Appeal No. UKEAT/0095/12/BA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

	At the Tribunal
	On 29 January 2013
                                                                                    Judgment handed down on 2 July 2013

Before
HIS HONOUR JEFFREY BURKE QC
MS K BILGAN
MRS M V McARTHUR FCIPD

MRS C HADJI	APPELLANT

 ST LUKE’S PLYMOUTH	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MRS C MITCHELL
(Solicitor)
Beers LLP Solicitors
2 Ensign House
Parkway Court
Longbridge Road
Plymouth
Devon
PL6 8LR	
For the Respondent	MR E FOWELL
(Solicitor)
Wolferstans Solicitors
Deptford Chambers – Commercial Department
60/66 North Hill
Plymouth
Devon
PL4 8EP	

SUMMARY
UNFAIR DISMISSAL – Constructive dismissal

The Respondents were found to have been in fundamental breach of contract such as to entitle the Claimant to resign.  The last such breach was in mid-February, at which point the Claimant was off work with stress.  A month later at a meeting she was given three options – to return to her existing role, to consider vacancies within the Respondents or to resign.  She did not decide between the options until at the end of May she wrote that she was starting a stress control course, hoped that the assistance she was getting would make a difference and would like to be sent details of internal vacancies.  She then changed her mind and resigned on 8 June.

The Employment Tribunal found that she had affirmed the contract of employment.  On appeal it was argued that the passage of time alone between the last breach of contract and the resignation would not, in law, amount to affirmation and that the communications between the parties prior to resignation did not support the ET’s conclusion which was perverse.

Held that the principles of affirmation were well established and their application to individual cases was for the Tribunal.  Affirmation issues are fact sensitive.  It was open to the Tribunal to infer affirmation from the sequence of events and in particular the communication at the end of May.

HIS HONOUR JEFFREY BURKE QC 
The nature of this appeal
1.	This is the appeal of Mrs Hadji against the Judgment of the Employment Tribunal, sitting at Plymouth, presided over by Employment Judge Carstairs and sent to the parties on 27 October 2011 after a one day hearing two days earlier.

2.	Mrs Hadji claimed that she had been constructively unfairly dismissed by her employers, St Luke’s Hospice, the Respondents.  They denied dismissal and claimed that the Claimant’s resignation was not caused by any breach of contract which entitled her to resign.  The issues which the Tribunal had to decide were identified by agreement at paragraph 1 of the Tribunal’s Judgment as follows:

“1.1.1 Whether the respondents acted in breach of contract in a way entitling the claimant to resign.
1.1.2 Whether the claimant delayed resigning following the last act amounting, with other acts, to a fundamental breach of contract so that she was taken to have affirmed the contract.
1.1.3 Whether the claimant resigned because any of such breach of contract.
1.1.4 Whether, if there was a dismissal it was an unfair dismissal.”

3.	The Tribunal’s conclusions were set out at paragraph 6.1 to 6.8 of their judgment.  We will come back to detail later; in summary their conclusions were:

(1)	There were three matters of which the Claimant complained which together amounted to a fundamental breach of the contract of employment; they took place on 1 October 2010, 28 January 2011 and 15 February 2011.  Those breaches would have entitled the Claimant to resign and complain that she had been unfairly dismissed.

(2)	The Claimant did not resign promptly after the last of those breaches; she had affirmed the contract of employment by an email which she sent to the Respondents on 26 May 2011.

(3)	She then decided on 8 June 2011 not to return to work and to resign; but her resignation came too late.  She had not made up her mind soon after the last breach of contract.  

4.	There is now no appeal against the Tribunal’s conclusion that there was a fundamental breach of contract.  The Claimant’s appeal attacks the Tribunal’s findings that she had affirmed the contract by her email of 26 May and by not resigning sooner.  

The facts
5.	It is not necessary to set out the full history of what went wrong between the Claimant and the Respondent.  Until March 2010 the Claimant had a good relationship with her line manager.  Then her husband suffered a heart attack and was dangerously ill; he was diagnosed as having a syndrome which was life threatening and which could have affected their children and grandchildren.  Not surprisingly the Claimant was very stressed and went off work for two months before trying, but failing, to return on a phased basis.  She came back to work in August; but from then it seems the relationship deteriorated.  On 1 October she sought help from Human Resources and was referred to her line manager who told the Claimant that she was being negative.  That was held to be the first breach of contract.  In December the Claimant submitted a lengthy grievance relating to her line manager.  The second breach arose from the Respondent’s failure to deal with that grievance appropriately.  The third breach arose from the Respondent’s failure to deal appropriately with the Claimant’s appeal against the outcome of her grievance.  

