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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Asghar & Co Solicitors v Habib (Unfair Dismissal) [2017] UKEAT 0332_16_1505 (15 May 2017) URL: http://www.bailii.org/uk/cases/UKEAT/2017/0332_16_1505.html Cite as: [2017] UKEAT 332_16_1505, [2017] UKEAT 0332_16_1505 |
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Before
(SITTING ALONE)
ASGHAR
& CO SOLICITORS APPELLANT
MR
Z HABIB
RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
(of Counsel) Instructed by: Messrs 112-114 The Broadway Southall Middlesex UB1 1QF
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(of Counsel) Instructed by: Landmark Legal LLP 284 Harrow Road London W2 5ES
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SUMMARY
UNFAIR DISMISSAL - Constructive dismissal
Constructive dismissal - breach of contract - affirmation
The ET had made findings as to repudiatory breach of contract that went beyond the case pursued by the Claimant, specifically finding that the last straw was an act that had taken place on 14 August 2014, some weeks after the last matter on which the Claimant had relied. That said, the Respondent’s appeal on this basis would not be allowed as the ET had permissibly concluded, in the alternative, that the matters relied on by the Claimant would themselves amount to a cumulative breach of the implied obligation to maintain trust and confidence.
The ET had then, however, also proceeded to determine the question of affirmation on the basis that the last straw had taken place on 14 August 2014 and had considered the question of the Claimant’s delay in resigning and the parties’ interactions only from that time. Although the ET had gone on to assert that it would have reached the same conclusion on affirmation whether the last straw had been 14 August 2014 or some weeks earlier, its reasoning failed to disclose any active consideration of the Claimant’s conduct and the parties’ communications and interactions in the weeks prior to 14 August and it was not possible to understand its explanation for its conclusion with any confidence that it had taken that relevant earlier period into account.
In the circumstances, the Respondent’s appeal would be allowed on the affirmation point and remitted - to the extent that it was still possible - to the same ET for reconsideration.
HER HONOUR JUDGE EADY QC
Introduction
1. In this Judgment I refer to the parties as the Claimant and Respondent as below. This is the Full Hearing of the Respondent’s appeal from a Judgment of the Watford Employment Tribunal (Employment Judge Mahoney sitting alone on 22 to 24 March 2016; “the ET”), sent to the parties on 25 April 2016. Representation before ET was as it has been on this appeal.
2. By its Judgment the ET upheld the Claimant’s complaint of constructive unfair dismissal. The Respondent’s appeal was initially considered on the papers by the Honourable Mrs Justice Simler DBE (President) to disclose no reasonable basis to proceed. After a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 before the Honourable Mrs Justice Slade DBE, the appeal was permitted to proceed on the following grounds:
(1) Whether the ET erred in concluding that the matters identified at paragraph 11.2.3 of its Reasons were grounds for constructive dismissal;
(2) Whether the ET erred in its conclusions on affirmation by:
(1) failing to identify and having regard to the actual period of delay,
(2) failing to have regard to the absence of any explanation by the Claimant for such delay,
(3) failing to have regard to the overwhelming evidence that the Claimant and the Respondent were treating the contract of employment as subsisting by:
(i) the Claimant demanding and receiving contractual remuneration and statutory sick pay, and
(ii) the Claimant being invited to and himself calling for an investigation into the events of 21 July 2014;
(3) Whether the ET made a finding at paragraph 12.1 which was unsupported by the evidence and perverse.
The Background Facts and the Employment Tribunal’s Conclusions
3.
The Respondent is a firm of solicitors, founded by Mr Mohammad Asghar.
It has two offices but the main one is in Southall. At some stage Miss Nazeem
Kadri went into partnership with Mr Ashgar (it was disputed before the ET as to
whether this was on an equity or salaried basis). In 2011 Mr
Asghar’s
daughter, Zahra
Asghar,
undertook her traineeship as a solicitor with the
Respondent; she was admitted on to the Roll in November 2013 and became head of
the Family Department within the Respondent, going on to become a partner in
October 2014. Mr Ashgar’s son, Farhan
Asghar,
also started working at the
office at about the same time as his sister. The ET found Mr
Asghar
tended to
regard the Respondent firm as his, taking little notice of Miss Kadri, and
being influenced by his children. For her part, Miss Kadri had difficult
relations with Mr Ashgar’s children and resented their influence.
4.
