat himself as having been unfairly dismissed by the Respondent.”

(5)	Thus the Appellant’s primary claim was plainly of an actual dismissal (albeit, perhaps, by conduct – by wrongly treating him as having resigned – rather than as a result of any express words of dismissal).  But paragraph 22 appears to be intended to raise by way of fallback a claim of constructive dismissal.  It is true that there is no explicit pleading that, if the Appellant – contrary to his case – did resign, he did so in response to the fundamental breach pleaded, but it can reasonably be inferred that that is intended.  Nor is it said when any such resignation occurred, but the reasonable inference is that it was on the pleaded date of dismissal, i.e. 4 February.

5.	The Respondent’s ET3 sets out its version of the circumstances of the termination as follows:

“On Friday 2 February 2007, the claimant advised Mr Calvesbert that he was resigning.  He said he was consulting his lawyer.  Mr Calvesbert told him he should go through proper channels.  On Sunday 4 February 2007 the claimant confirmed to Mr Calvesbert that he was resigning and that the letter would arrive from his solicitor the next day.  Given that he had told the respondent the fact that he was resigning, the respondent decided that to protect the business he would not be required to work his notice period and he left the site and was paid for the following month while not required to work.”

Presumably on the basis, implicit in that pleading, that the Appellant was to be treated as having given one month’s notice of resignation, the date that the employment ended is given in the ET3 as 4 March (which is consistent with the Appellant having been paid to that date).  Paragraph 21 of the ET3 reads as follows:

“If, which is denied it is found that the claimant was dismissed then the respondent contends that the dismissal was fair for some other substantial reason in that the claimant had repeatedly told the respondent that he was resigning, that he was advised to do so by his solicitor and that he no longer wished to work for the company leading to an irretrievable breakdown of trust and confidence between claimant and respondent.”

6.	The Appellant’s claim came on for hearing in Bedford in July 2007 before a Tribunal chaired by Employment Judge Moore.  After two days it was adjourned part-heard to a further three days in November.  Both parties were represented by counsel – in the Appellant’s case, Mr Patrick Green and in the Respondent’s Mr Daniel Northall.  At the conclusion of the hearing, on 23 November, the Judge announced that the claim was dismissed on the basis that there had been no dismissal of the Appellant.  He gave oral reasons.  The Appellant asked for written Reasons, which were sent to the parties on 19 February 2008.  (The delay in the supply of the Reasons appears to have been because the tape made of the Judge’s original oral reasons had been lost.  Counsel have in fact prepared an agreed note of the oral reasons, which, at least so far as form is concerned, bears no relationship to the eventual written reasons: nothing, however, turns on that for our purposes.) 

7.	The Reasons were short.  They can be summarised as follows:

(1)	At paragraph 2 the Tribunal recorded that Mr Green had made it clear that his primary case was that this was a case of “de facto dismissal” of the Appellant by Mr Calvesbert “on or about 4 February 2007”.  However, Mr Green had also made it clear that if necessary he would argue that the Appellant was constructively dismissed on that day.  That of course reflects the Appellant’s pleaded case.

(2)	At paragraph 3 the Tribunal said that it was unnecessary to set out the history of the dispute about commission (to which it referred as “bonus”); but it recorded a general finding in the following terms:

“It will suffice to say that dating back to March 2006 when the present owners took over the Company they made attempts to avoid paying the Claimant bonus that he was owed from a period prior to their ownership and seeking to impose upon him in terms of future earnings a scheme of payment that was considerably lower than he had enjoyed previously and with sales targets which they now admit were impossible to achieve.  Albeit obiter in the light of our decision we make this reference by way of background and note that the Respondents did conduct themselves in a manner likely to damage trust and confidence.”

(3)	At paragraphs 4 and 5 the Tribunal dealt with the events of 2 February.  The findings are quite short and not perfectly clear, but what they boil down to is that the Appellant became very excited and used language which at least threatened resignation; but that in all the circumstances he was not to be treated as having resigned there and then and the Respondent did not treat him as having done so.  He did, of course, as we have said, come in to work on the following two days.

(4)	At paragraph 6 the Tribunal recorded, very briefly, the evidence of the protagonists about the events of 4 February, which corresponded to the pleaded cases as we have set them out.  It did not, however, make any findings as to whose account it preferred.  

