Appeal No. EAT/581/98

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 17 November 1998

Before
THE HONOURABLE LORD JOHNSTON
MISS S B AYRE
MR W SPEIRS

MR DENHAM	APPELLANTS

UNITED GLASS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR T MURRAY
(Solicitor)
TH Murray 
Stirling	
For the Respondents	MR J CLARK
(Solicitor)
Morton Fraser,
Edinburgh	

LORD JOHNSTON:     In this appeal the appellant employee challenges a finding of the Employment Tribunal that he resigned from his employment with the respondent employer, as opposed to having been dismissed.

The position in fact, is relatively clear on essential points.

The appellant having worked for the respondents for a number of years, intimated by letter dated 20 March 1997 (R1) in his own handwriting, that he was terminating his employment at the end of the night shift of 18 April 1997, giving as a reason that he was becoming self-employed and was going to run his own business. That letter of resignation is in clear and unambiguous terms as was so found by the Tribunal. The appellant handed the letter to his supervisor on 20 March 1997 and asked him to pass it on to the respondents' personnel department. It was not, however, opened by that department until Monday 24 March. By that time the appellant had changed his mind and decided to retract his resignation. There is a dispute in fact, as to precisely how he did this, but at the very least by Sunday 23 March he had informed, verbally, his supervisor to that effect. Thereafter as a matter of history, the appellant received a letter on the 25 March from the respondents, accepting his resignation (R2). The response to this by the appellant was to remonstrate with his employer, under particular reference to a letter dated 30 March 1997 (A3), which can be referred to for its terms and is effectively a plea for reinstatement.

Mr Murray, who appeared on behalf of the appellant submitted, as a matter of the law of contract, the appellant's letter of resignation should be treated as an offer to terminate the employment, which offer was withdrawn before it had in fact been accepted by the employer. That being so he submitted that the contract was terminated by the employer in circumstances which amounted to dismissal.

Mr Murray had a wholly separate approach based upon the case of Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 to the effect that by the time the Tribunal heard the evidence there were circumstances amounting to "special circumstances" surrounding the termination of the employment, which should encourage the Tribunal to conclude that effectively, resignation had not been achieved. Particular reference was made to a medical report which indicated that at the time of the reported resignation the appellant was under stress for various reasons and was not, therefore, acting totally rationally. Reference was made generally to Harvey on Employment Law in relation to the section under Unfair Dismissal and paragraphs 225 to 263.

Mr Clark, who appeared for the respondents submitted, as a matter of law, once a resignation had been intimated in clear and unambiguous terms it could not be withdrawn and the contract was thus terminated. He referred to Riordan v War Office [1959] 1 WLR 1046, Bryan v George Wimpey & Co 3 ITR 28, and Harris & Russell Ltd v PSG Slingsby [1973] IRLR 221. With regard to the issue of "special circumstances" he submitted that the cases made it clear that what that issue was concerned with, was whether or not there had been in fact an intention to resign, and the matter could not be relevant if the resignation was in clear and unambiguous terms, and the employer at the time had no reason to assume that it was not intended to be as such.

In approaching this matter, it is important to bear in mind that the general law of contract maintains a sharp distinction between repudiation on the one hand and notice of determination on the other. In Harris supra, Sir Hugh Griffiths quotes with approval the judgment of Buckley LJ in Decorwall International v Practitioners in Marketing Ltd [1971] 1 WLR 361 in the following terms:-

"A repudiation and a notice of determination are clearly different things. A repudiation may be withdrawn at any time before acceptance. A notice of determination validly given cannot thereafter be withdrawn without agreement."

His Lordship then goes on to apply the principle to a contract of employment, stating that once notice is given by either side it cannot be withdrawn, save by agreement. The position is confirmed in Bryan supra and is again reiterated by Diplock J in Riordan supra, where he says at page 557:-

"The giving of a notice terminating the employment, whether by employee or employer, is the exercise of the right under the contract of employment to bring the contract to an end, either immediately or in the future. It is a unilateral act, requiring no acceptance by the other party, and, like a notice to quit a tenancy, once given it cannot in my view be withdrawn save by mutual consent."

These are clear unequivocal statements of the general law with regard to contracts of employment, in support of the principle that once notice to determine a contract has been given, either by the employer or the employee, it cannot be withdrawn unilaterally. In the case of the employee that means that when resignation is intimated in clear and unambiguous terms, it need not be accepted by the employer in order to determine a contract. The contract is determined by the intimation of the notice which cannot thereafter be withdrawn unilaterally. Accordingly, in the present case, the attempts by the appellant to withdraw the notice or indicate his change of mind, are nothing to the point. For the situation to alter once the resignation was intimated there had to be the agreement of the employer which was not given in this case, since no offer to reinstate was made.

Mr Murray's valid attempt to invoke the notion of "special circumstances" is also doomed to failure when that proposition is properly understood. It is perfectly clear to our mind from the cases that "special circumstances" relate to whether or not the resignation was really intended, and thus bear upon whether it is given in clear and unambiguous terms.

In Kwik-Fit supra the Tribunal state at paragraph 31:-

"Let us first look at the problem from the approach of sound management. As we have said, the industrial members take the view that the way in which this Industrial Tribunal have expressed themselves puts too high a burden upon employers. If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment, personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure ('being jostled into a decision') and indeed the intellectual make-up of an employee may be relevant (see Barclay). These we refer to as 'special circumstances'. Where 'special circumstances' arise it may be unreasonable for an employer to assess a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the 'special circumstances' the intention to resign was not the correct interpretation when the facts are judged objectively."

This passage clearly focuses the circumstances where the issue of "special circumstances" may arise. We note that in the following paragraph, the Tribunal go on to equiparate resignation with repudiation of the contract of employment, and with respect with that proposition we would not agree. The giving of notice to terminate a contract of employment by the employee is a right which cannot be prevented by the employer from being exercised, although in certain circumstances such as failure to give sufficient notice specified in the contract, it might be treated as a breach of contract as well, giving rise to a claim for damages if it caused any loss. Equally a lawful determination by the employer may still give rise to statutory claims by the employee such as unfair dismissal. What must be clearly understood that the act of resigning, if clearly made, is not a repudiation of the contract requiring acceptance by the employer. It is a unilateral act determining the contract at common law. If there is doubt as to whether resignation is really intended, then the issue of "special circumstances" may come into play.

In the present case there is no question but that the resignation when intimated was in clear and unambiguous terms, and there is no room for any notion of "special circumstances" not least with hindsight against a background that the appellant may have been depressed at the time.

In these circumstances while we consider it singularly unfortunate that the employer chose to accept the resignation in the sense of not agreeing to take the employee back, that is nothing to the point. The matter requires to be determined by reference to the law.

In these circumstances and for these reasons this appeal is refused.

Appeal dismissed.