Appeal No.	 EAT/802/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 April 2000

Before
HIS HONOUR JUDGE COLLINS CBE
MISS A MACKIE OBE
MRS T A MARSLAND

MR S MEHMOOD	APPELLANT

THOMAS CARR LTD	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	CATHERINE RAYNER
(of Counsel)
Instructed by
Kirklees Community Law Centre
5 Lion Chambers
John William Street
Huddersfield
West Yorkshire HD1 1ES	
For the Respondent	MRS E. JOYCE
Employment Affairs Advisor
The Confederation of British Wool Textiles Ltd
Merrydale House
Roydsdale Way
Bradford
BD4 6SB	

JUDGE COLLINS:

1.	This is an appeal against the decision of an employment tribunal sitting at Leeds whose extended reasons were promulgated on 26 May 1999.  They dismissed the appellant’s claim that he was unfairly dismissed and his claim that unlawful deductions had been made.

2.	The appellant is now 48 years old and was a winding chargehand employed by the respondents from 1975 until December 1998.  After April 1994 he never returned to work because of ill health.  He had a variety of ailments and when he was seen in October 1995 he was complaining of diabetes, angina, eye problems, tennis elbow and deafness. After that meeting in October 1995 there was no contact of any kind between him and the respondents until October 1997 when because of some extraordinary error in the respondents' office, some tiny sum was paid to him and he received a P60 in relation to it.  

3.	This seems to have stimulated in him a desire to come back to work. In July 1998 he applied to return and a meeting was fixed on 28 August to discuss the prospects but he was too ill to attend it. Not surprisingly the employers, who appear to have behaved with remarkable sang froid in the circumstances said,  “Well, we want a medical report to ensure that you are fit to come back to work and we do not want a sick note.” What they got was a sick note and subsequently a report of no great substance saying that the appellant was fit to return to work, although when the employers later saw him that was somewhat belied by the fact that he still had problems with his left arm which made it difficult to contemplate his coming back to work; 

4.	Now on the basis that he did have a medical report saying that he was fit to return to work there were some serious discussions about what the appellant could do. They culminated in a number of meetings and in particular one on 20 November 1998 which the tribunal found to be inconclusive.  What had happened was that a job had been offered which was available as from the following Monday. There were concerns about it on the part of the appellant but the tribunal does not appear to have concluded that at the meeting on 20 November, he refused the alternative employment.  On the contrary they record at paragraph 4(n) that the evidence of Mr Ahmad was that the appellant left saying that he was going to consider the position and that he would contact the respondent further. At 4(o) they note that on 2 December Mr Kaye of the respondents wrote saying: 
“I have had no contact with you and I consider your employment with the company to have ceased.”
which indicates that Mr Kaye was not of the opinion that at the meeting on 20 November the appellant had there and then refused the job.

5.	The conclusion which the tribunal reached was set out in paragraph 15: 
“The Tribunal accordingly found that the Applicant had, therefore, unreasonably withdrawn from employment and had resigned by refusing to accept the alternative employment which the Respondent offered to him at the end of his absence from work.”

6.	They held in paragraph 16 that the other possible analysis would derive from a finding that the applicant had been dismissed by reason of redundancy, but they plainly did not find that was what had happened and said so.  

7.	The appeal involves consideration of a short point of law.  On the facts found by the tribunal did the appellant resign or was he dismissed?  If he was dismissed we shall have to remit the case to the tribunal for a hearing of an unfair dismissal claim on the merits.  It may be that this would be a fruitless exercise from the appellant's point of view because the tribunal might well hold that he was fairly dismissed in all the circumstances, but that is not for us to express a definitive opinion about today.  The argument is best put by reference to the decision of this appeal tribunal in Rasool v Hepworth Pipe Co Ltd [1980] IRLR 88.  That was a case where the employees had attended a mass meeting and the employers wrote to them saying that they had broken their contract by attending an unauthorised meeting during working hours and they had automatically terminated their employment.  They all claimed unfair dismissal.  There were 240 of them and the industrial tribunal held that they had repudiated their contracts of contract and they had not been dismissed.  This tribunal reversed that decision and held that they had all been dismissed. Waterhouse J. delivering the judgment of the tribunal cited with approval a judgment of  Slynn J. in Fisher v York Trade Leco Ltd [1979] IRLR 386 where he had said: 
“It seems to us that where what is being relied upon by an employer or an employee is not a resignation or a dismissal but conduct which is said to be a fundamental breach of the contract and where the parties said to have been in breach, has not indicated that it considers the contract to be at an end, then the accounts of a fundamental breach, if such it be does not itself determine the contract.  The contract is determined when the fundamental breach is accepted, it is the acceptance by the employee in the case of an alleged fundamental breach by the employer which constitutes the termination by the employee.”

8.	And of course the same point applies if it is the employee who is in fundamental breach;  it is the acceptance by the employer that amounts to the termination.  This tribunal declined to follow previous decisions of its own which might have had a contrary effect and Waterhouse J. concluded the judgment by pointing out that if a restrictive interpretation were to be applied to the word 'terminated' in the predecessor to the Employment Rights Act 1996 the result would be that a large category of decisions to dismiss by employers would be excluded from scrutiny by Industrial Tribunals and it is most unlikely that this was the intention of Parliament.  

9.	Mrs Joyce on behalf of the employers has valiantly attempted to argue that in this case there were unequivocal acts by the employee which amounted to a resignation by him, notwithstanding the analysis by this tribunal in Rasool v Hepworth Pipe Co Ltd. She initially attempted to argue that there must have been some words used by him for that inference to be drawn but conceded that there was no evidence that any such words had been used.

10.	 In our judgment the fact that on the tribunal’s analysis the employee refused to come to work at what they had held to be ‘suitable alternative employment’ or failed to indicate to the employer in response to the employer's request that he was willing to come to work, cannot be construed as resignation by him.  In accordance with the principles in Rasool v Hepworth Pipe Co Ltd,  the facts can only properly be construed as repudiatory conduct by the employee which  the employer  dealt with in the letter to which I have referred by accepting his conduct as terminating the contract.  On that analysis the termination of the employment was as a result of the employers' acceptance of his repudiatory conduct.  

11.	The result is that the appeal must be allowed and the finding of the tribunal must be replaced by a finding that the appellant was dismissed.  The case must be remitted to the tribunal for findings as to whether the dismissal was fair.  Subject to availability we think the case should be heard by the same tribunal.