(5)	The Tribunal’s conclusions are at paragraphs 7 and 8.  They read as follows:

“Conclusions:  Constructive dismissal is a concept which contains elements of determination and causation.  It is for the claimant to discharge his burden of proof by showing that he resigned because of either a present or anticipated fundamental breach of his contract.  It is a concept that requires him to exercise a choice either to acquiesce to the breach or act upon it.  The Claimant has stridently argued throughout that he did not resign and has called evidence to support that contention.  The evidential requirements of the concept are not satisfied by the presence of a fundamental breach and a termination of the employment alone.  Causation is a quintessential element and the claimant in order to succeed must be able to say I resigned and I did so because of my employer’s fundamental breach.  This is not evidence that the Claimant could plausibly give in the face of his denial of resignation and it is not before us.  The Claimant has not discharged the burden of proving that he was constructively dismissed.”

8.	The Appellant appealed. The appeal came before this Tribunal, Judge Ansell presiding, on 27 August 2008.  At the start of the appeal Judge Ansell expressed the provisional view of the Tribunal that the Employment Tribunal’s findings and reasoning as to the events of 4 February 2007 were inadequate; and Mr Northall did not seek to persuade it otherwise.  Judge Ansell set out with some care what was wrong with the decision, at paragraphs 23 to 29 of the Judgment:

“23.	The key deficiency is a failure to make any findings as to what occurred on 4 February other than a fleeting note in paragraph 8 that the antipathy flowed from Mr MacKenzie to his employers. The inference from the Tribunal's decision, although they do not express it directly, is that the employment contract came to an end on 4 February. Certainly there is no suggestion that the Claimant worked thereafter. There is a finding that he was asked to leave Billing and we understand, although it is not specifically stated, that money in lieu of notice was paid, taking us to 4 or 5 March 2007. 
24.	Assuming, therefore, that the employment contract came to an end as a result of something that happened on 4 February, what was it that brought an end to that employment contract? In general terms there are four possible ways that an employment contract can come to an end. There can be a mutual termination, there could be frustration of the contract, and then the two normal ways, one of dismissal, actual dismissal, and the other of resignation. If resignation then that would lead on to the subsidiary but important issue of whether that resignation flowed from a fundamental breach of contract on behalf of the employers. In other words constructive dismissal. 
25.	This decision has failed to identify how precisely this employment contract came to an end. It clearly did come to an end on that day but how? It seems to us that it is incumbent upon this Tribunal to make a finding as to whether in objective terms there was a resignation. 
26.	They had dealt with the issue as far as 2 February in making a clear finding that he did not resign at that meeting, and yet on the day when resignation became the key issue the Tribunal failed to make that finding. 
27.	If objectively there was a resignation then they would have to go on to consider, in the light of their previous finding that there was conduct likely to damage trust and confidence, whether that was effectively a constructive dismissal. If the Tribunal were not satisfied that objectively there was a resignation then it seems to us that the only alternative must be that there was a dismissal. In other words that the employers, assuming that there would be a letter flowing from either the Claimant or his solicitor the following Monday, had jumped the gun by escorting him off the premises and instituting the payment of notice monies. 
28.	The Tribunal have looked at this issue in terms of express words of dismissal. It seems to us that that is far too narrow a way of looking at this issue. If employers have mistakenly taken the view that there was an effective resignation and thereafter taken action from their position to terminate the contract, it seems to us that that has the potential to amount to a dismissal, irrespective of what particular words were used by the employer on that occasion. 
29.	All these are issues which are missing from the Tribunal's analysis. Those matters flow from the Tribunal's basic task of making clear findings as to what was done and was said on 4 February. There was no way round that task and whilst it is in the practice of this court not to criticise Tribunals if they fail to go into each and every fact which has been raised before them, it does seem to us that in a case of this nature involving issues of resignation, actual dismissal and constructive dismissal, it was necessary to analyse in some detail what took place on 4 February, make clear findings of fact and then to come to conclusions on the law based on those findings.”

9.	The question then was what course to take in the light of those defects.  The Tribunal rejected the idea of a Burns-Barke order.  Judge Ansell said at paragraph 33:

“The realities are either it goes back for reconsideration to the same Tribunal with clear guidance from us as to the issues, or a fresh hearing.”

