Appeal No.	 EAT/698/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 March 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MISS C HOLROYD
MR D A C LAMBERT

MS V A EDWARDS	APPELLANT

SURREY POLICE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G MENZIES
(Representative)
Free Representation Unit
Fourth Floor
Peer House
8-14 Verulam Street
London WC1X 8LZ	
For the Respondents	MR T LINDEN
(of Counsel)
Messrs Eversheds
Solicitors
Senator House
85 Queen Victoria Street
London EC4V 4JL	

	MR JUSTICE MORISON (PRESIDENT):     Ms Edwards was employed by the Surrey Police.  She brought a complaint against them alleging that she had been unfairly dismissed.  She resigned from the Police Service by a letter dated 17 July 1997.  Her letter of resignation was described by the Industrial Tribunal as clear and unambiguous in its intention of effecting an immediate termination of her contract of employment and to quote their words:

“... appears to have been written following a long series of incidents at the workplace which the Applicant felt made her position untenable.  The letter is lengthy and rational and although probably written under stress, does not give the appearance of being ill considered nor one which was written in the heat of the moment.”

	The issue before the Industrial Tribunal on 19 February 1998 was, whether the complaint of unfair dismissal had been presented to the Industrial Tribunal within the three months period, following the effective date of termination.  The dates are such that, if the date of termination of her contract was 17 July 1997 then her complaint was presented one day out of time, but that if her complaint related to a termination which occurred after 17 July then her complaint was within time.  

	No criticism can be made of the Tribunal’s conclusion that if the complaint had been presented out of time it fell outwith their jurisdiction applying the language of the statute which requires complaints to be presented within three months and only in rare circumstances, where it is not reasonably practicable for that time limit to have been complied with, will a late application fall within the Tribunal’s jurisdiction.  The question is, when did the employee terminate the contract under which she was employed?.  If an employee is required to communicate the fact that she is terminating her employment when she is alleging constructive dismissal, then the communication in this case was, subject to a point which may have to be dealt with later, given no earlier than 18 July and probably the following Monday.

	We have been entertained by arguments from Mr Linden as to the legal analysis of Section 95 (1) (c) and Section 97 (1) (b).

	Section 95 (1) (c) is dealing with one of the three circumstances in which an employee is dismissed by his employer and is the constructive dismissal provision.  

	Section 97 (1) (c) is dealing with the identification of the effective date of termination in relation to an employee who is constructively dismissed.  It is the date when the contract of employment is terminated.

	The Industrial Tribunal concluded that the employee herself decided on 17 October that she did not wish to work for her employers any more, and that was the date when she drafted her letter, and that was the date when she effectively terminated her employment contract.

	It was argued on behalf of the Appellant that the approach of the Industrial Tribunal was wrong; that for the termination of a contract to take effect, the fact that it was being terminating must be communicated in one form or another to the other party to it, as with a dismissal by an employer on notice or without notice.

	Mr Linden seeks to support the Industrial Tribunal’s decision.  He says that the effective date of termination is a purely statutory question, which does not permit of consideration of subtleties of the law of contract, and it depends on the answer to the question, “When did the termination of the contract take effect”.  In a constructive dismissal case, he says, it is the date when the employee decides that he or she cannot continue to work for the employer, having themselves resolved that mutual trust and confidence had been destroyed.  It was thus when she walked out on 17 July that the contract then came to an end.  He says that communication of that position is not required.

	As a matter of law, he submits, the employee need not know whether any letter that happens to be written to the employer has actually been received.  An employee knows when the contract has come to an end in a sense that they can then present their complaint to the Industrial Tribunal accordingly.  They know all the facts on which they intend to rely.  It is their own state of mind and their own fixed intention, in their own mind not to turn up for work, which is sufficient to constitute the termination of the contract.  He says therefore, that although he would not support the Tribunal’s decision in the way quite it was presented, they were entitled to conclude that she had decided to leave her employment on 17 July 1997; that is the date which she had put on her IT1 and accordingly, the Tribunal were right to conclude that it had been presented one day out of time.

	In support of this argument we were referred to three decisions, to only two of which we need to make reference at this time.

