MRS S PHOTIOU v SALFORDIAN TRUST COMPANY LTD [2000] UKEAT 282_00_2706
[1]APPEARANCES For the Appellant MR B CULSHAW (Representative) Sefton Employment Rights Unit 11 Duke Street Formby Liverpool L37 4AN JUDGE CLARK This is an appeal by the Applicant before the Liverpool Employment Tribunal, Mrs Photiou, against that Employment Tribunal's decision promulgated on 18 January 2000, determining on a preliminary issue that the Appellant had not been dismissed by the Respondent for the purposes of her bringing a complaint of unfair dismissal.[2]The Appellant was employed by the Respondent at their Southport hotel catering for the elderly and disabled. Her employment commenced on 27 March 1998. She started as a waitress and rose to the position of Duty Manager. She was a highly regarded employee.[3]On 20 June 1999 the Appellant gave Mr Elgin, the then Manager of the hotel written notice of resignation expressed to take effect on 20 July 1999.[4]On 6 July, Mr Elgin had also given in his notice and Mr Lancaster, the Chairman of the Respondent spoke to the Appellant saying that he did not want her to leave but, the Employment Tribunal find as a fact, (paragraph 4(h) of their reasons), she was adamant. He said that he would have to advertise her job.[5]It seems, although not recorded by the Employment Tribunal in their reasons, that on 9 July the Appellant faxed the Respondent purporting to withdraw her resignation. However, neither Mr Elgin nor Mr Lancaster accepted the withdrawal of resignation; on the contrary, found the Employment Tribunal, neither assured her that her application for a job was a formality or that she was sure to be appointed.[6]The Employment Tribunal found that the Respondent was not in repudiatory breach of contract entitling the Appellant to resign and claim constructive dismissal. The factors, which they took into account, in reaching that conclusion are set out in paragraph 5(b) and (c) of their reasons. We need not repeat those factors in this judgment.[7]In this appeal Mr Culshaw argues that the Employment Tribunal erred in its legal analysis of the facts. He submits that what happened was that after the Appellant handed in her resignation the Respondent offered her the opportunity to retract that resignation, which offer she accepted by her fax on of the 9 July. When the Respondent thereafter refused to employ her that was an actual dismissal by the Respondent. We reject that contention, first on the basis of the factual finding by the Employment Tribunal that when Mr Lancaster spoke to the Appellant on 6 July and told her that he did not want her to leave, she was at that stage, adamant that she would do so.[8]Accordingly on the facts the suggested offer by the Respondent to the Appellant to withdraw her resignation was promptly rejected on that day by the Appellant.[9]It seems to us that the correct analysis in law is as follows: The Appellant gave contractual notice of resignation. Proper notice, once given, cannot be unilaterally withdrawn. See Harris & Russell Ltd –v-v Slingsby (1973) ICR 454. On the Employment Tribunal's findings of fact the parties never agreed to the Appellant withdrawing her notice. Thus, the contract was terminated by the employee and not by the Respondent.[10]Was the Appellant's resignation such as to amount to constructive dismissal? On the Employment Tribunals findings of fact, it did not. There is no challenge before us nor could there by on an appeal limited to a point of law to those factual findings. Accordingly, it seems to us the Employment Tribunal were entitled to conclude that the Appellant had not made out her case on either, actual or constructive dismissal and they were in the circumstances obliged to dismiss her complaint of unfair dismissal.[11]Accordingly we shall dismiss this appeal at this preliminary hearing stage.