Appeal No.	 EAT/295/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 December 1997

Before
HIS HONOUR JUDGE B HARGROVE QC
LORD DAVIES OF COITY CBE
MRS J M MATTHIAS

MR O WIDDICOMBE	APPELLANT

LONGCOMBE SOFTWARE LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ANDREW EATON-HART
(of Counsel)
Messrs Gowmans
Solicitors
65 Hyde Road
Paignton
Devon
TQ4 5BT	
For the Respondents	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED	

	JUDGE HARGROVE QC:     The appellant was employed by the respondent in September 1993. There was a transfer of undertaking prior to that. In August 1995 the appellant suffered an accident damaging his spine and he was off work until 1st January 1996. During the period of his illness he received letters the first which was dated 15th September 1995 indicating that the employer was hoping to see him back at work as soon as possible. There was further letter dated 30th October where the first inklings of problems ahead was forecast. It reads:

“As part of our planning for next year we are making some very significant changes in the role of each one of us. It is very likely that your job responsibilities will change, with much more emphasis on installation, training and support. I am telling you this now because I am uncertain about how committed you are to Longcombe and to being based in London. It may be that knowing that things are to change, you might prefer to stay in the West rather than return to London. Please write and let me know what you think.”

There was then a further letter in November from the employer, the material passage is this:

“I wrote to you last month about your intentions towards Longcombe, in view of the changes which we have been obliged to make during your long absence. Please reply as soon as you can.”

There does not seem to be any reply. 

	The next stage is that the appellant wished to go back, but unfortunately his vehicle had a breakdown, and although this does not appear in the IT1 reasons, he telephoned the respondents and was told not to hurry back. 

	The next stage was that the appellant replied on 13th January. The material passage reads:

	“From your letters I see that the company has changed and each of our roles within the company has also changed. Obviously I do not know now what my role is within the company and the shape of the re-structured Longcombe. Until I have a clear idea of the changes, I cannot form any thoughts as to commitments. I do detect though from letters and conversations that perhaps Longcombe no longer requires my services, since alterations have had to be made to the company.”

	What the Industrial Tribunal decided was that on 1st January 1996 his employment had come to an end. The tribunal does not vouchsafe the manner in which the employment came to an end, the employers having been talking about resignation. The employee as we shall see a little later on uses the term “redundancy”. The interesting thing about that letter is that it is wholly inconsistent with resignation, and indeed, inconsistent with actual dismissal. It is consistent with employment continuing. The Industrial Tribunal makes no finding that that was either a disingenuous or dishonest letter. 

	There is a further letter which is dated 18th January 1996 from the employers. Again there are a number of complaints about which our view at this stage is unimportant, but what is important is the final paragraph of the letter of 18th January:

“I am afraid that we therefore concluded that you were not committed to Longcombe and would not be returning. Consequently, we hired a replacement software writer, which was essential in your absence, and we abandoned the project to re-write Labelmaster. I cannot see any reason to change my mind about your commitment at this time and therefore I consider it best [and this is a phrase which we consider is important] that we now look at parting company.[Our emphasis]”

Clearly the future term is being used there. There is no question of “you have resigned”. There is no question that “we have dismissed you”. It is a negotiating letter.

	The reply from the appellant dealt with various matters concerning redundancy payments. It was quite obvious the appellant did not understand what redundancy really meant. He says this:

“Thank you for your letter of 18th January 1996. Although you haven’t used the words as such your letter implies that my services are no longer required and that I am to be made redundant.”

Again, the future tense is used. Again, it is impossible to imply from that that he is accepting that his employment is at an end. It is to be terminated by redundancy as he sees it.

	The reply from the employers was that there was no implication that he was being made redundant. On the contrary, “we thought you had resigned your employment”. 

	Solicitors then come upon the scene. They make it quite clear in a letter of 26th February 1996 that there is no question of resigning. They say “have you made the appellant redundant”.

