MRS J MATHER v CITY HOSPITAL SUNDERLAND NHS TRUST [1999] UKEAT 881_99_2611

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 881_99_2611Case No Appeal No. EAT/881/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J MATHERAPPELLANTCITY HOSPITAL SUNDERLAND NHS TRUSTRESPONDENT
Before
His Honour Judge A WilkieDate 26 November 1999
[1]APPEARANCES For the Appellant MR K McNERNEY (Legal Officer) Royal College of Nursing Raven House 81 Clarendon Road Leeds LS2 9PJ JUDGE WILKIE QC : This is an appeal brought by Mrs Mather against the unanimous decision of the Employment Tribunal sitting at Newcastle-upon-Tyne that she was not dismissed by the respondents, City Hospital Sunderland NHS Trust, and thereby dismissing her complaint of unfair dismissal. The hearing below took place on 13th January, 22nd and 26th March 1999. The decision was dated 7th June 1999. The Employment Tribunal set out in paragraphs 1 through to 11 a comprehensive series of findings of fact and no issue is taken by the appellant in respect of those findings. In particular the tribunal found that there were a series of threats by the employer to break her contract in the event that she sought to return to work for them after periods of secondment to the Cabinet Office. The threats made were to place conditions upon her return to work which were unwarranted by the terms of her contract of employment. Those threats, the tribunal found, continued up to and including a letter of 4th June 1998. The tribunal found that about that time Mrs Mather initiated a grievance procedure. The tribunal also found that the threat to break her contract was withdrawn by the employer by letter to her of 16th June 1998. At that time the contract of employment subsisted. The appellant did not resign her employment until 6th July 1998.[2]Paragraph 12 of the decision constitutes the tribunal setting out the law in respect of this area, namely the effect of an anticipatory breach of contract, the opportunity that an employer has of withdrawing the threat and the effect of such a withdrawal.

(c) and (d) they say this:

"(c) In circumstances of a threatened breach, if that threat is withdrawn and the withdrawal is communicated to the employee before the employee resigns, then the resignation does not result from the breach. (b) If after the threat has been made and subsequently withdrawn, an employee continues to act as if the contract subsists, and further goes on to exercise rights under the contract, then the employee cannot be said to have accepted the employer's repudiation of the contract."
Applying those principles to what appeared to have been the undisputed facts, the tribunal concluded in paragraph 13 that Mrs Mather resigned on 6 July 1998, by which time the threats had been withdrawn. Therefore that resignation did not constitute a constructive dismissal.[3]The tribunal said that she had "affirmed the contract" by invoking the grievance procedure and, by taking a holiday. We do not think that constitutes any error of law. The tribunal in that paragraph is really saying is that the contract continued. It is not saying that by invoking the grievance procedure she was in any way accepting the breach of contract and thereby disentitling herself from resigning. In response to that threat of breach of contract. If that is what the tribunal had been saying, then that would have been erroneous. In the facts of this case, it did not arise.[4]In truth, this tribunal was dealing with a clear issue of law and applying undisputed facts to them. There had been an anticipatory breach of contract. The threat to breach the contract had been withdrawn whilst the contract subsisted and before the contract was brought to an end by her resignation. The resignation took place after the threat of breach had been withdrawn and communicated to her. In those circumstances, the law is perfectly clear and the Employment Tribunal were obliged to conclude that she was not constructively dismissed and therefore her application for unfair dismissal had to fail.[5]In our judgment it is not seriously arguable that the tribunal erred in law or erred in the application of the facts to the law in anyway which could have affected their decision. We therefore dismiss this appeal at this stage without requiring it to go to a full hearing.