Appeal No. EAT/186/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 March 2002
Judgment delivered on 10 April 2002

Before
MR COMMISSIONER HOWELL QC
MR J HOUGHAM CBE
MRS T A MARSLAND

MR P BROWN	APPELLANT

MR P TOMLINSON & OTHERS t/a TOMLINSONS DAIRIES	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P GREATOREX
(of Counsel)
Instructed by:
Messrs Richard C Hall & Partners
Crown Buildings 
121A Saughall Road
Blacon
Chester CH1 5ET	
For the Respondents	MR S GORTON
(of Counsel)
Instructed by:
Messrs Allington Hughes
Solicitors
10 Grosvenor Road
Wrexham 
LL11 1SD	

MR COMMISSIONER HOWELL QC

1	This is an appeal by Mr Paul Edward Brown against the Decision of the Shrewsbury Employment Tribunal dismissing by a majority the claims of unfair dismissal he had brought against his former employers Mr Philip Tomlinson & Others, trading as Tomlinsons Dairies.  

2	There is no dispute that from August 1993 until September 1999, Mr Brown had been employed as a clerk and a computer operator at the Respondents’ dairy, and that following the installation of a new computer system in August 1999 which reduced the workload in the office, discussions took place between him and the Respondents about a possible redundancy and what other work in the dairy he might transfer to do.  His Originating Application dated 22 November 1999 alleged that he had been unfairly and constructively dismissed on 13 September 1999 by being told that he could no longer go on working as an office worker, and would only be employed from then on as a process worker in the dairy: this was so unreasonable that he left.  The Respondents, in their Notice of Appearance, admitted that there was a potential redundancy situation affecting clerical staff, but contended that Mr Brown had himself forestalled the operation of a proper redundancy procedure by resigning prematurely and precipitately before consultation could take place, and before a decision had been taken.

3	Having heard the evidence about what actually happened, the Tribunal by a majority rejected Mr Brown’s complaints that he had been unfairly dismissed (constructively or otherwise), although on the basis of a different legal analysis of the facts from that put forward either by the Applicant or by the Respondents.  Applying the analysis in London Transport Executive -v- Clarke [1981] ICR 355 to which they referred, the Tribunal held that in fact by leaving his employment and declining to return after 13 September 1999 (as he did: either to carry on working or to engage in discussion or consultation about redundancy which the Respondents were offering), Mr Brown had repudiated his own contract of employment.  It had therefore come to an end only by their acceptance of his repudiation.  This had taken place by letter of 23 September 1999 and had, in the circumstances, been reasonable.  
4	The facts and reasons on which this conclusion, and the consequent dismissal of Mr Brown’s complaints, were based can be summarised from the Tribunal’s Statement of Extended Reasons sent to the parties on 20 December 2000, as follows:

“4.  On 7 September 1999 Philip Tomlinson met with the applicant.  A discussion ensued about the workload in the office and whether or not there was a possibility that the applicant could work within the Dairy as a Process Worker.  It was agreed that the parties would talk again on Thursday 9 September 1999.”

There was then a delay in providing details of the process worker’s job, so that nothing conclusive happened on Thursday 9 September or until the following Monday, when:

“9.  On Monday 13 September 1999 the applicant attended Philip Tomlinson in his office.  Mr Tomlinson gave him the written details of the Process Worker’s job that the applicant had asked for.  The applicant said that he needed time to consider the matter further but would continue working in the office for the time being.  There was little or no work for the applicant to do, and Philip Tomlinson suggested to the applicant that he should take a holiday.”

The evidence of both sides was that this was agreed, and that Mr Brown would be ringing Mr Tomlinson on the Tuesday or the Wednesday of the following week, after he had considered the job details.  The Tribunal’s findings of fact then continued by recording that:
“10.  Under cross-examination the applicant admitted that Mr Tomlinson never said that he was sacking him if he did not take the Process Worker’s job.
11.  Somewhat surprisingly, the applicant, upon arriving home, then set about writing a letter and hand delivered that to Mr Philip Tomlinson on the same day, 13 September 1999……..In that letter, the applicant states as follows:-
“You did not consult with me regarding the termination of my job in the office, and I was taken totally by surprise and I was shocked by your manner.  Please give me the reasons in writing for my dismissal from the office job.”
12.  The respondents replied to that by letter dated 15 September 1999, …….In that letter the respondents state:-
“I had hoped to meet you to discuss various matters but Richard tells me that you will not meet me and that I must write to you.  This is very unsatisfactory.  I allowed you time off work to think about alternative work and you inform me that you will not accept the Dairy job that I had suggested.  You should report to work and we could then at least discuss the situation directly.  I cannot consult you on these matters properly in your absence.  Am I to take it by your refusing to meet me and your absence from work, that you wish to resign?  We must sort out your position.”

