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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McLoughlin v. Post Office [2000] UKEAT 670_00_0112 (1 December 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/670_00_0112.html Cite as: [2000] UKEAT 670__112, [2000] UKEAT 670_00_0112

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APPEARANCES

 

For the Appellant	MR P DOUGHTY (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE BELL: This is a preliminary hearing of Mr McLoughlin's appeal against the decision of the Employment Tribunal held at Southampton on 30th March 2000. The decision was that Mr McLoughlin's had resigned on 20th August 1999 and that his complaint of unfair dismissal was dismissed. The tribunal decided that they could not interpret the claim which was put before them as including a free-standing claim for breach of contract separate from the claim for unfair dismissal by reason, it was alleged, of the respondent's fundamental repudiation of Mr McLoughlin's contract of employment. It refused an adjournment to serve a witness order on Mr Baker, whom Counsel for Mr McLoughlin wished to call but who could not be found. That matter is not taken any further on this appeal. Mr McLoughlin applied for a review of the Employment Tribunal's decision but that was refused.

1. The short history of the matter is that Mr McLoughlin was employed by Royal Mail from September 1987 until his resignation with effect from 20th August 1999. By an Originating Application received by the Employment Tribunal on 19th November 1999, just in time, Mr McLoughlin complained of unfair constructive dismissal. He complained that an allegation was made that he had failed to carry out a second delivery of mail on 22nd May 1998, which was soon after he had acted as union representative, representing a colleague in disciplinary proceedings, during which he, Mr McLoughlin, had been very critical of Royal Mail managers. Mr McLoughlin is and was very critical of Royal Mail disciplinary procedures and what he saw and still sees as Royal Mail's failure to adhere to them. In the event, he was found guilty of wilful delay of the Mail and a penalty of dismissal suspended for two years was imposed.
2. Mr McLoughlin was unwell. He suffers from cardiovascular problems, which there is no need further to detail. He felt unable to return to work with that suspended sentence handing over him. He appealed but his appeal was dismissed in February 1999. He remained off work receiving sick pay. He and solicitors wrote some letters of complaint but it was not until 5th August 1999 that Mr McLoughlin wrote indicating that unless the disciplinary decision was removed he would resign with effect from 28th August 1999. The Royal Mail did not respond to that ultimatum so his contract of employment came to an end.
3. Mr McLoughlin contended that it was an implied term of his contract of employment with Royal Mail that it would comply with agreed disciplinary procedures and would not take action against him in a manner which was unfair and contrary to principles of natural justice and that Royal Mail was in breach of that implied term of his contract. He was entitled, he said, to treat that as a repudiatory breach because of the serious impact which the disciplinary decision had on his personnel record and future with Royal Mail, not to speak of its adverse affect on his health.
4. In its Notice of Appearance Royal Mail defended its disciplinary actions and the suspended dismissal which it had imposed in Mr McLoughlin's case.
5. The Employment Tribunal reminded itself of the principles set out by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1978] QB 761, which includes the statement that for constructive dismissal the employer's conduct must be sufficiently serious to entitle the employee to leave at once and, moreover, the employee must make up his mind soon after the conduct of which he complained. If he continues for any length of time without leaving he will lose his right to treat himself as discharged because he will be regarded as having elected to affirm the contract of employment. See page 769C of the report.
6. In Mr McLoughlin's case the tribunal noted Mr McLoughlin's evidence that following the dismissal of his appeal he did not want to lose his job. His solicitors had made an application to the Employment Tribunal on 20th April 1999 alleging victimisation in the workplace and the wrong instigation and use of disciplinary proceedings. The tribunal held that it had no jurisdiction to hear that claim since Mr McLoughlin was still employed by Royal Mail and it gave extended reasons for that effect on 22nd June 1999.
7. Mr McLoughlin told the Employment Tribunal with whose decision we are concerned, that he then knew that he had to accept the situation or resign but he did not raise resignation until August. He was unwell with his cardiovascular problems and he was suffering from stress, but he told the Employment Tribunal that there was no change in his health over the period in question. He was always stressed when he thought about the Post Office and Royal Mail. Against that background the tribunal decided that Mr McLoughlin's claim of unfair constructive dismissal could not succeed. They decided that in waiting from February to August 1999, over which period of course he was drawing sick pay as an employee of Royal Mail, amounted to an affirmation of his contract within the principles of Western Excavating.