It opted for the former alternative.  Judge Ansell said at paragraphs 37-38:

“37.	We have thought about this matter very carefully and on balance and after careful consideration we are minded to send the matter back to the same Tribunal for full reconsideration. In the light of the comments that we have made in this decision and in the light of a list of issues that we will invite them to reconsider. We would invite counsel now to spend a little time together trying to agree a list of issues. 
38.	As I have indicated already, we do not necessarily want the Tribunal to look into the whole history again, and that may be a saving of time. There is, I repeat, a finding of fact or conclusion, certainly at the end of paragraph 3, as to the nature of the Respondent's conduct which is clear and it seems to us does not need to be reconsidered. Obviously there will have to be consideration of the effect of that behaviour if there was a resignation.” 

On that basis counsel were invited to submit a draft of the “list of issues” referred to at paragraph 37, which Judge Ansell made clear would, once approved, be annexed to the order.

10.	Counsel duly liaised and an order was promulgated the following day.  The meat of the order reads: 

“1)	The Appeal be allowed
2)	The Employment Tribunal’s finding of no unfair dismissal (including its findings that there was no dismissal at all) be set aside
3)	The case be remitted to the same Employment Tribunal for reconsideration and determination, including the determination of the issues in the Schedule to this order, in the light of and having regard to the judgment in this case
4)	The Tribunal to call for such further evidence or submissions as it may require to reconsider and determine the case as aforesaid
5)	There be a transcript of the judgment
6)	The hearing for the reconsideration and determination by the Tribunal be expedited”

The schedule reproduced counsel’s draft. It is headed “Issues to be decided by Employment Tribunal on remission”.  It reads:

“(A) What happened and what was said and done by the Claimant and Respondent, so far as material, on:

(1)	2nd February; and

(2)	4th February 2007?

(B) Looking at the events on the basis of the above findings, objectively:-

(1)	How and when the Claimant’s employment terminated; and in particular, whether by dismissal (under s. 95(1)(a)) or by resignation?

(2)	If the Claimant resigned, whether his resignation flowed from a fundamental breach of contract by the Respondent such that he was constructively dismissed under s. 95(1)(c)?

(3)	What was the reason (or, if more than one, the principal reason) for dismissal?

(C) The parties being agreed that any dismissal under s. 95(1) that the Tribunal may find would be unfair under s. 98:-

(1)	Whether Claimant was also dismissed unfairly under s.103A?

(2)	All issues as to remedy.”

11.	It is quite clear that the basis on which the case was remitted to the Tribunal was that the Appellant’s employment terminated on 4 February: see in particular paragraph 25 of Judge Ansell’s judgment.  The question which the Employment Tribunal was being asked to determine was whether that termination occurred by way of an actual (though not necessarily express) dismissal by Mr Calvesbert on that day or a resignation by the Appellant on that day.  The Appeal Tribunal clearly believed that those were the only two possible alternatives: the question was which was right.  (In principle there could also have been a resignation on 2 February, but the Employment Tribunal had decided against that, and this Tribunal saw no basis on which that decision needed to be reconsidered: see paragraph 26.)  That being the decision of the Appeal Tribunal, it is not for us to revisit it.  However, we should say that we respectfully agree with its approach.  The situation was unquestionably messy, as these things often are in real life; and that is reflected in the confusion in the inter-solicitor correspondence and the terms of the board minute of 6 February.  But it is unrealistic to regard the Appellant’s employment as having continued beyond 4 February, whether he was dismissed or resigned; and that is illustrated by the difficulty of finding any alternative means by which, or date on which, it came to an end.

12.	Although the reasoning of the Appeal Tribunal is entirely clear, there may be some room for criticism of the terms of its order and of the schedule agreed by counsel which it incorporated.  Specifically:

(1)	The reference in para. (4) of the order to the Tribunal “calling for further evidence” is inapposite: it is for the parties to decide what evidence they wish to adduce.  But it is in truth perfectly clear what was meant, namely that if the parties believed that any evidence should be called, i.e. over and above the evidence at the first hearing, the Tribunal should admit such evidence if it thought appropriate.