6.	The Tribunal’s findings as to what happened after the last of those three breaches are set out at paragraphs 3.19 to 3.23 of their judgment as follows:

“3.19 In February the respondent made an occupational health referral for the claimant.  On 28 February a report was received from the occupational health department that the claimant’s relationship with her manager, which had previously been good, was a significant barrier to her return and recommended secondment elsewhere.
3.20	 On 23 March there was a meeting between the claimant, Mr Statham and Ms Holman to discuss the way forward.  The respondent wanted to enable the claimant to return but explained that her options were to return to her existing role, consider vacancies or resign.
3.21	 The claimant was referred by her GP to Plymouth Options, a mental health support service, who put her in touch with Remploy.  They recommended ways that she should try to return with their support.
3.22	 The claimant wrote an email on 26 May to the respondent hoping that, with Remploy’s help, she could salvage her employment.
3.23	 When the claimant contemplated the actual return in June, she decided that she could not return and wrote resigning on 8 June with notice to expire on 8 July.”

7.	The email of 26 May has taken a central role in the submissions before us; and it is helpful, therefore to set it out in full.  It said:

“Dear Tracey
I have just met with Nathan Findlay from Remploy.  He is keen to attempt to salvage my employment with St Luke’s, though I have at the moment told him that I do not mentally feel that it will be possible.  Obviously with the current job situation in Plymouth, that would be my best option.
I am due to start a 6 week stress control course on 9th June which Nathan feels will make a difference to how I am feeling.
Could you please recommence sending me notification of any internal vacancies.  Nathan thinks that if there is something suitable, away from my current line manager, that he could provide support for me and guidance for St Luke’s to help me to return.
I am sorry that I can’t be more positive about my future but hope that the next few weeks, with some positive intervention by Options and Remploy will make a difference.”

8.	It was sent in response to two emails from the Respondent, on 6 April and 12 May respectively, in which the Respondent sought to discover how the Claimant intended to proceed.

The Tribunal’s conclusions
9.	Having directed themselves on the law in section 5 of their judgment, the Tribunal set out their conclusions in section 6.  At paragraph 6.1 to 6.5 they identified the breaches of contract to which we have referred and concluded that they were fundamental breaches entitling the Claimant to resign.  They dealt with what happened thereafter in paragraphs 6.5 to 6.8 which are as follows:

“6.5	 The tribunal is satisfied that those are fundamental breaches that would entitle the claimant to resign and complain that she had been unfairly dismissed.  However, the claimant did not resign on or shortly after those occasions.  Indeed, she obtained assistance from Remploy as a result of which she sent an email to the respondent on 26 May hoping that, with Remploy’s help, she could salvage her employment.  The tribunal is satisfied that the decision she took at that time amounted to an affirmation of the contract.  She had made clear that she was intending to resign, notwithstanding the breaches which would have entitled her to resign and claim that she had been constructively unfairly dismissed.
6.6 Accordingly, when she worked towards the return and was faced with the reality in June of returning to work with the respondent and decided that she could not return to work so she resigned, this was after she had affirmed the contract to the respondent.
6.7 The tribunal is satisfied that what happened satisfies the guidance set out in Cantor Fitzgerald.
6.8 In any event the tribunal noted that she had left her resignation for four months from the last event which amounted to a breach entitling her to resign.  Accordingly she failed the test set out in Western Excavating that she had to make up her mind soon after the complaint of which she complains.”

10.	We should make it clear that it was agreed before us that the word “not” was accidentally omitted from and should be inserted between the words “was” and “intending” in the last sentence of paragraph 6.5; otherwise that sentence makes no sense in the context of that paragraph and what follows it.

11.	Accordingly, the Claimant’s claim was dismissed. 

The review applications
12.	On 27 October and again on 1 November 2011 the Claimant wrote to the Employment Tribunal, in effect seeking a review on the grounds that she had been under stress at the hearing (at which she was not represented) and that the meeting of 23 March 2011 (see paragraph 3.20 above) was a final straw.  She said in the second application that on 23 March 2011 she had been given three options, the options described in paragraph 3.20 of the Tribunal’s Judgment (see para. 6 above) and that on 8 June she had chosen the third of those options because she was not in a fit state mentally to consider the other two.  The Employment Judge refused a review, on the basis that the events of 23 March did not amount to a last straw and, in any event, the Claimant had affirmed the contract thereafter.

