Hardes v. Henry Cook Lumsden Plc [1999] UKEAT 145_99_1205

EAT
Hardes v. Henry Cook Lumsden Plc
[1999] UKEAT 145_99_1205 · 1999-05-12

JUDGE PETER CLARK:

This is an appeal by Ms Hardes, the Applicant before an Employment Tribunal sitting at Stratford and chaired by Mr Jeremy McMullen QC on 5th and 6th October 1998, against that Tribunal's decision by a majority, Mrs O C Cushing dissenting to dismiss her complaint of unfair dismissal. The Tribunal also dismissed unanimously a claim brought by the Appellant under the Equal Pay Act. There is no appeal against that latter finding.The Tribunal divided, as can be seen from their extended reasons as corrected by the Chairman, over the issue as to whether the Appellant orally tendered her resignation from her employment with the Respondent at a meeting with her Principal, Mr Herbert, held on 16th November 1997. The difference in recollection between the Appellant and Mr Herbert and the Tribunal members' findings on that issue, are set out at para 18 of their reasons thus:
"18. From the outset of the meeting the Applicant was frosty and then she was clearly angered by the refusal of the Respondent to offer her an exceptional further pay increase. On the Applicant's case, she stood up and with her back to Mr Herbert said

"I will resign and pursue a claim for constructive dismissal."

The exchange was recorded by Mr Herbert in a note he made at 5.30 PM shortly after the end of that meeting (see page 30) as to which three entries are accepted by the Applicant as being correct. The note reads:"OK, I am resigning and I expect to be suing you for constructive dismissal".Mrs Cushing accepts the Applicant's account. The majority accept Mr Herbert's account. In other words, the majority find that the Applicant resigned there and then whereas the minority find she was expressing a view as to what she would do in the future."The question of which version to believe was purely a question of facts to the Employment Tribunal, with which we cannot interfere, as Mr Stuart, who appears on behalf of the Appellant today, accepts. However, his submission is that the Tribunal then fell into error by overlooking the material term of the Appellant's Contract of Employment, dealing with the giving of notice. That term reads, so far as is material,
"Staff paid monthly are required to give one month's notice of termination. In all cases you are required to confirm notice of termination in writing."
In these circumstances submits Mr Stuart, the Tribunal fell into error by failing to consider that term which on its proper construction, means as a matter of law that no effective notice of resignation can be given if not confirmed in writing. It is correct to say that this point was not considered by the Tribunal as Mr Stuart has demonstrated by particular reference to para 22 of their reasons.On this sole ground, he invites us to permit this appeal to proceed to a full hearing at this preliminary hearing stage. We decline to do so for two reasons. First, it is quite clear that the point was not taken by the Appellant, then representing herself below. We can find no exceptional circumstances which would allow us to consider it for the first time on appeal, (see Jones -v- Burdette Coutts School [1998] IRLR 521 ) and the cases there considered. In particular, the Appellant's lack of experience as an advocate, is no ground for allowing the new point to be taken for the first time in this appeal (see Kurnchyk -v- Derby City Council [1978] ICR 1116 .Secondly, even if it were open to the Appellant to take the point now we would have rejected it. The contract envisages oral notice of termination being given by the employee. The requirement to confirm that resignation in writing is plainly designed to ensure certainty should a dispute arise in the future, as happened in this case. However, we would have held that failure to give written confirmation does not nullify the oral notice of termination which the majority found was given by the Appellant on 19th November 1997. In these circumstances, no other question of law having been raised before us, the appeal must be dismissed.