8. Mr McLoughlin filed a Notice of Appeal and provided submissions in writing which raise a large number of criticisms of Royal Mail's conduct towards him and of the tribunal's decision. Had the matter rested there, we would have been unable to find that any of them raised a point of law upon which this appeal could succeed.
9. Mr Doughty, who appears for Mr McLoughlin this morning under the auspices of ELAAS, has not tried to deter us from that view. However, Mr Doughty, to whom we are very grateful and to whom we hope Mr McLoughlin also is very grateful, has raised two possible areas of appeal. He has felt able to discard the first, but he has pursued the second before us this morning.
10. The first possible area of appeal, Mr Doughty at first thought, was that the tribunal might have erred in law in refusing to accept that Mr McLoughlin's Originating Application raised a claim of breach of contract which was free-standing from his case of constructive unfair dismissal. He thought that the last three paragraphs of the details of complaint could be seen to raise such a claim of breach of contract. However, upon further consideration, it has become apparent to Mr Doughty, as indeed it is to us, that having raised that matter with Mr McLoughlin's solicitors, the tribunal was told by the solicitors that the breaches of contract were alleged as part of the case of unfair constructive dismissal. At the Employment Tribunal hearing Mr McLoughlin was represented by Counsel and she took the same line before the tribunal, advising Mr McLoughlin, as we have been told this morning, that if he wanted to raise breaches of contract which were not encompassed in his claim for constructive unfair dismissal, he would be better to do so by ordinary civil proceedings. We understand the good sense of that, particularly if Mr McLoughlin was going to make a claim for damages for personal injury in the form, we presume, of aggravation of his pre-existing ill health by reason of Royal Mail's alleged breach of contract. In the result, Mr Doughty did not think, and we agree with him, that he could sensibly pursue that matter as a ground of appeal.
11. The second area of potential appeal, however, which Mr Doughty did argue before us was as follows Mr Doughty submits that an Employment Tribunal, hearing a case such as Mr McLoughlin's, has to be careful to distinguish the facts of the case of someone who is not actually going in to work but is ill at home, from the person who complains about his treatment at work but nevertheless goes in and subjects himself to the control of his employer and gets on with his duties as employee. He contends, and no doubt this is right, that it is much easier to infer affirmation of the contract in the case of such an employee. It may need only a very short period of work indeed to enable an Employment Tribunal to say, in effect, "Well the employee had his choice and by going into work he has chosen to affirm the contract rather than to treat the breaches of contract by the employer as a repudiation which he accepts by his resignation". In this case Mr Doughty accepts that this was not just a case of several months going by between the February rejection of Mr McLoughlin's appeal and his resignation in August. He was actually drawing his pay as an employee throughout that time. But he has referred us to two cases, the first Bashir v Brillo Manufacturing Co Ltd [1979 IRLR 295 and the second W E Cox Toner (International) Ltd v Crook [1981] IRLR 443, which he can rightly rely upon as suggesting that too much weight can be attached to the mere passage of time, especially in a situation where the employee is not at work but at home sick.
12. We have considered both those authorities. We accept what is said at the end of paragraph 15 of the report of Cox Toner as follows:

"Provided the employee makes clear his objection to what is being done, he is not to be taken to have affirmed the contract by continuing to work and draw pay for a limited period of time."

13. We bear in mind Mr Doughty's argument that an employee might be allowed a longer period of time if he is away sick before it can properly be concluded that he has affirmed his contract of employment. However, in our view, in this case, there were two particular features which the tribunal was entitled to take particular account of and clearly did take particular account of in coming to its conclusion. The first was that, as Mr McLoughlin accepted, he was to some extent put to a decision by the rejection of his appeal in February 1999, but he wanted to stay in Royal Mail's employment. Secondly, Mr McLoughlin accepted that the time for a decision did come, if indeed it had not come before, when his first complaint to the Employment Tribunal was rejected in June 1999. Yet he did not then resign, he waited a further two months.
14. Having considered the matter and Mr Doughty's very helpful argument, we are afraid that we do not see any ground of appeal in this case which would have any real prospect of success if the matter were allowed to go ahead to a full inter partes hearing. We therefore dismiss Mr McLoughlin's appeal at this stage. We hope that he appreciates that this tribunal has every sympathy with him over the loss of his long-term employment and over his continuing ill health, but in our view it would be doing him no service at all if we let this appeal go ahead when it is inevitable that it would be dismissed in due course.