MR T ROWORTH v WELBECK STEEL SERVICE CENTRES LTD [2000] UKEAT 1189_99_2102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1189_99_2102Case No Appeal No EAT/1189/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR T ROWORTHAPPELLANTWELBECK STEEL SERVICE CENTRES LTDRESPONDENT
Before
His Honour Judge CollinsDate 21 February 2000
[1]APPEARANCES For the Appellant MS S ROBERTS (of Counsel) Messrs H S Kang & Co Solicitors 24A Longbridge Road Barking Essex For the Respondent JUDGE COLLINS : This an appeal against the decision of an employment tribunal sitting at Stratford, the extended reasons having been promulgated on 17 th August 1999. By their decision, the tribunal dismissed the appellant's complaint of unfair dismissal, but awarded outstanding sick pay of £115.40. In paragraph 6 of the notice of appeal there is a critical reference to the tribunal's reasons in relation to the contractual claim in respect of other payments and unlawful deductions from wages. That reference is not enlarged in the notice of appeal or in the skeleton argument and after taking instructions Mrs. Roberts acting on behalf of the appellant elected not to proceed with those criticisms.[2]The notice of appeal dated 23 September 1999 takes the point that on the assumption that the respondents were in repudiatory breach of contract in mid December 1998, the tribunal were wrong in holding that the appellant had waived the breach and affirmed the contract by not resigning until March 8 th. There are other grounds of appeal which are set out but in our judgment they are misconceived in relation to the situation where the appellant claims to have left in response to the respondents' breach of contract.[3]The facts of the case, so far as material to this preliminary hearing, where we have to decide whether there is a reasonably arguable point of law, can be stated shortly. In March 1999, the appellant was 34 years old. He had been a slitting line operator from March 1994 and between 1996 and 1998 had a series of illnesses and operations of an orthopaedic nature, which meant that from 11 th May 1998 he was continuously off work and never returned. By October 1998, his medical adviser reported that he was able to return to work for light duties, but the tribunal held that the respondents refused to allow him to return.[4]Mrs. Roberts has made it clear today that at the tribunal, the appellant alleged that light duties would have been available for him but it was the evidence of the respondents that there was no suitable light work available. Mrs. Roberts concedes that the appellant was not able to place contradictory evidence before the tribunal and it does not seem to us that we are able to look behind the facts on the basis of which the tribunal appears to have proceeded, namely that the respondents refused to consider light duties on the basis that none were available.[5]In November 1998 there were further discussions and they culminated in a discussion in December. Basically, the position was that the appellant was in considerable financial difficulty and no longer in receipt of sickness pay from the company or statutory sickness pay. He needed to sort out his financial position for his wife and family. The respondents were saying that there was no work for him and that the choice was his; either wait until he got better and returned to full time duties or resign and they would pay him six weeks pay, but as the tribunal held they refused to put that in writing until he had resigned first.[6]The appellant was taking legal advice during this period and eventually on 8 th March 1999 he submitted his resignation. We have been told by Mrs. Roberts that the reason for the delay was that the appellant was anxious to return to work if he could and was not willing to resign unless he was brought into the position where he had no alternative for economic reasons.[7]The first question which seems important is not specifically flagged up in the notice of appeal although it is mentioned by implication. The tribunal took the view in paragraph 12 of their reasons that the applicant had reasons for losing confidence in the respondent:
"…which had taken no definite action to deal with the Applicant's problems since the Applicant first asked to return to work (on light duties) in about October 1998. Despite the meetings with the Applicant, the Respondent had put forward no suggestions save that the Applicant should wait until he was fit to return on his usual heavy duties, or that he might resign (and receive some money from the Respondent). Had the Applicant resigned at that point, he might well have succeeded in showing a fundamental breach of contract by the Respondent."
[8]So that the tribunal appear to have decided that there was probably a repudiatory breach by the employer in October. It might be that if this appeal proceeds, that the respondents would wish to challenge that conclusion by way of cross appeal. All we have to consider today is whether there is a reasonably arguable point of law on behalf of the appellant. It seems to us that there is some confusion in the tribunal's confinement of the breach to October 1998. That concern is borne out by the subsequent reference (see paragraph 12) to the meetings and discussions in October, November and December 1998. It is reasonably arguable that the repudiatory conduct either continued until December 1998 or that new repudiatory conduct occurred in December 1998.[9]In our judgment the tribunal's conclusion that the connection between the meetings and discussion in October, November and December 1998 and the applicant's resignation of March 1999 was to tenuous to support his complaint of constructive dismissal may not be fully borne out by the evidence. The authorities establish quite clearly that the mere passage of time in an employment situation is not conclusive as to whether or not an employee waives a breach of contract or affirms the existence of the contract.[10]Plainly delay is a material factor, but what is more important in an employment context is the reasons for the delay. The tribunal should be slow to hold that the mere passage of time amounts to a waiver of the breach if the explanation by the employee shows that he had a good reason for not immediately electing to treat a breach as bringing the contract to an end. We think that this question is one that is reasonably arguable. We allow the appeal to go forward to a full hearing limited to two grounds: First: What was the date if any when the respondents were guilty of repudiatory conduct? Second : Was the tribunal right in holding that the delay in resigning until March 1999 was an affirmation of the contract by the defendant?