Ogilvie Construction Ltd v Brown (Unfair Dismissal : Constructive dismissal) [2016] UKEAT 0003_16_1008
[14]This is a perversity appeal. To succeed the respondent must make out an overwhelming case that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached – Yeboah v Crofton ( 2002) IRLR 634 15. The starting point for discussion is the now unchallenged conclusion of the Tribunal that the respondent being aware of the claimant’s excessive hours of work, including his complaints about the issue, and taking no effective steps to manage his workload, amounted to a repudiatory breach of the contract of employment and that there had been a breach of the implied term of trust and confidence – paragraphs 38- 42. Those central issues were very much in dispute at the hearing and were decided in the claimant’s favour. Accordingly, he was entitled to accept the breach and terminate the contract by resignation which would amount to constructive unfair dismissal. 16. In argument before me the appeal was focused as a challenge to the Tribunal’s conclusion that the notice sent to the respondent was an unambiguous resignation and to a large extent that was how the issue was characterised by the Tribunal. What should not be lost sight of, however, is that the notice is only one aspect of a bigger question, namely whether or not there has been a resignation (or dismissal). The terms of section 95 of the Employment Rights Act 1996 govern the circumstances in which constructive unfair dismissal can arise. The provision states that those circumstances are that ;- “ (c) … the employee terminates the contract under which he is employed ( with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.” It having been established that the claimant in this case was entitled to terminate the contract by reason of the respondent’s conduct, the issue for the Tribunal came to be whether or not he had so terminated it. The question of whether or not there has been a resignation (or dismissal) must be considered in the light of all the surrounding circumstances – J & J Stern v Simpson [1983] IRLR 52. While the claimant would have been entitled to terminate the contract without notice, he had actually sent a notice (by email) to his employer which his employer had taken to be a notice of resignation of employment and had acted on it with that understanding. That notice was an important part of the surrounding circumstances. 17. Turning to the respondent’s first argument, namely that there was no rational basis for preferring the evidence of Mr Ralston to that of the claimant in relation to the telephone call they had after the notice was received, I note first that it is the judge’s notes that must prevail where there is a difference between what was noted at the time. Counsel for the respondent contended that on any view of the notes Mr Ralston had no clear recollection of what had been said. However an examination of the judge’s note of his evidence does not, in my view, support that contention. The Employment Judge records Mr Ralston as saying, in response to an assertion in cross examination that the claimant had said he would be happy to stay as General Foreman “ .. I don’t recollect the claimant saying that he was happy to stay with the General Foreman position. I recollect him saying he was happy to move on.” On the face of it, the witness was not saying he did not recall the specifics of the conversation, rather he was not accepting the assertion put and was confirming the thrust of the conversation as he recalled it, namely that the claimant was happy to move on, the context being that Mr Ralston had received what he understood to be a notice of resignation. The Tribunal did not make any general credibility and reliability findings in this case. However, whenever there was a dispute in relation to an issue of fact, each party’s position was stated and a conclusion reached as to what was being accepted. One example is in relation to whether the claimant had received a letter from the respondent at the beginning of August 2014 in relation to reverting to the position of General Manager. The Tribunal concluded on balance that the letter had not been sent to the claimant, consistent with Mr Brown’s position that he had not received it – paragraphs 21 and 22. In a case of this sort, where there are different recollections and positions, it is not necessary for a judge to find one position credible and the other not. It must be clear which position is being accepted and reasons must be given. On this issue it is clear from the judgment that the Employment Judge found Mr Ralston’s position on this issue of what was said during the telephone conversation to be more reliable because it was more consistent with the extraneous evidence, in particular the subsequent preparation by the respondent of a letter of acceptance of the claimant’s resignation – paragraph 30. The respondent’s argument on this point appeared to conflate the issue of the telephone conversation and what was said during it and the general issue of intention. The Tribunals’ finding in relation to preferring Mr Ralston’s evidence can be understood as relating specifically to what was said during the telephone conversation