MR D HEAVEN v WHITBREAD GROUP PLC [2010] UKEAT 0084_10_0804

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0084_10_0804Case No Appeal No. UKEAT/0084/10Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D HEAVENAPPELLANTWHITBREAD GROUP PLCRESPONDENT
Before
His Honour Judge PugsleyDate 8 April 2010
[1]APPEARANCES For the Appellant MISS HOLLY STOUT (of Counsel) Instructed by: Bar Pro Bono Unit 289-293 High Holborn London WC1V 7HZ For the Respondent MR STEVE PEACOCK (Solicitor) Messrs Weightmans LLP Solicitors First Floor, Peat House 1 Waterloo Way Leicester LE1 6LP SUMMARY JURISDICTIONAL POINTS – Claim in time and effective date of termination In this case on the 29 August 2008 the Appellant wrote what can only be described as a conditional resignation letter. His employer in reply pointed out that they could not action a conditional resignation and asked the Claimant to indicate whether he was or was not resigning. The Appellant emailed on 3 September making it clear he was resigning and saying his resignation was effective from the 29 August 2008. Fitzgerald v University of Kent [2004] EWCA Civ 143 makes it clear that the effective date of termination is a statutory construct. It depends on what passed between the parties and not what the parties wish or agree. As the resignation was on the 3 September 2008 the case was commenced within time. HIS HONOUR JUDGE PUGSLEY This is a case which turns on the issue of whether the Tribunal has jurisdiction to hear the case that Mr Heaven has brought against the Whitbread Group plc. On 17 February 2009, Employment Judge Fletcher, sitting alone, decided that the claim failed for lack of jurisdiction, and is dismissed. He had before him, at that stage, appearing for the Claimant, Mrs Wendy Heaven, who - although having a legal qualification - appeared it is said as a lay representative, and a solicitor, a Ms Kim Abbott, a solicitor with Messrs Weightman. I make absolutely no criticism at all, and indeed it is to be noted, nor did the Employment Judge who was grateful for the helpful submissions from Mrs Heaven, to say that I perhaps have received rather greater help than perhaps the learned Judge may have had.[2]The issue is, really, a fairly straightforward one to define. Section 111 of the Employment Rights Act states that a Tribunal will not have jurisdiction to hear an unfair dismissal claim, unless it is presented to the Tribunal within a period of three months, beginning with the effective date of the termination of the Claimant's employment, unless the Tribunal is satisfied it was not reasonably practical for the claim to be brought within the three months, and it was brought within a reasonable time thereafter. That issue is dependant on what was the effective date of termination of the Claimant's employment, as defined by Section 97 in the Employment Rights Act 1996 . On the ET1, it was given as 29 September 2008, which, by common consent, it was not. It was either 3 September 2008 - which is the argument advanced by Mrs Heaven - or was 29 August 2008 - which was the clear position adopted from the outset by the Respondents.[3]The Tribunal states, as follows briefly, the facts relating to that issue are these: following his meeting with Mr Hawes on 28 August 2009, the Claimant wrote a letter to Mr Hawes on 29 August 2009. The letter was headed, 'Conditional Resignation Letter', and in it, the Claimant tendered his resignation, conditional on receiving an assurance that he would be paid a month's salary in lieu of notice, and be given what was described as a glowing reference. That letter, which is to be found at page 27, cannot be construed as in any other way as conditional. It was headed that, and while it says, "I tender my resignation", it goes on to say, "This is dependent on two factors", and it is recorded on the second page of the letter:
"As you can imagine, I feel very bitter about being forced to resign from a job that I very much enjoyed until last March. As I am sure you also understand, I need to protect my future, if only slightly, with one month's money and a glowing reference for future use."
[4]On 31 August 2009, a letter was written back by Mr Hawes, and he says this:
"If you resign, you can have a month in lieu of notice. We wouldn't expect you to work your notice." and he then gives an explanation of the company's policy concerning references, but he said this, "
I'm totally confused about that your letter be treated as a conditional resignation", and he said earlier in the letter:
"I'm still willing to facilitate your return to work and give you as much assurance I possibly could do that you will not receive any poor treatment from anyone when you come back to work." and what, effectively, he is saying is: "
I cannot accept your statement…… You can stay on or you can go. I have not yet actioned your resignation but I did hear you didn't attend work on Friday the 29th. I would like to hear from you in writing to clarify whether a letter is indeed your firm resignation to be effective from 29 August, or whatever else your intents are. I cannot action a conditional resignation."[5]And then we have an email, sent by the Claimant in which he had, "… no alternative but to resign my position as Assistant Manager at Yeadon Stoops. I can confirm my resignation is effective from 29 August." and then that is acknowledged with an email on 4 September, "I accept it with regret, actioned according to your wishes".[6]Now, the difficulty in this case is that with great respect to the Tribunal, and as I say, the Tribunal Judge may not have had the benefit of expertise that I have had, the Tribunal decision is fundamentally flawed, because - if I may say so - the Tribunal just has not had regard to the fundamental principles of Fitzgerald v University of Kent at Canterbury [2004] EWCA Civ 143.[7]Mr Peacock, who appears for the Respondents, has - I think it would be fair to say - effectively conceded that he cannot seek to uphold the decision. I see he is nodding. The fundamental flaw is this: the effective date of termination of employment is a statutory construct. It depends on what has happened between the parties and not on what they may agree to treat as having happened. The finding of the Tribunal - and any other finding, if I may say so with great respect, would have been wholly perverse - is that that letter of 29 August 2009 was a letter which was not an unequivocal letter of resignation, because it was expressed to be conditional. The fallacy of the Tribunal is to think that when the Claimant provided clarity on 3 September, then the Tribunal was bound to find that the letter of 29 August 2009 was his resignation and he wanted it to be effective from that date, 29 August. That is not something that the Tribunal could have regard to. It was not concerned with the wishes of either the Claimant or the Respondents.[8]The true analysis that has been put in the skeleton argument and the oral argument before me is this: a contract of employment - and no authority need be cited for this proposition - cannot be brought to an end by an equivocal and conditional letter. You either resign or you negotiate the terms on which you will resign, but there is a fundamental distinction between those two propositions, and so the letter of conditional resignation did not bring the contract to an end. What brought the contract to an end was the Claimant's email, saying that he intended to resign and did resign. That email did not take place until 3 September 2009. He provided clarity. What Mr Heaven was unable to do was to backdate it by his assertion, "I confirm my resignation is effective from 29 August 2009". It just is not a case where the Tribunal could distinguish Fitzgerald .[9]The date on which the resignation was sent was the email of 3 September 2009, and for the reasons set out in Lord Justice Sedley's Judgment it could not be backdated, either by Mr Heaven, nor by any agreement. Therefore, the consequence of that is that the application was in time, and there is jurisdiction to hear the case, and I therefore propose that the appeal is allowed, and I make the finding which Mr Peacock is far too professional to seek to prevent me from doing; that there is jurisdiction to hear the case, as it was brought within time.