Appeal No.	 EAT/541/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 July 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR E HAMMOND OBE
MR J A SCOULLER

GOLDWELL (Hair Cosmetics) Ltd	APPELLANTS

MRS J TEMPLE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR M WEST
(Senior Advocate)
Peninsula Business Services Ltd
Stamford House
361-365 Chapel Street
Manchester
M3 5JY	

	MR JUSTICE MORISON (PRESIDENT):	The purposes of this hearing is to determine whether there is an arguable point of law in an appeal which Goldwell (Hair Cosmetics) Ltd wish to advance against a decision of an Industrial Tribunal held at Brighton on 5th February 1998. By their decision the tribunal unanimously concluded that the applicant, Mrs Temple, had been unfairly dismissed; that she was entitled accordingly to a basic award of £1,590.93; and she was awarded compensation in the sum of £1,676.65.

	The tribunal’s decision is perhaps somewhat shorter than is desirable in cases such as these, but we have not been persuaded to the view that it fails to inform the parties why they have won and lost, and adequately set out their reasons. 

	What is in issue on this appeal is primarily the question as to whether the Industrial Tribunal were entitled to conclude that the applicant had not resigned but had been dismissed.

	Mrs Temple had been working for the company from 18th October 1987 until 30th June 1997. She had had a series of absences due to illness suffering from complaints such as sore throats and tonsillitis.

	The company are engaged in the business of manufacturing and supplying hair products the salons and cash and carry market. The question arose as to whether she might be suffering from a complaint which was connected with the chemicals which were being produced at work by the employers.

	Mrs Temple was diagnosed to be suffering from a condition called rhinitis. 

	On 23rd June 1997 she was asked to attend a meeting with the Finance Director, Mr Hill, to see how her medical problem could be resolved and her absences stemming therefrom and matters sorted out in the long-term.

	What happened was that very sensibly the company asked her permission for a report to be obtained for their benefit from her own doctor. As we understand it, she was quite happy for that report to be sent directly to the company. She had that discussion with Mr Hill on 23rd June 1997.

	On 27th June 1997, Mrs Temple wrote two letters, the first to Mr Hill, which we have a copy of, and the second to the Chairman of the company. The first says this:

“The conversation I had with my doctor regarding my employment with you, he recommends that I do not return to work as the chemicals and perfume don’t agree with my health condition.”

To the Chairman she wrote:

“I just wanted you to know that I have enjoyed working for you. I have been working for the company for nine and a half years and due to my ill health I have to leave you. I am upset that I have to leave and I do hope that I have been a good worker for you. I did put every effort into my work and I’m sincerely sorry that I have to leave.
I will miss you all.
Thank you very much.”

	After receiving the report from the doctor, the company wrote to Mrs Temple in which they said:

“I acknowledge receipt of your letters of resignation dated 27 June and having now received your doctor’s medical report, which confirms your opinion, and as you have stated you will not be working your notice period, I confirm that we accept your resignation with effect from 30 June 1997, the date when your letters were received.
I enclose for your attention our June payslip. which shows that you owe the Company the sum of £9.22 which has arisen due to your SSP [statutory sick pay] receipt not covering your May salary overpayment. However, at this stage we will not be seeking to recover the sum. Your P45 will be issued to you under separate cover as soon as possible.
If you have any queries, please do not hesitate to contact me.”

In due course Mrs Temple presented her IT1 to the Industrial Tribunal alleging that she had been unfairly dismissed as from 30th June 1997.

	The first issue, therefore, for the Industrial Tribunal to determine was whether the applicant had been dismissed, or whether her employment had come to an end as a result of her resignation. That required them to construe the letters which were treated by the company as letters of resignation against the factual matrix, namely the circumstances in which those letters came to be written.

	The conclusion of the Industrial Tribunal was that the first letter to Mr Hill simply confirmed the conversation she had had with her doctor regarding her employment when he recommended that she did not return to work as the chemicals and perfume did not agree with her health condition. The applicant wrote a letter on the same day to the Company Chairman saying how much she had enjoyed working for the respondent and saying that she had been working for the Company for 9½ years but due to her ill-health she had to leave.

	It seems to us that there is a clear distinction between a person who indicates that they are going to give notice of termination of their employment, and a person who is in fact doing so. It seems to us that, on a proper construction of the two letters to which I have referred, neither of them could be treated as a letter of resignation. The first to Mr Hill was plainly indicating the medical position. The second, saying that she was sorry that she had to leave, was no more than a notice of her impending departure and she could reasonably have assumed that what was then required, as the company had indicated, would be a discussion with her following the receipt by them of the medical report from her doctor. That medical report was received by the Company on 4th July, and the letter accepting or purporting to accept her resignation, was written on 8th July. In those circumstances, it seems to us quite plain that the Industrial Tribunal were well entitled to conclude that this was not a case where there has been a resignation even though the Company had misconstrued the two letters. It seems to us, therefore, that the conclusion of the Industrial Tribunal that there was no resignation but a dismissal, was one which they were entitled to arrive at having regard to the terms of the letters. We ourselves would have arrived at the same conclusion had we been called upon to make such a judgment.

	It seems to us, therefore, that interesting though the argument may have been as presented by Mr West as to the way a tribunal should approach the issue as to whether there has been a resignation, those factors and arguments do not, as it seems to us, apply. The issue before the Industrial Tribunal was simply a question of looking at the letters against the background facts and deciding whether or not they amounted to a resignation. That was a factual issue essentially for them, and it is not to be complicated by reference to any previous decided authority.

	In relation to the second contention made by Mr West, ably, on his client’s behalf, it seems to us that no criticism can be made of the Industrial Tribunal’s decision that this was a case of unfair dismissal. Once the tribunal had concluded that the Company had dismissed her, it follows that they had done so without any prior consultation about the terms of the medical report which had been received. They had not discussed the terms on which she would cease to work for them, the terms of her leaving. 

	Accordingly, it seems to us that it was entirely appropriate for them to make the judgment that every reasonable employer would before dismissing have carried out some further interview process of the sort to which I have referred. In those circumstances, it seem to us that Mr West’s contention that the Industrial Tribunal have not really reasoned out their decision, whilst understandable in terms of the brevity with which the decision is expressed, has no merit ultimately.

	Finally, in relation to the amount of the award. It is to be noted that the compensatory award was nine weeks’ notice pay at £176.77 per week, which was a gross figure and not a net one.

	It seems to us that the Industrial Tribunal were well entitled to deal with the notice pay as a gross figure rather than a net one. What they were seeking to do was to put her into the position she would have been in if she had not been unfairly dismissed. The reasoning of the Industrial Tribunal which is underlying their decision, is that they were of the view that had the Company appreciated that it was dismissing the applicant rather than accepting her resignation, they would have paid her off in terms of giving her money in lieu of notice and would have paid that sum gross as is traditionally done. Thus, justice and equity was being achieved by awarding her a gross and not net figure in that respect. It seems to us also that they were not required to reduce that sum by reference to any statutory sick pay amounts that she might have received during that period because, again, the tribunal were entitled to take the view that every reasonable employer faced with these circumstances would have made the payment gross and without reference to any deductions that could be made against it by virtue of some statutory sick pay arrangement.

	In those circumstances, we are of the view, having looked at this matter with particular care, that there is no arguable point of law to be raised in this appeal, despite the able submissions of Mr West on behalf of the Company. Accordingly, the appeal will be dismissed.