(2)	The requirement of para. (A) (1) of the schedule that the Tribunal decide what happened on 2 February was arguably redundant, since it had already made findings which the Appeal Tribunal had not questioned.  But it could be said to be undesirable for the Tribunal to make findings about the events of 4 February without re-establishing the jumping-off point of the earlier meeting.

(3)	The “how and when” language of para. (B) (1) of the Schedule was arguably unnecessarily general, since Judge Ansell’s judgment made it clear that the only “when” in the frame was 4 February.

We acknowledge these imperfections because, as will appear, the Employment Tribunal was troubled by them; but in truth they are not of great significance.  

13.	In accordance with the order of the Appeal Tribunal the case was listed for a further hearing before the same Tribunal sitting at Bedford on 29 July 2009.  It is regrettable that this was almost a year after the order remitting the case (and two years after the original hearing), particularly in view of the direction for expedition; but we have not sought to explore the reasons for the delay.  The parties expected that the Tribunal would proceed to hear and determine the remitted issues, and the Appellant had indeed returned specially from California in case he were required to give evidence.  But that is not what happened.  Instead, the Tribunal decided that the case was not in a condition to proceed and that a further hearing would be required.  By an order promulgated on 12 August the hearing was fixed for early December and directions were given for the exchange of witness statements and of skeleton arguments.  The order also incorporated a note by the Judge of the discussion which had taken place at the hearing, which was described as being intended to act as “an aide memoire to ensure that counsel include [the relevant points] in their skeleton arguments”.  

14.	The reasons why the Tribunal took the course that it did appear from the Judge’s aide memoire, as amplified in the Reasons for the Judgment now under appeal (as to which, see below).  They also appear from the near-verbatim notes kept by Shoosmiths, of which we have been provided with a transcript.  The Judge made no secret of the fact that he believed that the task which the Employment Tribunal had been set by the order of this Tribunal, and in particular by the terms of the schedule, was one which it ought not to be performing.  At the risk of unduly compressing his objections, we can summarise his position as being that the schedule required the Tribunal to address issues which did not arise on the way that the case had been put or on the evidence adduced by the parties: we deal with one aspect of his objections more fully at paragraph 24 below.  He was particularly critical of the terms of paragraph 4 of the order, which appeared to require the Tribunal to determine what evidence should be called, and of the implication in the schedule that it should decide how the employment terminated, independently of the parties’ pleaded cases.  He expressed himself in forceful language (describing the terms of the order, for example, as a “mystery”, and Mr Green’s submissions in relation to it as “nonsense”) and at considerable length.  He asked repeatedly for submissions on whether the Tribunal was bound by the terms of the schedule, having regard among other things to the fact that it was drafted by counsel.

15.	Although we have no doubt that the Judge’s concerns were genuine and founded on what he believed to be the correct legal analysis, we are bound to say that his way of venting them was not constructive.  There may have been some basis for some of his criticisms of the drafting of the order and/or the schedule; but, like it or not, it was the job of the Tribunal to comply with the order as best it could, and letting off steam about it was, if we may mix a metaphor, likely to cause more heat than light.  A further distraction from the performance of the Tribunal’s task was that the Judge was repeatedly critical of Mr Green’s inability, as he saw it, to explain to him the basis of the order of the Appeal Tribunal.  He made it clear that he believed that Mr Green should have come to the hearing prepared to justify the order.  Those criticisms were expressed in his aide memoire by repeated observations that the Tribunal was “disappointed to note” that counsel – in practice Mr Green – were unable to assist on the points which concerned it; but he subsequently acknowledged that he had expressed himself more robustly in the oral discussion, saying that “our dissatisfaction with Mr Green, whilst not, we think, improper or extreme, was obvious” (see para. 5 of the eventual Reasons).  We do not in this Judgment have to assess how well Mr Green coped in the unusual situation in which he found himself; but, as a matter of justice to him, we should record that we are far from sure that the Judge’s criticisms were fair.