The letter then went on to talk about the redundancy situation saying:

“I must choose between you and Jane as to whom should be made redundant.  This is still the consultation stage and I would welcome your views in the course of face to face discussions. ……I look forward to hearing from you by return confirming whether you have resigned or wish to co-operate with the above exercise.  In your letter of 13 September, you ask for written reasons for your dismissal.  I have not dismissed you.  Please confirm why you thought you had been dismissed and the date on which you say your employment came to an end.”

5	The Tribunal then recorded that Mr Brown had replied fully to that letter on 18 September 1999, expressing reluctance to have any meeting at that stage, and that this had been followed by the Respondents finally writing to him on 23 September 1999 stating amongst other things:
“My partners and I did not dismiss you.
I tried to help you and to make matters clear.  I have repeatedly asked you to meet me to resolve your misunderstanding.
You consider that you are no longer employed and nothing I have said and done has succeeded in persuading you that I have not terminated your employment.  This situation cannot continue and I will have to organise the workforce as I see fit for the proper management of the firm.  In the light of your refusal to work, unauthorised continued absence to date and your repeated statement that you are no longer employed, I will have to plan without you.
I consider that you have resigned.  Your P45 is enclosed.  You will have to do what you think is best for you.”

6	The majority Decision, as we have already said, was that the Applicant’s contract of employment had been terminated by reason of the Respondents accepting the employee’s repudiation of the contract, as communicated by them to him by that letter of 23 September 1999.  They continued by recording in paragraphs 19-24 of their Extended Reasons that:
“19. The applicant’s letter of 13 September 1999 is inconsistent with the evidence that he gave to the Tribunal.  The letter of 13 September 1999 clearly indicates that the applicant considered that his employment had been terminated on that date.  Yet, in the evidence given to the Tribunal, the applicant clearly indicates that he agreed to take a holiday and that he would go back to the respondents to discuss the matter further.
20.  The respondents make it clear in their letters to the applicant that he has not been dismissed and that they wished to discuss the matter with him.  The applicant, for reasons best known to himself, but which are not convincing to the Tribunal, adamantly and steadfastly refused to go back to the respondents to discuss the matter.
21.  In the respondents letter of 15 September 1999, they say to the applicant:-“You should report to work and we could then at least discuss the situation directly.”  The applicant refused and neglected to return to work, thus forcing the respondents to write their letter of 23 September 1999. 
22.  The majority consider that the applicant repudiated his contract of employment by refusing to return to work.  The respondents accepted that repudiation.  By so doing, the respondents terminated the contract of employment.
23.  The respondents had absolutely no choice.  They did their utmost to reassure the applicant, tried to accommodate him by discussing a possible alternative job, urged him to come back to work, to none of which the applicant responded reasonably at all.  The majority of the Tribunal consider that the respondents had no choice.  They had to continue to run their business.  The majority consider that the respondents acted reasonably in treating the repudiatory conduct as sufficient reason for determining the contract.
24.  In reaching this decision, the majority of Members have found considerable help in the guidance given by the Court of Appeal in the case of London Transport Executive -v- Clarke [1981] ICR 355.”

7	Paragraph 25 of the Tribunal’s Extended Reasons records the reasons for the minority member disagreeing on the question of unfair dismissal: that member considered that there had been a true redundancy situation, but that the dismissal was unfair solely by reason of the Respondents having given the Applicant insufficient time to consider his position in respect of the alternative job.  The Tribunal were unanimous in dismissing all the other claims included in the Originating Application including one of alleged sex discrimination; none of those are sought to be re-opened on this appeal.