From 2002 the Claimant was employed by the Respondent, initially as an
interpreter/ translator/general office assistant but over time taking on
further roles, such as that by 2014 he had been promoted to legal accounts
clerk/bookkeeper and was a key member of the support staff in the Respondent’s
Southall office. The Claimant’s brother, Masood Ahmed, a qualified solicitor,
also carried out work for the Respondent as a self-employed duty solicitor. From
2011, tensions had started to arise between the Claimant and Zahra and Farhan
Asghar.
5.
On 21 July 2014, an incident occurred between Zahra Asghar
and the
Claimant; as the ET found, Miss
Asghar
threatened the Claimant with “consequences”.
Miss Kadri sought to investigate what had occurred when she arrived in the
office but Miss
Asghar
denied threatening the Claimant and claimed that she had
been sexually abused by him. On Miss Kadri contacting Mr
Asghar
(senior) - who
was away from the office - about the incident she was told not to do anything
and that he would deal with it. Meanwhile on the evening of 21 July, a workman
working at the Southall office was instructed by Miss
Asghar
to change the
locks. On the same evening, another female employee of the firm spoke to the
Claimant by telephone and teased him about the sexual harassment allegation
saying, “I can’t trust you, you might sexually harass me”.
6.
The next day, another employee of the firm (Miss Noormohammed), who was
working on reception, was told by Farhan Asghar
that the Claimant no longer
worked for the Respondent as he had assaulted Zahra. Miss Noormohammed was
told not to let the Claimant into the practice as he was no longer an employee
and that if he wanted to see Mr
Asghar
he would have to wait like any other
client. Also on 22 July 2014 Mr
Asghar
called the Claimant’s brother in and
told him that the Claimant had sexually harassed Zahra. Mr Ahmed related that
conversation to the Claimant the same day. That evening, at a meeting in the
office involving Mr
Asghar’s
family and Miss Kadri, Mr
Asghar
said that the
locks of the office had been changed because he did not want the Claimant to
come back as a result of the allegation of sexual harassment by Zahra. As a
matter of fact, the ET was satisfied that there had been no sexual abuse or
harassment on Zahra
Asghar
by the Claimant; indeed it found that she had given
her father an entirely fabricated account.
7.
On 24 July, Miss Zahra Asghar
told the employee then covering the
reception and switchboard (Mr Azam) that he should forward all calls for the
Claimant to herself, her brother or her father as the Claimant was no longer
working for the Respondent. That evening, Mr
Asghar
emailed the Claimant
referring to the situation between the Claimant and Zahra and saying he needed
to investigate and would want to meet with the Claimant when he was next in the
office. The Claimant at this point was signed off work on sick leave.
8.
On Friday 25 July, the Claimant attended his mosque for Friday prayers
and was seen there by Farhan and his brother. The brothers took photos of the
Claimant, apparently thinking this was evidence that he was not genuinely sick.
The ET dismissed that suggestion, noting that the Claimant was a devout Muslim
who would find attendance at the mosque supportive. In any event, on 28 July,
the Claimant emailed Mr Asghar
complaining about his sons taking the photos. On
31 July, he sent in a sick note.
9.
Thereafter there were further communications between the Claimant and Mr
Asghar,
with the latter saying he would not be able to comment on what the
Claimant had said until he had been able to investigate matters and asking the
Claimant to telephone in if he was unable to come into the office in person.
The Claimant responded on 6 August saying he would answer Mr
Asghar
when he was
well but meanwhile further requested payment of sick pay due to him. On 12
August, the Claimant again emailed the Respondent a sick note and sent Mr
Asghar
a message denying Zahra’s account of events on 21 July and pointing out
Mr
Asghar
had changed the locks and told the Claimant’s brother of the
allegations, which had indicated that he had accepted Zahra’s story and did not
want the Claimant back; he also again referred to the outstanding sums due to
him. Mr
Asghar
responded on 14 August, disagreeing with the
Claimant’s perspective on events and saying the only reason the locks had been
changed was due to the manner in which the Claimant had left (something the ET
found was not the case); he again sought to have a discussion with the Claimant
to resolve matters. The Claimant remained away from the office but continued
to send in sick notes and the Respondent, for its part, made
various
payments
to the Claimant for July and August.
10.
On 5 October 2014, Mr Asghar
emailed the Claimant pointing out he had
not been in the office or made contact for two months and requested he call
in. He emailed again on 7 October, observing that the Claimant’s sick note had
expired so he was absent without leave. The Claimant responded that evening
referring to having received legal advice about how he had been treated - about
the changing of the locks and the photos taken of him in the mosque as well as
the allegations by Zahra - and concluded: “Changing the lock was the last
straw in the series of bullying and
victimisation
and harassment that I have
been subjected to during the time I have been working for you”. He claimed
that he had been constructively dismissed.