on 26 October ( erroneously dated 26 September in paragraph 29) and Mr Ralston’s understanding of what the notice was intended to convey. The Tribunal having decided that Mr Ralston’s recollection of the telephone call was more reliable, the issue of the claimant’s intention was then more relevant to the evidence of the notice and whether it amounted to an unambiguous resignation. I conclude that the decision to prefer Mr Ralston’s evidence on what was said during the telephone conversation of 26 October was one the Tribunal was entitled to reach on the evidence it had noted.18. The second argument for the respondent is that the Tribunal had not been entitled to conclude that “… there would have been an outcry from the claimant had the respondent purported to accept a resignation that had not been offered”. It is trite that the Tribunal cannot draw inferences other than from facts found from which inferences can properly be drawn. The question is whether there were sufficient primary facts found from which the Tribunal was entitled to draw the inference it did on this issue. In paragraph 30 of the judgment, having preferred Mr Ralston’s evidence on what was said during the telephone conversation on 26 October because the respondent sent a letter of acceptance of resignation the following day, the Tribunal finds that “ The claimant did not respond to that letter by saying that the respondent had misunderstood his position nor did Mr Ralston raise any issue of the respondent having treated the letter as a resignation when that was not what was intended.” So the absence of a protest from the claimant had a basis in the evidence. According to the respondent’s agent’s notes, Mr Raslton was asked specifically whether the claimant had ever said anything inconsistent with the email notice after it was sent. The Judge’s notes also record that in response to questions from him (the Employment Judge), the claimant confirmed that he registered with an agency on 28 October and then applied for a new job on 10 November. By the time of the grievance meeting in December he had secured new employment and had no interest in going back to the respondents. That evidence was also available to the Tribunal as part of the circumstances in relation to the central issue of whether the claimant had resigned (and was therefore constructively unfairly dismissed). The respondent now seeks to argue that neither party had the opportunity to address the Tribunal on this issue of the absence of a response to the letter accepting the resignation but there is no reason why the evidence of what occurred after the respondent had accepted the resignation could not have been the subject of submissions. This argument must be understood against the background of the respondent having taken the position at the hearing that the claimant had resigned by the notice he sent, the antithetical position to that now taken. The absence of actings inconsistent with resignation was accordingly not only consistent with the stance taken by the respondent at the hearing but appears to have been raised in evidence. I conclude that the tribunal had sufficient evidence before it to draw the inference that it did on this point.19. The third and final point for the respondent is that it was perverse for the Tribunal to state that the claimant’s email made no sense if he was intending to do anything other than resign. It must be acknowledged that the Tribunal does give this as a third reason for rejecting the claimant’s evidence of intention. However, again, that reasoning is simply part of a conclusion that the claimant resigned and more particularly that he had done so by sending an unambiguous notice of resignation. It is perhaps this argument that focuses most clearly the issue of the importance or otherwise of an employee’s intention in sending a notice of resignation. Where a notice of resignation is unambiguous the recipient is entitled to assume that the decision behind it was conscious and rational and accept its terms. The surrounding circumstances may be of little relevance unless the notice and the circumstances do not point in the same direction. Even where there is some ambiguity in expression in the notice, the evidence of the former employee as to his intention is not necessarily determinative. The real test is how the notice would have been understood by the reasonable recipient. These principles are discussed in Harvey , Vol I, D, paras 225-249, but, it would appear, were not articulated to the Employment Judge at the hearing nor were they referred to on appeal.20. What is clear is that the Employment Judge found that this was an unambiguous notice of resignation. The respondent now contends that, taken with the surrounding circumstances the notice could be read only as notice of the claimant terminating his position as Site Manager and reverting to General Manager. That contention ignores the circumstances consistent with the notice being one of termination of employment, namely the absence of a reaction to the respondent’s acceptance of it as such and the claimant’s actings to secure new employment immediately. More importantly, the respondent’s own witness took it to be a clear notice of