Appeal No. EAT/785/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 5 December 1994

	Before

	HIS HONOUR JUDGE H J BYRT QC

	MR R JACKSON

	MRS M E SUNDERLAND JP

MR C WATKIN	APPELLANT

MRS L HOLMES T/A HOLMES TRANSPORT	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR CROWLEY
	(OF COUNSEL)
Fraser Brown,
84 Friar Lane,
Nottingham NG1 6ED

For the Respondents	MISS BERNARD
	(OF COUNSEL)
McKinnels,
188 High Street,
Lincoln  LN5 7RE.

	JUDGE BYRT QC:  This is an Appeal from the decision of an Industrial Tribunal sitting at Lincoln on 29 July 1993.  The Tribunal's unanimous decision was that the Appellant's claim for unfair dismissal had failed.  The facts of the case as found by the Tribunal were as follows:

Since about 1987 the Appellant was employed by the Respondent, Mrs Holmes, as a driver of a lorry making deliveries to all parts of the country. On 4 December 1992, a Friday afternoon, he reported back to his depot and saw the Respondent who told him to go and see her husband, Mr Holmes, to find out what had to be done for the next day, Saturday.  At the time that he was talking to her, he made no mention of the fact which he now claims that he had been driving to the legal limit of what he was allowed to drive during the preceding week.  When Mr Holmes saw him, he told him to get his lorry loaded up so that he could go out early next morning with a load to Chelford in Cheshire.  The Appellant's answer to that was that if he wanted to take the:

		"F....ing lorry he could take it himself.  His driving hours were up."

	Mr Holmes challenged the accuracy of that statement and said that he had enough hours to drive to Chelford and back without transgressing the Law.  At that point, the Appellant got out of his cab.  What happened next is the subject of factual dispute.  Mr Holmes said that the appellant came up to him and took a swing at him, calling him "... a big fat idle bastard".

He says he then hit the Appellant back in self-defence.  Unhappily, the Appellant dropped to the ground.

	The Appellant's version of events was that Mr Holmes went for him first and hit him. The Appellant says he then packed up and went home, having tried to heal the rift, but Mr Holmes was not having any of it.  The Appellant then returned to the yard next morning at 4.00 am in order to collect his personal belongings from the cab of his lorry.  He did that and returned home.  That was a Saturday morning.  On the 7th (the Monday) the Appellant went to see his doctor who noticed that he had a cut on the inside of his mouth and some grazing, consistent with the Appellant's account that he had been struck and had fallen to the floor.  He obtained a sick note; it is not certain whether that first one was for one week or two weeks.  He then obtained a second sick note, which kept him off work until 5 January.  The Respondent paid his wages up to 11 December.

	On 21 December, solicitors, acting for the Appellant, wrote to the Respondent, saying that they had advised the Appellant that his contract was at an end and that he should sue for unfair and constructive dismissal.  The letter ended with the solicitor requesting the Respondent to send back the Appellant's P45 and she did so. 

	In evidence, the Appellant said as follows; that he was off sick for a month and

		"didn't make up my mind up until the end of that period.  The P45 turned up so [I] thought that was it."

The P45 was sent off back to the Appellant's solicitors on 5 January so he probably received it on or around the 6th.  The issue in this case is not as to whether there was any direct dismissal, but whether a claim for constructive dismissal had been made out by the Appellant.

	The Tribunal came to the conclusion, in view of the evidence the Appellant had given to the effect that he had been off work for a month and had not decided, during that time, what he was going to do about coming back, that there was no constructive dismissal.  They also made a finding that there was no case made out in breach of contract on the strength of the Respondents requiring the Appellant to drive more hours than was legally permissible.  There was no evidence about hours, and so there were no grounds for claiming constructive dismissal on that account.