11.
On the Claimant’s subsequent claim of unfair dismissal, his primary case
was put on the basis that he had been the subject of a direct dismissal, on 21
July 2014. The ET rejected that suggestion, finding there had been no direct
dismissal. As for the possibility of a constructive unfair dismissal - the
Claimant’s alternative case - the ET observed that the case in this regard had
been put in similar terms to the Claimant’s resignation email, such that the
changing of the lock had been relied on as the last straw; a way of putting the
case that would exclude various
events identified in the list of issues that
had been relied on as breaches but which had occurred after 23 July (which is
when ET found the Claimant had learned of the lock change).
12. The ET concluded that the Respondent had committed repudiatory breaches of the Claimant’s contract in:
“11.2.1. the respondent arranging for Masood Ahmed to inform the claimant that he had sexually abused Zahra, compounded by the fact that the alleged words used were not communicated to him. It was further compounded by Sheraz Chowdhry a senior solicitor in the respondent, whose telephone conversation with the claimant at about 8pm on the 21 July 2014 confirmed the allegation and there was no retraction by the respondent when it became clear to the respondent that the accusation was false;
11.2.2. By the photographing of the claimant whilst at prayer at
the mosque by two sons of Mr Asghar,
one of whom, Farhan, was an employee of
the respondent, with no apology or retraction for their actions once known to
the respondent, thereby making the claimant come to the inevitable conclusion
that it had been carried out on the instructions of the respondent and
11.2.3. the e-mail sent by Mr Asghar
dated 14 August 2014 to the
claimant stating that the only reason why the lock was changed was due to the
manner in which the claimant had left the office. The respondent (through Miss
Kadri) knew the reason why the claimant had left the office was because of
advice to that effect from Miss Kadri.”
13. Whilst the ET considered that each of these matters entitled the Claimant to treat himself as constructively unfairly dismissed and that taken together they amounted to a clear fundamental breach of contract, it went on to express its conclusion, in the alternative, that the matters relied on by the Claimant as recorded in the list of issues cumulatively amounted to a breach of the implied term of trust and confidence. The final straw being the Respondent’s email of 14 August 2014 (see the ET’s conclusion at paragraph 11.4).
14. The matters identified in the list of issues had earlier been set out by the ET at paragraph 3.1 of its Reasons as follows:
“3.1. The claimant alleges the following breaches by the respondent:
On Monday 21 July 2014.
3.1.1. Disposal of the claimant’s desk.
3.1.2. A statement from Ms Zahra
Asghar
as to the consequences of his lateness;
3.1.3. The changing of the locks to the office.
3.1.4. Miss Zahra Asghar’s
allegations
against the claimant of sexual harassment;
On Tuesday 22 July 2014
3.1.5. By Mr Mohammad Asghar
stating
the claimant had abused his daughter.
On Friday 25 July 2014
3.1.6. By Mr Asghar’s
two sons
attending the Mosque and photographing the claimant during prayer, and
3.1.7. The respondent failing to investigate fairly the accusations against the claimant.”
15. In the further alternative, the ET considered the position should it be found that the final straw was when the Claimant heard of the changing of the lock on 23 July 2014. In that event, it stated it would still have come to the conclusion that the matters set out at paragraph 3.1 cumulatively amounted to a breach of the implied term of trust and confidence (see its Reasons at paragraph 11.5).
16. Having so found, the ET turned to the question whether the Claimant had affirmed the contract notwithstanding this breach. It held he had not. Its reasoning being as follows:
“12.1. Where an employee is off sick what matters is whether, in all circumstances, the employee’s conduct has shown an intention to continue in employment rather than resign. Where a long standing employee has to consider giving up the job which provides his income, is his family’s sole support and is a source of status to him in his community it is not to be considered as surprising if he takes some time to decide on a dramatic life change in leaving his only employment in this country after 13 years. An innocent employee faced with a repudiatory breach is not to be taken to affirm the contract of employment merely by requiring the payment of sick pay for a limited period while protesting about the position that he finds himself in.
12.2. The claimant provided sick notes for the period Tuesday 26 August 2014 (the previous day was a bank holiday) until shortly before he resigned. Having considered the legal authorities set out above, the history of the case as set out in the facts found by the tribunal and the personal circumstances of the claimant, I consider that there was no affirmation of the contract by him prior to 7 October 2014 when he resigned.
