MR D GUNN v MR R THACKER - BUILDER [2000] UKEAT 879_00_0611
[1]APPEARANCES For the Appellant MR C BLAKE (Representative) Messrs Glynnes Solicitors Harvest house Low Common Bunwell Norwich NR16 1SY JUDGE REID QC : This is a preliminary ex parte hearing on an appeal by Mr Gunn against the decision of an Employment Tribunal sitting at Norwich on 19th May 2000 by which they determined, on a preliminary application, that Mr Gunn was not dismissed but that he resigned. The facts briefly are these: Mr Gunn had worked as a bricklayer for some years for the respondent, Mr Thacker. There is a separate issue as to whether his status was that of being self-employed or being employed under a contract of service and that matter is as yet unresolved. But on 23rd October 1999 Mr Gunn was telephoned by Mr Thacker who told him that he was thinking of retiring and he would not have work for him when the current work ran out. There were some jobs ongoing, but it was apparent to a man of Mr Gunn's experience that the work would run out towards the middle of November and he therefore took steps to arrange alternative employment. On 13th November he got alternative employment, starting on the following Monday week. On 15th, which was the intervening Monday, he saw Mr Thacker and told him he had got another job because he estimated that work would finish on Wednesday evening. Work did indeed finish on Wednesday evening. Mr Thacker did nothing to disabuse him of the notion that he would be finishing then. Indeed, Mr Gunn was not replaced.[2]The tribunal took the view in the light of the case Morton Sundour Fabrics Ltd v Shaw [1966] 1 KIR 1 QBD , that there was merely an advanced warning of redundancy and the call did not amount to a dismissal, because the indication as to when Mr Gunn's work would cease did not give either a date certain or an ascertainable date. It therefore was no more than a warning, and Mr Gunn's subsequent departure was a resignation.[3]We are satisfied that there is an issue that ought to be the subject of a full appeal in this case. Morton Sundour itself is a case now of some age (it was decided in November 1966) and it seems to us that there is a real point of law to be argued as to the effect of an indication that a job will come to an end at a future date in circumstances where the employer and employee know when about that is likely to be, even though they do not know for certainty the precise date when it will be.[4]It seems to us that it is arguable that the tribunal erred in law in reaching the conclusion that they did and we therefore direct that the matter should go to a full hearing. We think the appropriate category is Category C and we propose to give a time estimate of ½ a day. The only other direction that is necessary is the standard one for the lodging and exchanging of skeleton arguments not less than 14 days before the date which will in due course be fixed for hearing.