	The Appellant says that the Tribunal's finding that there was no constructive dismissal, was perverse.  He relied on the fact that there was an assault by Mr Holmes.  He says this was a serious breach of contract, sufficient to terminate the contract itself.  It was also conduct in breach of the implied term that the employer would so conduct himself as not to damage or destroy the confidence and trust relationship between employer and employee.  He further says it is clear from the evidence and the facts found from the Tribunal that he had left his employment as a result of, or in response to the assault, that thereafter he had been away on sick leave and did not return to work again.   In consequence, he says it is plain that he had left because of the assault and not because of any other reason unconnected with it.  He submits further that there was no suggestion in the case or in the Tribunal's finding that he, the Appellant, had waived any rights he had acquired as a result of the employer's conduct.  The Respondent in answer says the Tribunal found that the Appellant had left upon receipt of the P45 and so the assault was not a cause for his resignation.  On these findings she says there was insufficient to enable the Tribunal to find there had been a constructive dismissal. 

The EAT sympathises with the Tribunal because the facts are not easy to decide.  The ingredients of a case of a constructive dismissal are well known and there are four in number.  First, there must be a breach of contract proved against the employer.  In this instance, the Appellant's case relies upon the assault on 4 December, but we find that the findings of the Tribunal concerning this somewhat unsatisfactory.  The Tribunal came to no firm conclusion whose fault the fight was nor whose evidence about it they preferred.  This, we feel, must be the basis of a just and fair decision.  The Tribunal set out their findings about this is paragraph 5, but it seems at one point as if they are saying they thought it unnecessary to find who adopted which posture in the fight.  We feel that this is fundamental to this case.  

	Secondly, if the breach is proved, the claimant must show that the breach was fundamental, going to the root of the contract, so as to justify resignation and that the conduct of which the employer must be guilty, was conduct without reasonable cause.  Again, in this instance, there has been no specific finding by the Tribunal that if there were a breach by the employer, that breach was a fundamental repudiatory breach.  Again we find it difficult to determine this issue of constructive dismissal, without having a clear finding about this aspect. 
	There is then a third issue, namely whether the Appellant left his employment as a result of the employer's proven misconduct namely his assault. On the factual position before the Tribunal, this was never going to be an easy question for the Tribunal to decide.  There is the solicitor's letter dated 21 December, which makes plain that, on their client's instructions, they are to inform the Respondent that the Appellant has left their employment.  When the Appellant came to give evidence, he alleged that he was still undecided whether to leave up until the end of his period of sick leave; that is to say up until 5 or 6 January.  At this point the Tribunal appears to have come to two findings which are mutually incompatible.  One was that the Appellant had left his employment when his solicitors wrote requesting the P45, and the other, in paragraph 10, when they seem to have found that he had left when he received back the P45.  So again, there is an issue there as to whether the Appellant really was leaving as a result of the assault or when his solicitors asked for the P45 or because of its receipt. 

	Mr Crowley who argued this case for the Appellant with considerable force, submitted that everything indicated the Appellant had left because of the assault.  He had first left the yard to go home, suffering from his wounds and that thereafter he never returned to work again.  The Appellant returned to the yard at 4.00 am next morning and cleared his cab.  Those are all matters suggesting that the Appellant regarded his employment as at an end because of the employer's assault.  So there is an issue there which needs the facts to be found before the Tribunal can come to any soundly based judgment upon this claim for constructive dismissal.

	Lastly, there is an issue which is only hinted in the Tribunal's reasons, namely whether the Appellant's delay in deciding that he was resigning his position in fact forfeited his rights to making a claim.  In this instance, if one accepts that he made up his mind finally and ultimately to resign when he received back the P45, that was a period of some 33 days after the confrontation on the 4 December, and it is none too clear as to whether at the end of the day that might have weighed in the minds of the Tribunal as they concluded that the case in constructive dismissal was not made out.  Of course, at the end of the day, having decided, if that had been the case, that constructive dismissal was proved, it was then for the Tribunal to decide whether on the facts that dismissal was fair or unfair and in consequence, what if any compensation was due.

	We have had the Chairman's notes of evidence and we have considered whether it would be right and proper for us to make findings of fact based upon those notes.  However, having regard to the numerous matters which really do need a finding, we think it would be inappropriate for us to make the findings ourselves.   We have therefore decided that this case should be remitted to a new Tribunal to hear this matter afresh.  That being our finding we must accordingly rule that the Appeal is allowed.