13.	On 21 January 2011 the Claimant, by her present solicitors, made another review application, on this occasion seeking a reconsideration of the Tribunal’s finding of affirmation, basing her argument, as her solicitor, Mrs Mitchell did before us, on the content of the email of 26 May which, it was argued, the Tribunal had misconstrued.  It was also asserted that the Tribunal had failed to take into account the Claimant’s ill health in considering affirmation and that the Claimant had attempted to resign well before 26 May 2011.  The Employment Judge refused this further application for reasons which are set out in detail in the Employment Tribunal’s letter to the Claimant’s solicitors of 7 December 2011.  He said, on the second page of that letter:

“The tenor of that email was that Remploy was keen to salvage the claimant’s employment with the respondent and that, although the claimant did not feel mentally at that time that it would be possible, she expressed the hope that, with some positive intervention, the organisations Options and Remploy would make a difference.
The judge does not, therefore, believes that the decision on that matter, to the effect that the claimant hoped that she could salvage her employment, will be varied or revoked.  The claimant has set out the guidance from an individual who was assisting her and, at the end of the email, hoped that the difference will make a difference.  That hope is inconsistent with an intention to resign.”

and he also said that the Claimant had not at the hearing put forward her ill health as a reason for delay.

14.	We have referred to these review applications because Mrs Mitchell, on behalf of the Claimant, argued that we should do so in considering the appeal and, indeed, plainly wished us to do so.  However, normally what passes between a party and the Tribunal after a decision from which an appeal is brought is not relevant to that appeal unless it appears that the Employment Judge, in addressing a review application, has said or done something which conflicts with the judgment appealed from.  That does not appear to be the case here.

The Claimant’s arguments
15.	Mrs Mitchell put forward three principal submissions in support of the appeal.  We will summarise them, we hope not unfairly, in this way:

1(a)	The email of 26 May 2011 did not express a hope that, with Remploy’s help, the Claimant could salvage her employment; the Tribunal had misconstrued it.  The correct interpretation of the email was that, while Nathan Findlay of Remploy was keen to salvage her employment, the Claimant herself said that she did not feel that that would be possible.  Although she asked to be notified of vacancies, that did not of itself amount to an affirmation, nor did the email as a whole.  As a whole it was to the opposite effect.

1(b)	The Claimant’s oral evidence was consistent with her not considering a return to work for the Respondent at that time; her evidence contained nothing which supported the view reached by the Tribunal; for these reasons the Tribunal’s conclusions as to the effect of the email were perverse.

2(a)	The lapse of time between the last breach of contract on 15 February and the Claimant’s resignation on 8 June did not of itself entitle the Tribunal to find affirmation; although the classic statement of Lord Denning in Western Excavating v Sharp could be taken to permit a Tribunal to conclude in favour of affirmation by reason of the effluxion of time alone, that statement had been modified by subsequent decisions and the law was now as set out in the subsequent cases to which we have referred earlier.

2(b)	Further the lapse of time was attributable to the Claimant’s ill-health which rendered her unable to work, unable to receive pay and she had not called upon the Respondents for any performance of their obligations.  Mrs Mitchell relied in support of this point on the decision of the Employment Appeal Tribunal in Fereday v South Staffordshire NHS Primary Care Trust EAT/0513/11.

3.	For the sake of completeness we should mention that, in her skeleton argument Mrs Mitchell put forward the submission that the Claimant had resigned at the meeting on 23 March 2011.  It did not appear that that contention had been put before the Tribunal; if it was, the Tribunal did not refer to it; and in any event the point was not raised in the Notice of Appeal.  When we drew to her attention the procedural difficulties arising from the absence of this point in the Notice of Appeal, Mrs Mitchell chose not to seek to amend the Notice of Appeal and did not pursue the point further.

The Respondents submissions
16.	Again in summary form, Mr Fowell submitted on behalf of the Respondent that:

	1(a)	The natural meaning of the words in the email of 26 May was that the Claimant hoped to salvage her employment with the help of Remploy; the construction put upon that email by the Tribunal was one which was open to them.

	1(b)	The Claimant’s oral evidence supported rather than undermined the Tribunal’s conclusion.

	1(c)	The Claimant had not demonstrated perversity.

