Port Dredging Ltd v Sumner [1994] UKEAT 671_93_2604

EAT

Port Dredging Ltd v Sumner

[1994] UKEAT 671_93_2604 · 1994-04-26

JUDGE PEPPITT QC:

This is the preliminary hearing of an appeal from a decision of the Liverpool Industrial Tribunal made on the 27 April 1993. The Tribunal held unanimously that the Applicant had been unfairly constructively dismissed and made an award of compensation. The point is a very short one.

On the 4 November 1992 the Respondent, who had worked for the Appellants at least since July 1973, received a letter telling him that he would be laid off without pay for six weeks. The Tribunal found that there was no contractual entitlement permitting the Appellants to lay off members of their workforce in this manner. Accordingly, the Tribunal found that act by the employers constituted a breach of the contract of employment.

The Tribunal also found, and in our judgement was inconvertibly right in so doing, that that breach constituted a repudiatory breach of the contract of employment, entitling the employee, if he accepted it, to allege that he had been constructively dismissed. What happened was that on the 13 November the Respondent told his line manager that he proposed to resign and accept other employment because he had no future with the Respondent. Mr Bates, the line manager, merely replied that he had no work at all and the Applicant could collect cards the next day. Between the 4 November and the 13 November Mr Bates had offered no assurance to the Respondent as to the likelihood or even the possibility of an early resumption of work, and had confirmed that the lay-off would either be for a period of six weeks or into the New Year.

The only point raised by Mr Hall, on behalf of the Appellants, is that he submits the Tribunal did not positively identify the Appellants' failure to provide work as the reason for the Respondent's resignation and thus his constructive dismissal. He invites us to find that the Tribunal's decision was without basis, because he says the real reason for the resignation by the Respondent was that he found another better paid job. We find ourselves wholly unable to accept that submission. In paragraph 11 of its decision the Tribunal expressed the view that the Respondent was a truthful and reliable witness on all matters of fact. His in fact was the only evidence before the Tribunal, because the Appellants elected not to appear and merely made their case by way of a written submission.

The Tribunal found firstly, as we have indicated, that on the 13 November the Respondent told Mr Bates that he proposed to resign and to accept other employment because he had no future with the Appellants. We pause here merely to record that it is implicit in that finding that the Respondent believed he had no future with the Respondent because he had had no work provided for him for the past week, and was going to have no work provided for him at least for the next five.

Then in sub-paragraph (viii) of paragraph 12 the Tribunal found:

"The applicant resigned his employment on 13 November in the genuine belief that the possibility of a resumption of work was entirely uncertain and indefinite; and the respondent's Directors said and did nothing to disabuse him of this belief."

and in paragraph 13, sub-paragraph (vi) the Tribunal put the legal gloss on the facts which they found:

"By reason of the Respondents said fundamental beach of contract, the Applicant was entitled to consider himself discharged of his obligations to the Respondent and constructively dismissed on the 13 November 1992."

In our judgement the Tribunal found clearly that the reason why the Respondent looked for other work and resigned his employment with the Appellants, was because the Appellants were providing him with no work. Had work been provided, there would have been no resignation. That we consider to be spelled out with sufficient clarity in the course of the decision. The causative element between a repudiatory breach by employers and the subsequent resignation of a party asserting constructive dismissal is a question of fact for the Tribunal. There was in our judgement abundant evidence for the finding which the Tribunal reached and accordingly this appeal must be dismissed.