Kayode Sunday Toyinbo v Clydesdale Bank Plc [1998] UKEAT 999_98_0111

EAT
Kayode Sunday Toyinbo v Clydesdale Bank Plc
[1998] UKEAT 999_98_0111 · 1998-11-01
MR JUSTICE MORISON (PRESIDENT) : The purpose of this preliminary hearing was to determine whether there is an arguable point of law in Mr Toyinbo's Notice of Appeal against the unanimous decision of an Employment Tribunal held at London (South) that he had not been unfairly dismissed by his employers, Clydesdale Bank Plc.The hearing before the Employment Tribunal went from 11th June to 14th June 1997, from 5th to 7th November 1997 and 25th and 26th March 1998. The decision which runs to 16 typed-script pages was sent to the parties on 30th June 1998.The events all relate to the way in which the applicant's employment with the Bank, which started in June 1987, came to an end in March 1996. The applicant's claim was one of constructive dismissal. He relied upon a number of specific matters in support of his contention that his employment contract had been broken by his employers in such a fundamental way as to entitle him to accept their repudiation.Following this very lengthy hearing the Employment Tribunal concluded that the employers had broken the contract of employment in a fundamental way. Their findings are set out at paragraph 77 of their decision and amount to a series of failures by the employers which amounted to the fundamental breach of the implied term of trust and confidence.The tribunal then directed themselves as to the question whether the applicant had accepted the employer's repudiation or whether he had by his actions affirmed the contract of employment. They said this in paragraphs 79 and 80:
"79. We have had regard to Western Excavating and W E Cox Toner, and we remind ourselves that each case must turn on its own facts. In the present case the Applicant delayed his resignation for one year before allegedly resigning in response to the employer's fundamental breach. We have had regard to the Applicant's submission that the G.P.'s report provides a reason or excuse for the Applicant's delay.
80. The Tribunal rejects the Applicant's submission that he did not delay too long before he resigned. We do not accept that throughout the entire period of the Applicant's absence from work that he was incapable of resigning and claiming constructive dismissal. We find that he delayed too long and by his delay he affirmed the contract of employment and is not entitled to claim constructive dismissal. In arriving at this decision we bear in mind that he took no action which put the Respondent on notice that he did not intend to return to work; and that he pursued his grievance, submitted his sick certificates in order to receive sick pay, responded promptly and cogently to correspondence, sought legal advice within two weeks of his period of sick leave and that he was not suffering from any mental illness that might prevent him from making a positive decision."The Notice of Appeal challenges two aspects in particular of the tribunal's decision. In the first place it is said that the tribunal's finding in relation to the way the Bank dealt with the grievance in paragraph 76 of their decision was insupportable in the light of the clear evidence which showed that his grievance had not been addressed properly. Accordingly it is said that that finding was perverse.When asked why that was a relevant pertinent point of law to be raised in an appeal where a tribunal had found a fundamental breach, Mr Cato, on behalf of the appellant, to whom we are grateful, indicated that it was the final straw and if the tribunal were wrong to have concluded that there was no fundamental breach in relation to the grievance, then it affected the appreciation as to whether there had been an acceptance by conduct in continuing on in employment. The rejection of the grievance was on 16th June 1995, by which date the appellant had been off sick, supported by medical evidence, for a period of just over a month. The resignation occurred on 29th February 1996.It seems to us in those circumstances that the point that is being made is not pertinent to the real issue in this case, which is whether the tribunal were entitled to conclude that by not resigning more promptly he had lost the right to claim that he was leaving on acceptance of a repudiatory breach of contract. As to that, it seems to us, that even if the failure to deal with this grievance was a fundamental breach of contract, it is clear, as we think, that the applicant has delayed for too long.In relation to that issue, Mr Cato submits that the Employment Tribunal ought to have accepted the report of the General Practitioner which indicated that the applicant was not fit enough to deal with his affairs as a result of his medical condition. Accordingly, as that medical evidence was the only medical evidence before them, the tribunal were bound to conclude that the applicant could not be criticised for not resigning before.We disagree with that submission. It seems to us not to be reasonably sustainable. An EmploymentTribunal was not bound to accept the opinion of a doctor on the very question that they had to ask themselves. It is clear that after 16th June 1995, on five occasions, the applicant submitted promptly a medical certificate for two months at a time, that show that he was capable of providing material to his employers to cause them to make him a payment to which he would not have been entitled had he accepted the repudiatory breach by his employer. The tribunal were entitled having heard the evidence, as it seems to us, to conclude that the applicant was indeed well enough to have accepted the repudiatory breach if he were minded to do so and to have accepted it in circumstances in which that opportunity was still open to him.Accordingly, we are unanimously of the view that it was a pure question of fact in relation to whether the applicant had accepted the repudiation in good time or not. That was a finding open to the EmploymentTribunal and is not one which we can interfere, and accordingly there being no arguable point of law we must dismiss this appeal.We would like, in conclusion, to thank Mr Cato for his clear submissions and for the way he presented this appeal. He has been of assistance to us.