	2.	As to lapse of time while it was accepted that mere delay did not constitute affirmation of itself, it could be evidence from which affirmation could be implied; it was open to the Tribunal so to infer from the substantial delay in this case; whether it did so or not was a matter of fact for the Tribunal.  Fereday contained no departure from established authority but it demonstrated that each case in this area is fact sensitive.

The law
17.	We do not need or intend in this judgment to add to the authorities on affirmation in the field of employment contracts and constructive dismissal, the effect of which is, in our judgment, clear.  The essential principles are that:
	(i)	The employee must make up his [her] mind whether or not to resign soon after the conduct of which he complains.  If he does not do so he may be regarded as having elected to affirm the contract or as having lost his right to treat himself as dismissed.  Western Excavating v Sharp [1978] ICR 221 as modified by W E Cox Toner (International) Ltd v Crook [1981] IRLR 443 and Cantor Fitzgerald International v Bird [2002] EWHC 2736 (QB) 29 July 2002.

	(ii)	Mere delay of itself, unaccompanied by express or implied affirmation of the contract, is not enough to constitute affirmation; but it is open to the Employment Tribunal to infer implied affirmation from prolonged delay – see Cox Toner para. 13 p446.

	(iii)	If the employee calls on the employer to perform its obligations under the contract or otherwise indicates an intention to continue the contract, the Employment Tribunal may conclude that there has been affirmation: Fereday v S Staffs NHS Primary Care Trust (UKEAT/0513/ZT judgment 12/07/2011) paras. 45/46.

	(iv)	There is no fixed time limit in which the employee must make up his mind; the issue of affirmation is one which, subject to these principles, the Employment Tribunal must decide on the facts; affirmation cases are fact sensitive: Fereday, para. 44.

These principles have to be applied to the circumstances of this case.

The email
18.	It is not disputed that, at the meeting of 23 March, which itself took place approximately five weeks after the last breach of contract, three options were put before the Claimant, namely returning to her post, applying for other vacancies with the Respondent and resigning.  The Claimant herself so described the effect of that meeting in her letter of 27 October seeking a review; that, of course, was not available to the Tribunal at the substantive hearing; but the Tribunal correctly described the effect of that meeting in paragraph 3.20 of their judgment.  That sets the background to what followed.

19.	Mrs Mitchell accepted during submissions that, if the Claimant had been offered a different post with the Respondent and had accepted it, she would have continued to be employed under the same contract of employment, varied as appropriate for the new post.  Thus the first two of three options involved affirmation of the contract; resignation, of course, would lead to the opposite result.  The note of the meeting of 23 March makes it clear that the Respondent saw the purpose of that meeting as attempting to achieve the Claimant’s return to the hospice.  

20.	The Claimant did not resign.  As we have said, the Respondent emailed her on two occasions asking how she wished to move forward; and the email of 26 May was a response to those approaches.

21.	By that time the Claimant had obtained assistance from Mr Findlay of Remploy; her oral evidence shows that she had been receiving such help from April.  In our judgment, in the context which we have described it was plainly open to the Tribunal to read the email of 26 May as telling the Respondent that Mr Findlay was seeking to help her to salvage her employment and that she hoped that she could do so.  She said that salvaging her employment was her best option.  She also said that she did not mentally feel that that would be possible but she said that that was the position “at the moment” and went on to state that she was intending to start a stress control course which Mr Findlay felt would make a difference to how she was feeling.  She then asked the Respondent to begin again sending her notification of internal vacancies.  She ended by expressing the hope that in the next few weeks Remploy and Options, who had sent her to Remploy, would make a difference.

22.	Mrs Mitchell’s argument is that, on the correct construction of that email, the Claimant was telling the Respondent that she did not feel that it would be possible to return to work; but that argument ignores the words “at the moment” in the second sentence of the email and ignores the remainder of the email.  When the email is read as a whole, including the words “at the moment” and the rest of the content, it becomes clear that the approach which the Tribunal took to the meaning and effect of that email, set out at paragraph 6.5 of their judgment, was one which was open to them.  We do not need to decide whether that was only correct approach; we have no doubt that it was a permissible approach.

23.	The notes of the Claimant’s evidence do not, in our judgment, advance the Claimant’s case.  Mrs Mitchell placed emphasis on the answer at the beginning of the Claimant’s cross-examination (her evidence in chief was by way of statement) which was as follows:

 “Stress control course made me question what had been happening - my stress out of control - wanted stress to end - by resigning that was my way of knowing wouldn’t have to go back to ST LUKE’S and try again.”

