Appeal No. EAT/129/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 24 February 1993

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MR A FERRY MBE

	MR R H PHIPPS

MR D BROWN	APPELLANT

WIRRAL METROPOLITAN BOROUGH COUNCIL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MRS E ANDREW
	(OF COUNSEL)
Messrs Bruce Piper & Co
Solicitors
1 Mabledon Place
London WC1H 9AJ

For the Respondents	MR S MADDOX
	SOLICITOR
Wirral Borough Council
Town Hall
Brighton Street
Wallasey
Wirral
Merseyside L44 8ED

	JUDGE HARGROVE OBE QC:  This is an appeal from a decision of the Industrial Tribunal that there was no jurisdiction to hear the case because the application was out of time.  The question is when the employment came to an end.  The Tribunal held that the relevant date was 30 April 1990.  The Appellant, who claims to have been constructively dismissed, contends at the hearing that the date was 31 March 1991.  Another date in November has been suggested and I understand, though it is not a matter which is before us, that there is a second application before an Industrial Tribunal in relation to a different date of alleged dismissal.

	The Appellant was employed full time as a quantity surveyor by another Council, not the Respondents, but he was also employed at 91/2 hours a week as a countryside ranger at Wirral County Park.  A dispute arose between the parties because the Respondents sought to introduce a new rota code.  This resulted, at least from the Appellant's  side, in some acrid correspondence, the Appellant taking the view that his duties were non-negotiable.

	The Tribunal held that he had ceased work for the purposes of the employment at the end of April 1990.  On 8 February 1991 the Appellant in a letter re-iterated that the additional duties were non-negotiable.  He refused to come to a meeting.  When there was no reply to that he took the view that that failure to reply amounted to constructive dismissal and he regarded himself as dismissed as from 31 March 1991.  On 26 November 1991 he wrote a "Without Prejudice" letter purporting to resign because of the Respondents' failure to observe the terms of the contract.

	The Tribunal found that from the evidence of the Appellant, he had told the head ranger in March 1990 that he would not be working the revised rota.  He was not paid by the Respondents after April 1990.  It appears, and I will come to this in more detail later, that the employers continued to regard the Appellant as being employed by them and that is the problem which confronted the Tribunal and indeed confronts us today.

	The passage in the Tribunal's decision which sets forth their views occurs at paragraph 5 which reads:

"The preliminary matter for the Tribunal to determine in the circumstances is whether the application dated 11 May 1991 was within the period of 3 months beginning with the effective date of termination.  The burden of proof in that respect falls on the applicant.  Having regard to the totality of the evidence, both documentary and oral, and on the balance of probabilities, we are not satisfied that it was." 

Pausing there, we remind ourselves that questions of this nature are mixed questions of fact and law and there is good authority in the Court of Appeal that we should not interfere with such findings unless the wrong test has been applied.  It continues:

"The applicant's oral evidence was clear and unambiguous.  Following the events in March 1990 the applicant told the Head Ranger he would not be working the revised rota; he did not do so and indeed did not work at all after 30 April 1990, which we find to have been the effective date of termination of the applicant's employment.  We were told the respondents have not paid the applicant since the end of April 1990.  We do not accept that the absence of any reply from the respondents to the applicant's letter of 8 February 1991 could in the circumstances justify the applicant contending on 31 March 1991 that he had (thereby) been constructively dismissed.  The applicant's refusal to work after 30 April 1990 can only be interpreted as his treating the introduction of the new rota and additional hours as being repudiatory conduct by the respondents then, even though he did not so state to the respondents who were thereby led to believe the applicant's employment was continuing.  On the basis that the effective date of termination of the applicant's employment was 30 April 1990 his application ought to have been presented within 3 months of that date.  It was not."

	The Appellant contends that the Tribunal here applied the wrong test.  It is suggested that the Tribunal should have asked the following questions.  (One has to bear in mind that this was a Preliminary matter designed, after I am told some correspondence, to elicit what was the date when the employment came to an end).  The first question was whether the employers' conduct could amount to repudiation.  It is accepted on both sides that because this is a Preliminary Hearing that matter can be assumed without in any way indicating what should be the proper approach at a full hearing.  Secondly, whether the employee was entitled to treat the conduct as repudiatory?  Third, did the employee accept repudiation?  Fourth, what date did he accept the repudiation and fifth when did the employer accept the date of repudiation?

	We do not consider that the final point is a valid test for repudiation in such cases but it must be accepted that the manner in which the parties continued to treat the contract as valid is a vital question.  Here the Tribunal's approach seems to have been that the cessation of work and the non-payment of wages was decisive and I for my own part and not speaking for my colleagues, have to admit that at one stage I was attracted to that approach.  However, the fact that the correspondence shows that after the date upon which the Tribunal finds the contract came to an end, both parties were treating the matter as still alive was a vital piece of evidence which required considerable weight to be given to it.  For example, on 8 May 1990 the Council are writing to the Appellant in these terms:

"If you are not to attend I must assume that you have resigned your post".

This is continued in similar vein on 26 July 1990 with the words:

"I note that you have not attended for duty since the beginning of May.  Under the circumstances you are, of course, in breach of your existing contract of employment by not undertaking your duties".

Finally, on 10 January 1991 the Respondents write:
"If you are not prepared to meet with me I will have no other alternative than to take steps to terminate your employment with the Authority."

	The period of time which has elapsed since the breach is of some, but not of decisive importance.  We have been referred to Bliss v South East Thames Regional Health Authority [1987] ICR 700, the relevant passage occurring at page 716 in which Dillon L.J. having looked at Western Excavating case and W E Cox Toner (International) Ltd v Crook makes this comment:

"These are, however, merely guidelines to be applied to the facts of any particular case.  In the present case the cardinal factor, as it seems to me, is that the authority was repeatedly prepared to give the plaintiff time to make up his mind and to pay him his salary while he was making up his mind.  Browne-Wilkinson J. indicates that the innocent party could further perform the contract to a limited extent while reserving his rights to accept the repudiation.  But I see no need for him to take that precaution of an express reservation when the employer has himself allowed the employee time to make up his mind."

	In this case it is said the conduct of the Council was within that area of permitting the Appellant time to make up his mind whether he would continue with the contract or not.

	We consider that the Tribunal's approach was flawed in regarding that the belief of the employer as only of marginal importance upon the issue of whether there had been a repudiation.  In our view, on that basis, this Preliminary issue should be retried before a new tribunal.  Before leaving the case I am asked to make certain comments by my colleagues.  I do so quite willingly. 

	It seems to us here that the Respondents have behaved throughout in the way in which they have dealt with this problem with the utmost leniency, courtesy and as good employers.  It is singularly unfortunate therefore that our decision may seem to penalise them, but it has a wider approach as well.  It would be singularly unfortunate if this approach which we have adopted towards this appeal should discourage good, courteous and thoughtful employers from giving adequate time for their employees and themselves to negotiate and reach a reasonable decision.

	I am also asked to indicate that we have of course made no indication as to our views on the merits of this matter and another body may very well find that the situation is not entirely to the Appellant's favour.