Appeal No.	EAT/1305/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 March 2002

Before
MR COMMISSIONER HOWELL QC
MR D CHADWICK
LORD  DAVIES OF COITY  CBE

MRS E G McWILLIAMS	APPELLANT

THE REGARD PARTNERSHIP	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR S PINDER
(Solicitor)
Messrs Edwards Abrams Doherty
Solicitors
125/131 Picton Road
Liverpool
L15 4LG	

MR COMMISSIONER HOWELL QC:

1	This is the preliminary hearing of an appeal by Mrs Elaine Geraldine McWilliams, against the decision of the Liverpool Employment Tribunal sitting on 25 June 2001, set out in Extended Reasons sent to the parties on 21 September 2001.  

2	The proceedings before the Tribunal brought by Mrs McWilliams alleged unfair dismissal and wrongful dismissal against a firm called The Regard Partnership, for which she had worked as a senior support worker.  As recorded by the Tribunal the business of her employers was that they ran residential homes for people with learning disabilities or behavioural difficulties.

3	The Originating Application alleged that Mrs McWilliams had been summarily dismissed, unfairly and wrongly, on 26 August 2000.  That dismissal took place after a dispute as to whether she had failed to comply with a reasonable management instruction to carry out sleeping-in duties in one of the residential homes, such duties being normally part of her job as a senior support worker.  The Respondents’ Answer dated 16 October 2000 specifically recorded that she had been dismissed, and that the reason for her dismissal had been gross misconduct.   In the detailed paragraphs in the Answer, it was recorded that on 26 August 2000 she had attended for work at 5:00 pm and asked the team leader if she would be dismissed for not undertaking sleep-in duty due to commence at 10:00 pm.  The team leader advised her that she would be summarily dismissed and the Applicant left the building.  That exchange followed her being given a final written warning on the same day and on the same occasion, stating clearly that following earlier disciplinary proceedings failure to comply with the requirement to work in accordance with her rota’d hours would result in her immediate dismissal.  Nevertheless, she went off the job and did not return.
4	The issues, as defined by the Tribunal at the outset of the hearing, were however, expanded by what we understand was an additional issue then introduced by the legal representative for the Respondents for the first time.  This was whether in the circumstances in which Mrs McWilliams’ employment had terminated had amounted to a dismissal at all or to a resignation by her.  That was raised by the legal representative for the first time at the outset of the hearing.  Thus as recorded by the Chairman in the Extended Reasons at page 4 of our appeal file, the issues were that the Applicant claimed that she had been unfairly dismissed without a proper hearing and in disregard of her protests about the rate of pay.  The Respondents at the hearing denied that they dismissed the Applicant or that they were in breach of her contract of employment or that they proceeded in any way unfairly.  

5	The Tribunal’s findings as to the material to the questions we have to deal with are recorded in paragraphs 3(h), (i) and (l) of their Extended Reasons as follows.  Paragraph 3(h) records that her duties had been changed by agreement to a different residential care home from the one she had previously been employed in, following earlier difficulties the nature of which is not material here, and then in paragraph 3(i):

“(i) On 16 August 2000, the applicant started work at Balfour Road.  There, sleep-in duties were required of her.  She refused to perform these.  Mrs Stadames met her to discuss her refusal.  The applicant said that she refused to sleep in because the senior care worker at Balfour Road did not do so.  She also objected to the reduced rates of pay.  Mrs Stadames offered her the chance to reflect on her attitude but she said she was adamant.”

6	There was then a disciplinary meeting, following which she was issued with a final written warning stating in the terms, to which we have already referred, that any continued refusal to carry out the rota’d sleep-in duties would result in her immediate dismissal.  At paragraph 3(l):

“(l)  On 26 August 2000 at 5 pm, the applicant arrived at work.  She asked her team leader Mrs Farragher whether she would be sacked if she refused to do the sleep-in duties.  Mrs Farragher said that she would be sacked if she did not comply with the shift requirements.  The applicant immediately left the building and did not return.”

7	Those were the findings of fact by the Tribunal.  Their conclusions were shortly expressed in paragraph 4 of the Extended Reasons as follows:

(a)  Was the applicant dismissed?  She was not.  When she walked out at the beginning of her evening shift, she did not intend to (and did not in fact) return.  No one had then told her she was dismissed.  Mrs Farragher had not:  she had merely offered her view on the consequences of failing to comply with the shift requirement.  The applicant anticipated what she believed would happen when she adhered to her unshakeable determination not to do the sleep-in duties.  She resigned.
(b)  Did the applicant resign in circumstances that amounted to her constructive dismissal?  She did not.  The respondents were not guilty then or any time of a breach of an express term of the contract of employment.  The rate they proposed to pay the applicant for the sleep-in shift was what she had agreed to when she moved … and accepted without demur thereafter.  It was the express contractual rate.  Nor were the respondents in breach of the implied term as to trust and confidence.  They complied with the contract.  They supported the applicant with timely action when she needed support.  Nothing in their conduct might warrant a forfeiture of her trust and confidence.”

8	The Tribunal held, on the basis of the first finding, that the complaint of breach of contract and necessarily also the complaint of unfair dismissal failed.  We initially found it surprising that the question of whether she had been dismissed at all by the Respondents or resigned became an issue before the Tribunal, given the very clear terms of the Originating Application and the Respondents’ Answer to it.  But in any event we have been satisfied, having heard Mr Pinder on behalf of the Appellant today, that having regard to the findings of fact which we have set out, arguable issues do arise on whether the Tribunal failed to address adequately the evidence and the express provisions of the Respondents’ Answer acknowledging that there had been a summary dismissal, and thus whether they erred in determining the case on the basis that there had been a resignation.  Secondly, we think it is arguable that in any event they misdirected themselves in holding, on the basis of the findings they made, that she had resigned and had not been dismissed; or had not, for example, had her contract terminated by the employer’s acceptance of her own repudiatory conduct in disregarding a reasonable management instruction and walking off the job on 26 August 2000.  Thirdly, and following from those two questions, we think it is also arguable that the Tribunal erred in failing to go on and make findings and express conclusions on the major issue of fairness which up until the outset of the Tribunal hearing had been the principal issue between the parties in the case.

9	For those reasons we will direct that this case should go forward to a full hearing, inter partes, before the Employment Appeal Tribunal.  We direct it should be set down in listing Category C with a time estimate for the hearing of half a day.  No Chairman’s notes of evidence are required.  Skeleton Arguments are to be exchanged between the parties, lodged with the EAT office not later than 14 days before the date fixed for the full hearing.