McGuigan v Oddbins Ltd [1996] UKEAT 1333_95_1904

EAT
McGuigan v Oddbins Ltd
[1996] UKEAT 1333_95_1904 · 1996-04-19

JUDGE B HARGROVE QC :

In this case the Appellant was a part-time sales assistant with Oddbins. The point which arose on a preliminary hearing before the Industrial Tribunal was, what was the date of dismissal? Quite apart from the usual aspects of this, it was a point of some difficulty for two reasons. First of all, constructive dismissal was being relied upon and secondly, the date was relevant because, upon one view of the matter at least, if the dismissal occurred, as indeed the Industrial Tribunal found it did occur on the date when he wrote a particular letter, then in fact his application was out of time.The findings of the Industrial Tribunal on that point, which is the first point of law which it is said exists, occurs at paragraphs 4 and 5 of the extended reasons. Paragraph 5 refers to a final subparagraph in 4 and I will read that for sake of completeness."4(12) Four weeks later, Mr McGuigan wrote again to Mr Coyle, `It is now just over four weeks since I last wrote to you regarding my effective dismissal from our Canterbury branch'".Four weeks before that, what Mr Coyle had written was:
"... I do not now doubt that contractually this is the case [when it was told that he got in variable hours]. For the present, however, I have little alternative but to seek employment elsewhere."
The commentary upon that by the Tribunal was this:
"5 On the basis of that correspondence, the Tribunal is unanimously of the view that the conversation between Mr Pearce and Mr McGuigan on 18 or 19 March, amounted to a situation which Mr McGuigan was entitled to treat as being constructive dismissal. But an act amounting to constructive dismissal requires acceptance by the person dismissed. We find that Mr McGuigan's letter of 30 March was such an acceptance. ..."
Our attention has been drawn to that letter and the relevant passage is, of course, the first comment in the fourth paragraph of:
"... no prior warning of this effective dismissal ..."
. The further passage occurs in this way:
"... For the present, however, I have little alternative but to seek employment elsewhere, as despite my protests, and Derek Morrison's concern, it still appears that I am to lose a job that I am particularly good at, that I enjoy, and which has provided me with my major source of income. I hope there is still something that you might be able to do to rectify this situation."
No further letters written up until 15 June. In each of those letters (but not I think in the one of 15 June) the Appellant signs himself "Senior Branch Assistant, Canterbury Branch (210)". The criticism which is made is, if one looked at that letter even in isolation but in particularly the context of the entire collection of letters up to 15 June, one could only come to the conclusion that what was happening here was that the Appellant was seeking to say that his contract was still in being, and that any other interpretation must be wrong. Miss Carpenter has urged her case with great lucidity and considerable care. I regret to say however, that she has failed to convince any of us that this decision is anything other than a decision of fact.We then turn to the next question that the Tribunal found that the claim was out of time, out of time by some six days. Here again, Miss Carpenter makes a number of criticisms of the decision. She says that there were a series of factors which should have convinced the Tribunal that it was not reasonably practicable to enter the application in time. First, she says, right the way through down to the interlocutory hearing, it was the employer's case that they had never sacked him at all.Secondly, that this was, on any view of the matter, a difficult contract. Problems had arisen as to whether it was an on-going contract for a fixed number of hours (amongst others) and what ought to have happened here, and where there was an error was that the mental state of the individual should have been taken into account, particularly the fact that there was a complicated dismissal situation and the Tribunal should also have taken account of the further letters which had taken place and those further letters were seeking to obtain a continuation of the contract and therefore, they were matters which were taken into account.Again, it seems to us that the decision on this question is essentially a point of fact and not one of law, and accordingly this appeal discloses no reasonably arguable point of law and must be dismissed.