16.	The Appellant and his advisers were understandably taken aback at the course which matters had taken.  They took the view that the Tribunal had, in effect, evinced an intention not to comply with the order of this Tribunal.  They applied to Judge Ansell for a review of the direction that the case be remitted to the same Tribunal, contending that the only fair course now was for there to be a complete rehearing.  That application was dismissed.  They then, by letter from Shoosmiths dated 30 October 2009, applied for the members of the Tribunal to recuse themselves, on the basis that that was the only proper course in circumstances where the Judge had made it plain that the Tribunal felt unable to approach the remitted hearing on the basis directed by this Tribunal.  The Respondents resisted that application.  Unaccountably, there was no response of any kind from the Tribunal. 

17.	For reasons into which we need not go, the remitted hearing was moved from December 2009 to May 2010.  Having had, notwithstanding that delay, no answer to his recusal application, the Appellant decided that his only recourse was to appeal to this Tribunal, on the basis that the Tribunal’s failure to respond amounted to a refusal.  That appeal was lodged on 27 April 2010.  Judge McMullen QC sensibly caused enquiries to be made with the Employment Tribunal.  These elicited the fact that the Judge had in fact drafted a response to the recusal application, directing that it be considered at the forthcoming hearing, but that as a result of an administrative error this had never been sent.  This failure is particularly regrettable given that it was not the first serious administrative error on the part of the Tribunal: see paragraph 6 above.  The appeal was stayed on the basis that it made more sense, given the imminence of the forthcoming hearing, that the recusal issue be dealt with in the first instance by the Tribunal itself on that occasion.  

18.	The hearing duly took place on 20 and 21 May 2010.  The Tribunal heard first the recusal application, which it refused, with reasons to follow.  It then proceeded to hear the substantive issues.  It reserved its decision.  The Judgment and Reasons were not promulgated until 9 December 2010, i.e. well over six months later.  (The parties were vouchsafed no explanation of this delay.  It is well established that, in ordinary circumstances, decisions of an employment tribunal should be promulgated within three and a half months of the conclusion of the hearing: see Kwamin v Abbey National Plc [2004] ICR 841.  We are well aware of the great pressure under which employment judges operate, and occasionally that deadline cannot be met – though in such cases the parties are entitled to an explicit acknowledgment and, so far as appropriate, an explanation or apology; but, given the history, this was certainly a case in which any such delay should have been avoided.)  The substantive decision of the Tribunal was to maintain its original decision that the Appellant had not been dismissed and that accordingly his claim for unfair dismissal failed.  We will return to the details of its reasoning in due course, but it is right to say that in the context of addressing the recusal application it continued to express its dissatisfaction with the reasoning of this Tribunal and the basis on which the case had been remitted to it.

19.	What is before us is the Appellant’s appeal against that decision, together with the earlier appeal to which we referred at paragraph 14 above – though in truth the latter is largely superseded.  The parties are again represented by Mr Green and Mr Northall.  

20.	Both the question of whether the Tribunal should have recused itself and the substantive issue of whether the Appellant was dismissed are before us.  It makes sense to deal with the latter first.  We start by setting out the Tribunal’s reasoning on the question of whether the Appellant was dismissed.

21.	At paragraphs 14 and 15 of the Reasons the Tribunal considers the question whether the Appellant resigned on 2 February and repeats its previous conclusion that he did not.  Since that conclusion is not in issue, we need not set out the reasoning in full.  The Tribunal summarised its findings as follows (para. 15):

“At its highest (and we can go no further in the absence of a verbatim account) the Claimant expressed a future intention to resign that would either follow upon or perhaps be effected by a letter from his solicitors the following week.  The Claimant in [his witness statement] puts it lower than that and states that he made it clear that he had taken the advise proffered by Mrs Drake and Mr Calvesbert and would pursue his concerns in writing.  It is trite law (e.g. Ely v YKK Fasteners (UK) Ltd [1993] IRLR 500 CA) that expression of intention to resign at a future point will not in law amount to a resignation.”