	On 27th February 1996 there is a letter of real significance. It is written to the solicitors parties are at arms length:

“We are replying to your letter of 26 February 1996. We should be happy to make Owen redundant if he would satisfy us that he had the intention of returning to London at the end of his sick leave.”

Again, in the future. Again, the position being that the employers say that they believed that the appellant had resigned, but they were willing to make him redundant. That is followed up by a further letter from the respondents which seems to have been received on 19th April 1996:

“We have no substantive proposals for Owen, our position remains that he failed to present himself for work when his sick leave expired in circumstances which clearly showed that he had no intention of returning. Further, his behaviour during his sick leave indicated even more clearly that he felt no responsibility towards his duties to us, ... We therefore consider that Owen resigned his employment of his own volition when his sick leave expired.”

	It is not however until 26th April that the employers give an unambiguous statement:

“... Owen relinquished employment with us on 1 January 1996, of his own volition and there is absolutely no question of redundancy. There is no contractual right for Owen to carry forward unused paid holiday.”

	Now the way in which that was dealt with by the Industrial Tribunal was as follows. Because they were dealing with only the question of jurisdiction and whether the IT1 which was put in on 17th July 1996 and was received on 19th July, was out of time being beyond the three month limit.

	In the extended reasons the tribunal found as follows:

2	The facts are:-
(a)	That the Applicant had been employed by the Respondents as a software writer and had suffered a road accident in August 1995 and consequently was unable to work. He provided medical certificates and was on statutory sick pay until December 1995.
(b)	In January 1996 he indicated that he would be returning to work but did not do so and meanwhile the Respondents had replaced him with an alternative software writer.
In the correspondence it is quite clear that the Applicant knew that his employment was not continuing and he did not receive any payment for the months of January, February and March.
(c)	In February 1996 he consulted a solicitor who continued with the correspondence endeavouring to settle the matter. The application was submitted on 19 July 1996.
3 	From the facts it is clear that the Applicant realised in January 1996 that his employment was terminated and instructed solicitors to act on his behalf in relation to the same. The solicitors did not put in his application and we accept Mr Cusk’s evidence when he informed that the P45 was dated 31 December 1995 and that he had formed the opinion that the Applicant had no intention of returning to work after the end of his sick leave.
4	We conclude that the Applicant’s employment terminated on 31 December 1995 at the end of his sick leave and as his application was submitted in July 1996 it is outside the three month time limit laid down in the Act. ...”

	The way in which this appeal is put is first of all, can the tribunal’s findings be justified  by the evidence before them? 

	The first difficulty is that there is no proper finding as to the manner in which this employment came to an end. It is not clear whether it was by resignation, redundancy, dismissal or other substantial reason. Secondly, it does not seem to have taken account of the straightforward point of law that where there is ambiguity then and only then is one entitled to look at what reasonable employee would understand the position to be, but any notice of termination must be construed strictly against an employer. A fortiori, if an employer endeavours to assume that the employment has come to an end, it is necessary for that employer to set out in the clearest possible terms the manner in which that employment has been so terminated. What is quite clear, however, is that all the evidence placed before the tribunal, and particularly the correspondence, indicated that there was a continuing situation where the parties were either assuming that the employment was continuing, or that it was going to be terminated at some future date. It is not until the letter of 26th April 1996 that there is a clear indication that employment there and then being terminated.

	We have considered whether the letter from the solicitors indicating that they intended to take steps before the Industrial Tribunal for unfair dismissal was in fact an acceptance of a repudiation, but we are persuaded that it is not sufficiently definite in its terms to justify such an acceptance being interpreted into it.

	We are, therefore, satisfied first of all that there was no sufficient evidence before the tribunal to form the view that was formed; and that secondly, that the proper date for the termination of this employment was 26th April 1996. We shall therefore remit the case to a differently constituted tribunal in order that the substantive matters may be tried.

	For the avoidance of doubt, it is said that we consider, therefore, by reason of those dates, as must be apparent, that the IT1 was within time and the tribunal therefore has jurisdiction.