12.3. The tribunal’s conclusion in respect of affirmation remains the same irrespective of whether the facts as found by the tribunal amounted to a fundamental breach or fundamental breaches of the contract of employment or the breach of the implied term of trust and confidence with a “final straw” occurring either on a date shortly after 21 July 2014 or on receipt of the respondent’s email dated 14 August 2015 [sic].”
The Relevant Legal Principles
17. For an employee to complain of unfair dismissal he or she must first establish that they have been dismissed. By section 95(1)(c) of the Employment Rights Act 1996 it is allowed that this may be shown when the employee terminated the contract of employment in circumstances in which they were entitled to do so by reason of the employer’s conduct - a constructive dismissal.
18.
The reference to the employer’s conduct is to be read as conduct that
amounts to a breach of the employment contract (Western Excavating (ECC)
Ltd v
Sharp [1978] ICR 221 CA). Specifically, an employee seeking to
establish constructive dismissal must show:
(1) A breach of contract, actual or anticipatory, by the employer;
(2) That is sufficiently important to justify the employee resigning is the last in a series of incidents which would justify his leaving (the last straw);
(3) That they left in response to the breach and not for some other unconnected reason; and
(4)
That they did not delay too long in terminating the contract in response
to the employer’s breach, otherwise they may be deemed to have waived the
breach and agreed to effectively vary
the contract.
19.
Whether an employer’s conduct amounts to a fundamental breach of contract
justifying resignation is essentially a question of fact and it is not for an
appellate Court to seek to substitute its view
for that of the ET in this
regard (see Woods
v
W M Car Services (Peterborough) Ltd [1982] IRLR
413 CA and Pedersen
v
Mayor & Burgesses of the London Borough of
Camden [1981] IRLR 173 CA).
20.
As to whether an employee should be taken to have affirmed the contract,
notwithstanding a fundamental breach, guidance was provided by the EAT in the
case of W E Cox Toner (International) Ltd v
Crook [1981] ICR 823,
Browne-Wilkinson J (as he then was) presiding. In particular:
“It is accepted by both sides, and we think rightly, that the
general principles of the law of contract apply to this case, subject to such
modifications as are appropriate to take account of the factors which
distinguish contracts of employment from other contracts. Although we were not
referred to cases outside the field of employment law, our own researches have
led us to the view
that the general principles applicable to a repudiation of
contract are as follows. If one party (“the guilty party”) commits a
repudiatory breach of the contract, the other party (“the innocent party”) can
choose one of two courses: he can affirm the contract and insist on its further
performance or he can accept the repudiation, in which case the contract is at
an end. The innocent party must at some stage elect between these two possible
courses: if he once affirms the contract, his right to accept the repudiation
is at an end. But he is not bound to elect within a reasonable or any other
time. Mere delay by itself (unaccompanied by any express or implied
affirmation of the contract) does not constitute affirmation of the contract;
but if it is prolonged it may be evidence of an implied affirmation: Allen
v
Robles [1969] 1 WLR 1193. Affirmation of the contract can be implied.
Thus, if the innocent party calls on the guilty party for further performance
of the contract, he will normally be taken to have affirmed the contract since
his conduct is only consistent with the continued existence of the contractual
obligation. Moreover, if the innocent party himself does acts which are only
consistent with the continued existence of the contract, such acts will
normally show affirmation of the contract. However, if the innocent party
further performs the contract to a limited extent but at the same time makes it
clear that he is reserving his rights to accept the repudiation or is only
continuing so as to allow the guilty party to remedy the breach, such further
performance does not prejudice his right subsequently to accept the
repudiation: Farnworth Finance Facilities Ltd
v
Attryde [1970] 1 WLR
1053.
It is against this background that one has to read the short summary of the law given by Lord Denning MR in the Western Excavating case [1978] ICR 221. The passage, at p.226:
“Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.”
is not, and was not intended to be, a comprehensive statement of
the whole law. As it seems to us, Lord Denning MR was referring to an obvious
difference between a contract of employment and most other contracts. An
employee faced with a repudiation by his employer is in a very
difficult
position. If he goes to work the next day, he will himself be doing an act
which, in one sense, is only consistent with the continued existence of the
contract, i.e. he might be said to be affirming the contract. Certainly, when
he accepts his next pay packet (i.e., further performance of the contract by
the guilty party) the risk of being held to affirm the contract is
very
great:
see Saunders
v
Paladin Coachworks Ltd [1967] 3 ITR 51. Therefore, if
the ordinary principles of contract law were to apply to a contract of
employment, delay might be
very
serious, not in its own right but because any
delay normally involves further performance of the contract by both parties.
