Appeal No.	 EAT/1066/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 July 1997

Before
HIS HONOUR JUDGE PETER CLARK
MRS P TURNER OBE
MR K M YOUNG CBE

MR A HASSAN	APPELLANT

ODEON CINEMAS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D CARTER
(Of Counsel)
Ms E Heslop
North Islington Law Centre
161 Hornsey Road
London
N7  6DU	
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT	

		JUDGE CLARK:   The principal question raised in this appeal is what was the effect of date of termination of the Appellant’s Contract of Employment?

The facts
	We take these from the London (North) Industrial Tribunal’s Extended Reasons dated 7 August 1996.  

	The Appellant commenced employment with the Respondent as a Customer Service Assistant in April 1992.  On 22 September 1995 he was suspended by the Respondent following his involvement in a fight with a fellow employee at their premises on 20 September.  That suspension was confirmed by a letter dated 23 September from the General Manager, sent to the Appellant’s London address at 17 Dunbar Road, Wood Green.

	Following that incident the Appellant was charged with a criminal offence and granted bail by the Magistrates Court.  It was a condition of his bail that he should reside outside London.  He opted to live with his brother in Liverpool and left London.  The Tribunal found that he did not notify the Respondent of his new address in Liverpool.  

	The Respondent heard nothing from the Appellant and on 2 November 1995 the General Manager again wrote to him at his London address in these terms:
“Dear Mr Hassan,
I write further to the incident which occurred outside of the Odeon Holloway premises and my subsequent letter dated 23rd September 1995.
As you have not responded to my request to contact me I must assume, in the absence of any other communication from you, that you have terminated your employment with this Company and unless I hear from you within 7 days following the date of this letter, then arrangements will be made for your P.45 to be posted to you.”

	Again the Respondent received no response to that letter.  In January 1996 the Respondent was informed by the Appellant’s brother, who was employed by them, that he was now living in Liverpool.  On 4 January 1996 the General Manager wrote to the Appellant (Recorded Delivery) at his Liverpool address as follows:
“Dear Mr Hassan,
I write further to the incident which occurred outside of the Odeon Holloway premises on Wednesday 20th September 1995, and my subsequent letter dated 2nd November 1995.
As you have not responded to my request to contact me and since you have been absent for the past 15 weeks, I must assume in the absence of any other communication from you, that you have terminated your employment with this Company.  Therefore, unless I hear from you within 7 days following the date of this letter, arrangements will be made for your P.45 together with any moneys due to be posted to you.”

	It seems that the Appellant never read that letter because he did not have any identification which would allow him to collect it from the Post Office.  The Respondent never did send the P.45 to the Appellant.  

	On 16 March 1996 he returned to the Respondent and asked if he could commence work.  They told him that as far as they were concerned they thought that his Contract of Employment was terminated and they handed him his P.45 which showed a leaving date of 23 September 1995 and a cheque for outstanding monies.  He submitted an Originating Application complaining of unfair dismissal to the Central Office of Industrial Tribunals on 3 April 1996.  

The Industrial Tribunal Decision

	The preliminary issue which came before the Industrial Tribunal was whether the complaint was time-barred.  

	For the Appellant it was submitted that the contract came to an end either on 16 March 1996 when he was handed his form P.45, or alternatively in January, seven days after the Respondent sent the letter of 4 January.  In either event the claim was brought within the three month primary limitation period.

	The Tribunal rejected both submissions.  It found that the Contract came to an end on 9 November 1995, that is seven days after the Respondent’s letter of 2 November.  The Tribunal put their finding in this way at paragraph 6 of their reasons:
“.... We reject this argument because it is clear from the correspondence that the letter sent on 11 January is a duplicate of the letter that was sent on 2 November and it is clear from the letter of 2 November that the Respondents have said that if they do not hear from the Applicant within seven days from the date of that letter they will assume that the contract has been terminated.  That we find amounts to a dismissal and the termination of the contract and subsequent events do not change that fact.”

	The Tribunal then went on to find that it was reasonably practicable for the complaint to be presented within time.  The reason why the Appellant did not know that his employment had been terminated was due to his own conduct in not contacting his employers.  Accordingly, the complaint was dismissed.

The Appeal

	The Respondent’s have chosen not to send a representative to appear at this hearing.  We have taken into account their answer which, in addition to the Industrial Tribunal’s reasoning, advances two further grounds for resisting the appeal.  The first is that the Appellant resigned by way of his conduct, at latest on 9 November 1996.  The second is that the Contract of Employment was frustrated.  As to frustration, we note that the Respondent did not appear at the hearing before the Industrial Tribunal.  They relied on written representations.  However, they did not raise the issue of frustration in their Notice of Appearance.  In these circumstances we shall not permit this new point, which requires further findings of fact by the Industrial Tribunal, to be raised for the first time on appeal.  See Kumchyk v Derby City Council [1978] ICR 1116; Russell v Elmdon Freight [1989] ICR 629.  We shall return to the question of resignation, sometimes referred to as “self dismissal” later in this judgment.

	We turn now to the submissions advanced by Mr Carter in support of the appeal:
(1)	He first submitted that by failing to attend work after 23 September 1995 the Appellant 	was not in fundamental breach of his Contract of Employment.  He was suspended from 	employment by the Respondent.  It follows that he was not obliged to attend for work 	until that suspension was lifted.  It never was.

	We think that submission must be right and in this connection we bear in mind the distinction between suspension pending a decision to dismiss, where the Contract of Employment subsists - see Bird v British Celanese Ltd [1945] KB 336, and a suspension following dismissal, pending appeal, where it does not - Savage v J Sainsbury Ltd [1981] ICR 1. 
(2)	It follows that on 2 November 1995 there was no repudiatory breach on the part of the Appellant capable of acceptance by the Respondent, even if the words used in the Respondent’s letter of that date could properly be construed as words of acceptance.  Plainly the words used could not constitute an actual dismissal, because the Respondent was there assuming that the Appellant had terminated his employment.
	There was in fact no resignation by the Appellant.  Further, we accept Mr Carter’s submission that the Appellant can not be taken to have dismissed himself, see London Transport Executive v Clarke [1981] ICR 355.
(3)	Since the letter of 2 November could not, in these circumstances, operate so as to terminate the employment by way of dismissal, it is unnecessary to consider whether the contents of that letter were effectively communicated to the Appellant.
	In these circumstances we are bound to conclude that the Industrial Tribunal fell into error in finding that the contract terminated by way of dismissal on 9 November 1995.
(4)	It follows, on the facts, that the earliest date on which dismissal could have taken place was by the letter of 4 January 1996, within the three month time limit.
(5)	In fact, having found that the Industrial Tribunal fell into error, we shall ourselves substitute a finding that the employment terminated by way of dismissal on 16 March 1996, when the Respondent handed the Appellant his form P.45.  That was the effective date of termination of this Contract of Employment.

	Accordingly, this appeal is allowed and the case will be returned to a fresh Industrial Tribunal for a hearing on the merits of the complaint of unfair dismissal.