22.	The Tribunal then turned to the question of what happened on 4 February and thereafter.  As to this it said:

“16.	We turn then to the only other point pertinent to dismissal namely whether there was a de facto dismissal two days later on the 4th February 2007. By this time the earlier uncertainty about whether the Claimant would continue to report for work was resolved and Mr Calvesbert telephoned Mr Dawson and informed him that the Claimant had worked all day on the 3rd of February and was at his post at the present time. Mr Calvesbert informed him that he had reported the Claimant's resignation to the previous morning [sic]. However he then instructed Mr Calvesbert to check the Claimant's position.  He was not, as he has told us, surprised to see him at work as he had advised the Claimant to come to work as normal and to see if his differences could be resolved by discussion with Mr Dawson and because the Claimant had been advised by Mrs Drake that he should give notice.  He asked the Claimant if his position was the same as it had been on Friday and the Claimant replied that he wished to resign and would ensure that Mr Calvesbert had a letter from his solicitors the following Monday.  Following a further telephone conversation with Mr Dawson Mr Calvesbert told the Claimant that he should leave the park. No express words of dismissal were used and it is evident from the account of the conversation between Mr Dawson and Mr Calvesbert that Mr Dawson was seized of the view that the Claimant had resigned.  The actual words that Mr Calvesbert used to the Claimant were that he was not suspended, he remained on full pay and that someone would be in touch once the Respondents had the letter from his solicitors.  We have reminded ourselves of the rule laid down by the Divisional Court in Morton v Sundour Fabrics Ltd v Shaw (1967) ITR 84 and followed strictly by the EAT in Burton v Smith (1977) IRLR 351 that the failure of an employer to specify the date upon which an employment will end or give information from which it can be ascertained is fatal to a valid notice of dismissal.  The approach we must take is essentially the same as we should take in the event of ambiguous resignation. We are to take an objective view and pose for ourselves the question of whether a reasonable employee would interpret the words and/or conduct as a dismissal.  We have concluded that no reasonable employee could have concluded from these words that he was being dismissed at that point and we find as a fact for reasons we set out later that Mr Mackenzie did not form this conclusion.  We do not accept that he was formally escorted from the premises and prefer Mr Calvesbert's evidence that he may have strolled to the gate with him.  In his evidence in chief the Claimant places reliance on the board minutes to inform his belief.  They were not available to him at the time (or indeed as we understand it prior to disclosure) and could not have influenced his understanding of the exchange.  He has not prior to the present hearing expressly stated that he construed the conversation as a dismissal and the promised letter from his Solicitors informs the situation [sic] is at P213 of our original bundle.  It indicates that the author's firm has been instructed by Mr Mackenzie in relation to the proposed amendment to the terms of his bonus arrangement.  At the time in question the proposed alterations were to the forthcoming period's bonus not the past and thus it is difficult to see consistency with this indication and an employment that had terminated.  In the fifth paragraph of the second page they refer to their client's version of events of the 4th of February 2007 namely that allegation that Mr Calvesbert escorted the Claimant off the premises and state as follows 'We have advised our client that this treatment amounts to a dismissal'.  Thus it would seem that the Claimant achieved his belief in dismissal from his solicitors and not the words and conduct of the Respondent.  Further confusion is manifested by the last paragraph on that page which states that the author is instructed by Mr Mackenzie to bring a claim in the Tribunal or the High Court for constructive dismissal and contract claims.  At P216 of the same bundle we see the reply from the Respondent's Solicitors which discloses the fact that they were not at that point fully instructed since Mr Dawson was away and (incorrectly) stating that the Claimant had unequivocally resigned on the 2nd February 2007.  Whether it is because of privilege, because there are proceedings elsewhere or mere oversight we do not know but further exchanges have not been put before us. 
 
17. 	It is evident that the distinction between actual resignation and an expressed intention to resign has been lost on the Respondents.  Mr Dawson had no direct knowledge of what the Claimant had said and relied solely on Mr Calvesbert's account.  We have no doubt that he was seized of the belief that the Claimant had resigned or was in the throes of so doing.  The Respondents reasonably believed from the Claimant’s own assertion that they would receive a letter from the Claimant's Solicitors giving certainty to the situation.  There is no evidence before us from which we can conclude that they acted upon this belief to terminate the contract of employment.  The evidence is wholly consistent with a finding that they were content to wait for the perceived resignation to take its course and were intent upon paying the Claimant his full remuneration whilst it did so.  There is no evidence that disturbs their stated position to await the Claimant's Solicitor's letter. 