	The first is a decision of the Employment Appeal Tribunal presided over by Browne-Wilkinson J (as he then was) in a case called Robert Cort & Son Ltd v Charman [1981] ICR 816.  The question at issue was, “What was the effective date of termination within the meaning of the legislation, in respect of the dismissal of an employee summarily without notice?”.  Was it on the date when the employee was informed that the employment was being terminated and given the summary dismissal or, was it the date on which the notice, if it had been given, would have expired - the argument being, of course, that the employee was not obliged to accept what would appear to have been a repudiatory breach of the contract by the employer and was entitled therefore to maintain that the employment relationship subsisted throughout the notional period of notice.

	That argument was firmly rejected and (if we might say so with respect) rightly so, on the basis that, as Mr Linden so happily put it, the statutory definition of the effective date of termination and, when a termination takes effect, is not to be surrounded by the subtleties of the law of contract on these sort of issues.  But it does not follow that because the doctrine of repudiation and acceptance may not fit in easily with the termination of an employment relationship, a communication of a termination is not a prerequisite to the termination of a contract of employment.  

	It seems to us perfectly clear, as a matter of general principle, 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 is indeed at an end.

	The case itself therefore throws no light, as it seems to us, on the question at issue but Mr Linden sought to support his citation of that authority by reference to the second case to which we wish to refer called BMK Ltd and Another v Logue [1993] ICR 601.  It does not seem to us that this decision, in any way, suggests that Mr Linden’s primary submission is correct.  What had happened in that case was that Mr Logue was employed as a chairman and chief executive of two companies, under separate contracts of employment.  In relation to each contract of employment the holding of the office of chairman or director, as the case might be, was an integral part of it.  The termination of his chairmanship, or directorship underlying his chairmanship, would bring those contracts to an end, even though he might not have fully appreciated the legal consequences of it.

	The question at issue was a time question and the question was to be answered by reference to the state of mind, or knowledge, of the employee as of 17 March and the Industrial Tribunal had concluded that, as of 17 March, he knew that both boards had passed resolutions removing him as directors from the company.  The conclusion of the Employment Appeal Tribunal, which was reviewing the decision of the Industrial Tribunal, is to be found on page 611 at letters A - B.

“... and in particular we would add, though that is not the point of the case itself, the purposes of section 55 (4) of the Act of 1978 to all cases of constructive dismissal.  In our judgment one has to have regard to the statutory definition which, at the risk of tedious repetition, is the date on which the termination takes effect, and if one applies that to the present case it seems to us to come down to whether one should, on the facts found by the industrial tribunal, come to the conclusion that the contractual relationship between the two companies BMK and Holdings and the applicant had come to an effective termination on or before 17 March 1992.  It seems to us inappropriate to ascribe that result to the applicant’s intellectual understanding of the consequences of the fact of which he was well aware, namely, that he had ceased to be a director of either of the two companies.  Whether the termination had taken effect in each case does not, in our view, turn on whether the applicant understood that that was what had happened.”

	Again, it seems to us, that there is nothing in that case which supports Mr Linden’s submission.  There was no doubt that Mr Logue had been told by 17 March 1992 that his directorships had come to an end and the court rightly said (if we might respectfully say so) that it was not necessary to decide whether or not that was at the moment of the removal of the directorships or when the Applicant became aware of the removal.  So that point was specifically left open but they went on to say:

“It is, however, not, in our view the right test to apply to ask:  did the applicant understand the effect of what he knew had happened?”.

	Accordingly, in those circumstances, there is nothing in that decision to support what we would regard as a remarkable proposition that a contract of employment could be terminated, or the termination could take effect, without communication between the parties to it.  It could lead to difficulty.  It seems to us that employers should know where they stand when an employee leaves.  In this case the employers appear to have written a letter which was, at the least, compatible with the employment relationship continuing until the date when they received the letter from the employee.  It is not an infrequent occurrence that employees find their working life intolerable, walk out in a huff, but do not intend to bring their employment relationship to an end.  It seems to us that, unless there has been a proper communication between the employee of the fact that they are regarding themselves as no longer employed, whether by words or conduct, their employment relationship has not terminated.

	Accordingly, we consider that the Industrial Tribunal were wrong in their approach to the issue in this case.  It is a question of communication between the parties and they have not made any finding to the effect that the Applicant in this case had communicated the fact that she was terminating the contract or treating it as terminated by the 17th.

	The question now arises as to whether, in the light of this, the matter should be further remitted to the Industrial Tribunal for further consideration.  Suffice it to say at this time that we simply allow the appeal and at 2 o’clock we will deal with the question as to whether it should be remitted back.