24.	However, that answer must relate to a period after the email of 26 May; it is clear from the email that the stress control course had not begun at its date and was due to begin thereafter.  

25.	Subsequent answers throw more light on the Claimant’s position as at 26 May; she said:

“Yes Peter Fenwick at Options invited REMPLOY to attend
I thought REMPLOY to help me find alternative work and support to get back - they started trying to help back to old job.
Not happy to give that a go - didn’t feel easy certainly first meeting - upset when left first meeting - the NATHAN FINDLAY came to house and I said happy REMPLOY to help back to work.
Asked for vacancies to be sent again - 
Q	hopeful with REMPLOY assistance returning to ST LUKE’S
Having seen NATHAN FINDLAY - he very positive it was about personality clashes and not the job.”

And further:

“Q	R1/135 TRACEY HOLMAN very positive and would support [27/5/11]
Yes
After that idea of returning couldn’t do at all and changed my mind.”

26.	These answers indicate that the Claimant had been seeing Remploy since April, that Remploy were seeking to help her get back to employment with the Respondent and that she was content that they should do so but that, after the email of 26 May, she changed her mind.  They provide support for the Tribunal’s conclusions.

27.	We have set out earlier that Mrs Mitchell put the Claimant’s appeal under this heading forward as a perversity argument.  In order to establish perversity, as is well known, it must be overwhelmingly demonstrated that the Tribunal came to a conclusion which no reasonable Tribunal could have come; see Yeboah v Crofton [2002] IRLR 637 at paragraph 93.  In our judgment the Claimant has not overcome that high hurdle for the reasons we have set out; the conclusion reached by the Tribunal as to the effect of the email of 26 May was one which was open to them and which has not been successfully undermined by this appeal.

Delay
28.	Our conclusion on the first limb of this appeal must have the effect that the appeal as a whole fails and the judgment of the Tribunal must stand.  However, it may be helpful if we set out our conclusions on the second limb of the appeal, relating to delay.  The Employment Appeal Tribunal’s decision in Fereday does not contain any departure from or addition to the established principles which we have set out above.  We have referred to it there because it reinforces the principle that cases on affirmation are fact sensitive.  It does not conclude that the established principles should be applied so as to require an Employment Tribunal to regard it as not open to them to imply affirmation from delay when the employee is absent from work, unwell and not receiving sick pay.  Mrs Fereday was seeking sick pay; but that was not the sole basis on which the Employment Appeal Tribunal upheld the Employment Tribunal’s decision that she had affirmed the contract of employment.  At paragraph 44 of the Judgment the EAT said:

“This approach in our view shows clearly that although affirmation is needed, it can be implied by prolonged delay and/or if the innocent party calls on the guilty party for further performance of the contract.  This is precisely what happened here.  The Employment Tribunal was quite entitled to take the prolonged delay of nearly six weeks between the grievance decision on 13th February 2009 and the claimant’s resignation sent on 24th March 2009 in the light of the earlier history as an implied affirmation, bearing in mind that the claimant was expecting or requiring the Respondents to perform their part of the contract of employment by paying her sick pay.  That decision does not constitute any arguable error of law.”

29.	The Claimant in the present case was not seeking sick pay; but she was asking the Respondent to send her notification of vacancies and three months passed between the last breach of contract on 15 February and her resignation on 8 June; 2 ½ months had passed since 23 March when the three potential options had been spelt out to her.

30.	The fact, that the Claimant was not at work and not receiving pay do not, in our judgment, require the Tribunal to conclude that there was no affirmation; if the Claimant had been at work or receiving pay, unless she had expressly reserved her position, the Respondent’s case that there had been affirmation would have been overwhelming; but it was not necessary that she should be at work or receiving pay for affirmation to be established.  As for ill health, there was no medical evidence that the nature or degree of her ill health was such that she was disabled from making a decision between three options presented to her on 23 March prior to 8 June.

31.	In these circumstances it was, as we see it, open to the Tribunal to conclude that, in the context, the delay was such that affirmation should be implied.  While the conclusion set out by the Tribunal in paragraph 6.8 of their judgment is succinct, when the judgment is read as a whole there is sufficient to explain the Tribunal’s conclusion and to convey to the parties why they had respectively won and lost on this issue.

Conclusion
32.	Accordingly, for the reasons we have set out, this appeal must be dismissed.