18. 	The case before us requires us to determine whether the Claimant was dismissed as alleged on the 4 February 2007.  In the course of addressing that question we have determined that there was not a resignation on the 2nd February 2007.  The parties for undisclosed reasons are anxious for us to go further and determine when the contract terminated and indeed it appears that in reliance on the assumption that it ended on or around the 4th February 2007 the EAT indicate that we should be able to do so. We are unable to comply; it seems probable that the termination and the circumstances of it occurred sometime after the 4th and since the matter appears to have fallen into the hands of the parties' solicitors it is likely therefore that the answer lies in that correspondence.  It is often the case that the early exchanges in potential litigation owe more to tactical posturing than accuracy but even taking account of that the Claimant's solicitors letter is contradictory in its terms and defies a clear understanding and the Respondent's Solicitor's rejoinder is, on its own admission, incomplete and made in the absence of full instructions.  An understanding of what transpired beyond that point is denied us since the parties have not put the evidence before us.  That is not in our view detrimental to our ability to give our judgment since what passed between the parties after the 4th of February 2007 is outside the remit of this case.  There is evidence of confusion and mistake in this case but ultimately the burden of proving dismissal rests with the Claimant.  He has not satisfied us on a balance of probabilities that there was a de facto dismissal on the 4th February 2007 and we accord with him in finding that he did not resign his employment on the 2nd of February 2007.  The burden rests with him and since it is not discharged we must dismiss this claim.”

23.	The Tribunal’s finding that Mr Calvesbert did not dismiss the Appellant on 4 February was unquestionably open to it on the facts, and Mr Green did not seek to challenge it.  But it followed from the basis on which the case was remitted – see paragraph 11 above – that in that case the Appellant’s employment terminated by his resignation; and the essential question for the Tribunal – question (B) (2) on the Schedule – was whether that resignation was in response to conduct by the Respondent entitling him to resign (which in fact rolls up two questions – “breach” and “causation”).  The Tribunal declined to make that finding or to consider that question, saying that the contract must have come to an end on some later date which it could not, on the material before it, determine.  That was not, with respect, a course which was open to it.  The issues which it had to determine had been fixed by the Appeal Tribunal, and it was its duty to determine those issues, whether it thought the underlying analysis was right or wrong.  Accordingly there was a plain error of law on the part of the Tribunal in failing to decide whether the Appellant had been constructively dismissed, and the appeal on the dismissal issue (UKEAT/0096/11) must be allowed on that basis.  We will return to the question of what order we should make in consequence.

24.	Strictly speaking, we need not examine the Tribunal’s reasons for not addressing the constructive dismissal issue.  But we will do so shortly, because the point may remain relevant hereafter.  They do not in fact clearly appear from the Reasons themselves, but they are adequately apparent from the note of the hearing of 29 July 2009 and the Judge’s “aide memoire”; and indeed they go back to para. 8 of its original Reasons quoted at paragraph 7 above.  The Appellant had in his witness statement and oral evidence steadfastly denied that he had resigned.  That does not of course mean that the Tribunal could not find that he did resign.  If he spoke words that, objectively, amounted to a resignation, the fact that he denied having done so, or having intended them to constitute a resignation, is irrelevant; and there is nothing objectionable in principle about a party succeeding on a pleaded “fallback” basis which is inconsistent with his own evidence but established on the facts.  Once the Tribunal had found that there was no actual dismissal, it was obliged by the terms of the remittal to proceed on that basis, i.e. that the Appellant had indeed said things on 4 February that amounted to a resignation.  The Tribunal was, it seems, uncomfortable with proceeding on that basis, but its fundamental concern was that, even if the Appellant had in fact resigned, his subsequent denial that he had done so meant that there was no evidence that could support a finding that he had resigned in response to the breach which he asserted, such a finding being of course essential to a finding of constructive dismissal.  But that does not follow.  The question for the Tribunal was whether the words which (objectively) amounted to a resignation were uttered because of a fundamental breach on the part of the Respondents.  The fact that he subsequently denied that those words amounted to a resignation – either because he misremembered what he said or because he disagreed about how it should be characterised – would not preclude a finding in his favour on that question: the question is what led him to say what he did.