8	The grounds of appeal sought to be pursued before us on the full hearing of the appeal pursuant to the directions given at a preliminary hearing on 4 May 2001 consisted of a challenge to the majority’s findings for having confused and failed to deal adequately with the two principal contentions advanced by Mr Brown, namely that he had been dismissed by the Respondents by reason of redundancy without proper consultation, or alternatively that there had been a constructive dismissal by reason of the Respondents’ unreasonable conduct in effectively presenting him with a fait accompli, in that he was either to be redeployed to unsuitable work or must face dismissal.  On his behalf, Mr Greatorex argued that there could be no doubt there had been a redundancy situation here, and that the Tribunal’s analysis of the situation as one of repudiation by the employee by analogy to the Clarke case was flawed.  They had failed to identify a reason for the dismissal as coming within one of the potentially fair grounds under section 98(2) Employment Rights Act 1996; nor had they made and recorded clear findings and reasoning to demonstrate how they reached the conclusion that the actual dismissal they found (presumably for “some other substantial reason” ) had been fair.  Their failure to make any finding on the constructive dismissal allegations was a further error, and in all the circumstances, the only course was to remit the whole case to the Tribunal for rehearing.  

9	We have, however, concluded that the arguments of Mr Gorton for the Respondents are to be preferred, and that there was no error of law on the part of the Tribunal such as to require taking that course.  In the first place we agree with Mr Gorton that the Tribunal’s factual findings make it clear that although there was a potential redundancy situation, there was no question of Mr Brown having in fact been dismissed by the Respondents for that reason at any stage.  Matters had simply not been allowed to get that far, because of Mr Brown’s own refusal to co-operate with the consultations and discussions the Respondents were seeking to put in train before any question of deciding to dismiss him or anyone else for that reason could arise.  That, in our judgment, is clear from the passages we have already quoted from the Tribunal’s findings about the actual sequence of events in August and September 1999, and on that footing no further finding or explanation from the majority on the question of redundancy was needed.  That possibility was necessarily precluded, and the actual way in which the contract of employment was brought to an end made absolutely clear, by their finding recorded in paragraph 22 of the Extended Reasons that the Applicant had repudiated his contract of employment by refusing to return to work, and the Respondents had accepted that repudiation by terminating the contract in circumstances amounting to a dismissal for the purposes of section 95 of the Employment Rights Act 1996, on the authority of London Transport Executive -v- Clarke.  That finding was a justified one on the evidence, and correctly based in law on the authority of that case, and we can find no error of law in it.  

10	We further agree that there was no error of law in the Tribunal’s failure to deal more than they did with the contention that Mr Brown had resigned in circumstances amounting to constructive dismissal.  On the facts found, in particular the agreement on 13 September 1999 that Mr Brown would take a few days holiday from work before returning to resume discussions, there was no evidence of any repudiatory conduct on the part of the employer at that time; and indeed Mr Brown accepted as much in cross-examination, as recorded in paragraph 10 of the Tribunal’s Extended Reasons.  Moreover nowhere in the subsequent correspondence recorded by the Tribunal is there anything that could amount to an explicit or implicit resignation by Mr Brown so as to bring a subsisting contract to an end by reason of the employer’s conduct.  On the contrary he continued to assert that it was the Respondents who had already brought the contract to an end by dismissing him.  Even if that had not been so and his failure to go back to work after 13 September could be construed as an implied resignation, the majority’s findings at paragraphs 20 - 23 of the Extended Reasons that it was he, not the employers, who was being unreasonable are conclusive against the idea of any repudiatory conduct by the employer such as to justify resignation.

11	Finally on the question of fairness we are unanimously of the view that the same paragraphs of the Tribunal’s Extended Reasons embody clear and sufficient findings to show that all relevant questions under section 98(1) and 98(4) of the 1996 Act were properly addressed by the majority, and what the reasons for their conclusions were.  These were that Mr Brown had repudiated his contract of employment by refusing to return to work when asked, the Respondents in accepting that repudiation had terminated his contract by reason of his conduct, and that the Respondents had acted reasonably in treating that conduct as sufficient reason for determining the contract.  We do not for our part consider that those findings, though succinctly expressed, leave any room for reasonable doubt as to the basis on which the claim for unfair dismissal failed, and they were justified by the evidence recorded by the Tribunal. 

12	For those reasons, this appeal is dismissed.