resignation from employment, acted accordingly and maintained his position in evidence that he had never seen anyone give notice when finishing a particular job as opposed to from their employment and that he had taken it as a resignation from employment. The agent for the respondent appears to have challenged the claimant in evidence on this point putting to him that a “reasonable person” would take the notice as being one of resignation from employment, recorded both by the Judge and the respondent’s agents in the notes of evidence now produced. Leaving aside that the respondent has performed a complete volte face on this issue, the question for me is again whether the Tribunal was entitled to conclude that this was an unambiguous notice of resignation. The notice was before the judge and the significant parts of it, namely the heading “ 4 weeks notice” and the statement in it that the claimant would “ finish up in 4 weeks from this position”. I reject the contention that a conclusion that its terms were unambiguous was somehow perverse. However, the Tribunal went further and relied on the surrounding circumstances, stating “ Both Mr Ralston and Mr Main were for saying that they have seen many intimations of resignation. Resignation by e-mail is not unusual. Their construction of the email is both reasonable and in keeping with the words used and the surrounding circumstances” (para 45). It is this part of the judgement that convinces me that the Tribunal did not fall into any material error in approach. In accordance with the established principles in this area, having formed a view on the unambiguity of the notice, it proceeded to cross check that view against whether there was anything in the surrounding circumstances that militated against taking the notice at face value and found that there were not. The Tribunal also understood that the issue of the employer having taken it at face value had to be scrutinised and characterised as reasonable or unreasonable. While there is no discussion of the relationship between the claimant’s intention at the time and the unambiguity or otherwise of the notice, I have already pointed out that the principles about that do not appear to have been part of any argument to the Tribunal.21. In my view, it would have been sufficient for the Tribunal to conclude that the notice was unambiguous, cross check that against the respondent’s construction and the surrounding circumstances and conclude that the claimant’s evidence of intention was of far less relevance standing that he had found that such intention had not been communicated to Mr Ralston in the telephone call. This appeal, focusing as it has on the stated reasons for not accepting the claimant’s evidence of intention, has been presented as if the Tribunal’s conclusion on the claimant’s stated intention had been an end of the matter. On the contrary, the paragraph ( 44) that deals with the reasons for rejecting he claimant’s evidence on the point precedes the paragraph I have noted above as giving the Tribunal’s conclusion on the unambiguity of the notice and how that fitted with the surrounding circumstances. The question for the tribunal was whether the claimant had terminated his contract of employment after the respondent had acted in a manner that entitled him so to do. The answer to that question could only be in the affirmative, when the notice was considered against the evidence of what occurred thereafter. While it was a curiosity of the case that the party who had resigned stated he had not intended, at least initially, to resign completely from his employment, that stated intention was ultimately no more than an adminicle of evidence for the Tribunal to try to make sense of standing all of the evidence to the contrary. It appears that the claimant’s initial view was that he would have remained in the employment of the respondent if he could have reverted to his previous role of General Manager. He was clear that unless such an option was available his time with the respondent was at an end. His actings in taking up new employment and attending a grievance meeting only with a view to discussing compensation were consistent with his having resigned. It is more difficult to see how, on the accepted evidcne the Tribunal could have reached any conclusion other than the one it did. If the respondent had not resigned from his employment, how did he come to be working for another employer within weeks of giving notice to the respondent and on what basis did he register with an agency the day after the letter from the respondent accepting his resignation was sent (which according to the respondent’s chronology was the very day on which it was received by the claimant)? These questions would have been very difficult to answer other than by concluding that the claimant had, whatever his stated private intention, in fact resigned from his employment.22. In the somewhat unusual circumstances of this case and reading the judgement as a whole, I consider that the Tribunal was well entitled to reach the conclusion that it did. I reject the argument advanced for the respondent that the decision was perverse. I will dismiss the appeal.
Cited in 4 later judgments