25.	Our conclusion on the substantive issue means that it is unnecessary for us to express a view on whether the Tribunal should have recused itself.  We will dismiss the recusal appeal (UKEAT/0095/11) on the basis that it has become academic.  We should, however, we think, repeat in this context that, whatever the Judge’s doubts about the terms of the order of this Tribunal, it was unhelpful for him to express his views at the length, and with the strength, that he did.  A short record of the Tribunal’s concerns would have sufficed.  Complaining about the task which it had been set by the Tribunal – and about counsel’s responsibility for that state of affairs – was only likely to shake the Appellant’s confidence in the impartiality with which it would undertake that task.  

26.	The remaining question is what consequential order we should make.  Mr Green submitted that we were in a position not only to rule that the Appellant had resigned on 4 April but also:

(a)	to find that that resignation was in response to the proposed changes in his commission terms; and 

(b)	to find, on the basis of paragraph 3 of the Reasons for the Tribunal’s first decision (see paragraph 7 (2) above), that those proposed changes amounted to a fundamental breach of contract entitling the Appellant to resign and claim constructive dismissal.  

Mr Northall, by contrast, contended that if the appeal were allowed the only just course would be for all the issues to be heard again from the start.  He submitted that the Tribunal’s reasoning at paragraph 3 was inadequate and that once the question of breach was open it was impossible to hive off the other issues.

27.	In our view both those positions are too extreme.  We agree with Mr Northall that the reasoning at paragraph 3 of the initial Reasons is inadequate to support a finding of fundamental breach – that is not necessarily a criticism of the Tribunal since, as it acknowledged, it was making no more than an obiter observation.  Accordingly the case will have to be remitted to the Employment Tribunal for consideration of that question at least.  We also think that the question of whether the Appellant resigned in response to the proposed changes ought to be remitted.  It is true that on a common sense view it may be hard to avoid the conclusion that they were indeed the reason for his resignation; but we think that it is in principle wrong to decide that question when the exact nature of the breach has not been decided – the issues belong together.  But we see no need to start again from scratch.  The conclusion of this Tribunal in its earlier decision that the Appellant was dismissed, one way or another, on or by 4 February and the decisions of the Employment Tribunal that he did not resign on 2 February and that there was no actual dismissal on 4 February are self-contained and unimpeachable in their own terms.  Although we accept that it is not ideal for a tribunal – particularly, to anticipate, a different tribunal – to have to consider on remittal only certain specified parts of a case, we see no real difficulty here; and such minor awkwardness as there may be is a price well worth paying to avoid the whole case having to be re-run.

28.	Both counsel accepted, and we in any event are clearly of the view, that it would not be right for the case to be remitted to the same Tribunal.  The history which we have recounted means that the parties could not be confident that that Tribunal would be able to address the issues with a fresh mind.

29.	We accordingly direct that the case be remitted to a differently constituted Tribunal to determine, on the basis that the Appellant resigned on 4 February 2007, whether that resignation was caused by a fundamental breach of contract by the Respondent such that he was constructively dismissed within the terms of section 95 (1) (c) of the Employment Rights Act 1996.  (We have framed that issue, subject to minor tweaking, in accordance with head (B) (2) of the schedule to the previous order of this Tribunal.)

30.	We wish finally to urge the parties to consider whether they cannot now come to a compromise of this long-running dispute.  The Respondent has won the battle about whether there was an actual dismissal.  But it is now saddled with a finding that the Appellant resigned on 4 February.  In that connection it needs to appreciate that the Tribunal on the first occasion reached the clear conclusion, albeit obiter, that the proposed changes to the Appellant’s commission terms did indeed constitute a fundamental breach of contract; and that if that is indeed the case the obvious conclusion would be – as we have already observed – that the Appellant resigned in response to that breach.  We have not felt able to treat the Tribunal’s conclusion as determinative because of the absence of any detailed reasoning.  But if the Tribunal second time around reaches the same conclusion, it may be receptive to an application for costs on the basis that it was unreasonable to re-fight at least the former issue – though we emphasise that we are not in a position ourselves to say whether such an application should succeed.  

31.	The history of this case is, as we said at the outset, an unhappy one.  It is very rare and very regrettable that a case should have to be remitted for further findings, after a second appeal to this Tribunal, almost five years after the original dismissal.  We are sorry to have added, if only a little, to the tale of delay by ourselves coming close to the “Kwamin deadline”.  We can only plead the great pressure of work in this Tribunal.