It is not the delay which may be fatal but what happens during the period of
the delay: see Bashir
v
Brillo Manufacturing Co [1979] IRLR 295.
Although we were not referred to the case, we think the remarks
of Lord Denning MR in the Western Excavating case are a reflection of
the earlier decision of the Court of Appeal in Marriott v
Oxford and
District Co-operative Society Ltd (No. 2) [1970] 1 QB 186. In that case,
the employer repudiated the contract by seeking to change the status of the
employee and to reduce his wages. The employee protested at this conduct but
continued to work and receive payment at the reduced rate of pay for a further
month, during which he was looking for other employment. The Court of Appeal
(of which Lord Denning MR was a member) held that he had not thereby lost his
right to claim that he was dismissed. In the Western Excavating case
Lord Denning MR explains, at p.227, that the case would now be treated as one
of constructive dismissal. This decision to our mind establishes that,
provided the employee makes clear his objection to what is being done, he is
not to be taken to have affirmed the contract by continuing to work and draw
pay for a limited period of time, even if his purpose is merely to enable him
to find another job.” (Page 828E-829H)
21.
The question of the approach to the issue of affirmation of a breach of
contract in the employment context was revisited by the EAT, Langstaff J (then
President) presiding, in the case of Chindove v
William Morrisons
Supermarket plc UKEAT/0201/13. In that case the EAT considered the
proposition that passage of time might itself be sufficient for the employee to
lose any right to resign:
“25. This may have been interpreted as meaning that the passage of time in itself is sufficient for the employee to lose any right to resign. If so, the question might arise what length of time is sufficient? The lay members tell me that there may be an idea in circulation that four weeks is the watershed date. We wish to emphasise that the matter is not one of time in isolation. The principle is whether the employee has demonstrated that he has made the choice. He will do so by conduct; generally by continuing to work in the job from which he need not, if he accepted the employer’s repudiation as discharging him from his obligations, have had to do.
26. He may affirm a continuation of the contract in other ways:
by what he says, by what he does, by communications which show that he intends
the contract to continue. But the issue is essentially one of conduct and not
of time. The reference to time is because if, in the usual case, the employee
is at work, then by continuing to work for a time longer than the time within
which he might reasonably be expected to exercise his right, he is
demonstrating by his conduct that he does not wish to do so. But there is no
automatic time; all depends upon the context. Part of that context is the
employee’s position. As Jacob LJ observed in the case of Buckland v
Bournemouth University Higher Education Corporation [2010] EWCA Civ 121,
deciding to resign is for many, if not most, employees a serious matter. It
will require them to give up a job which may provide them with their income,
their families with support, and be a source of status to him in his
community. His mortgage, his regular expenses, may depend upon it and his
economic opportunities for work elsewhere may be slim. There may, on the other
hand, be employees who are far less constrained, people who can quite easily
obtain employment elsewhere, to whom those considerations do not apply with the
same force. It would be entirely unsurprising if the first took much longer to
decide on such a dramatic life change as leaving employment which had been
occupied for some eight or nine or ten years than it would be in the latter case,
particularly if the employment were of much shorter duration. In other words,
it all depends upon the context and not upon any strict time test.
27. An important part of the context is whether the employee was
actually at work, so that it could be concluded that he was honouring his
contract and continuing to do so in a way which was inconsistent with his
deciding to go. Where an employee is sick and not working, that observation
has nothing like the same force. We are told, and it is consistent with our
papers, that the Claimant here was off sick. Six weeks for a Warehouse
Operative, who had worked for eight or nine years in a steady job for a large
company, is a very
short time in which to infer from his conduct that he had
decided not to exercise his right to go. All the more so, since there seems,
on the short findings of fact of this Tribunal, that there was no reason other
than the employer’s conduct towards him for his choosing to go. We simply
cannot say whether this Tribunal had in mind these necessary factors. It did
not set out the law. It did not set out the facts which caused it to apply the
law. It did not honour rule 30(6). It did not deal with the detailed
statement which the Claimant produced in respect of his constructive dismissal
though this may be unduly critical of the Tribunal’s judgment. The reference
to time looks as though the Tribunal simply thought that the passage of time
was sufficient in itself. The decision is, effectively, unreasoned. Mr Robinson
said what he could, as best he could, but acknowledged the great difficulties
that lay in his way. We have no doubt that the appeal on this ground, too, has
to be upheld.”
22.
Where an employee delays resigning and is away from the workplace on
sick leave, in some cases an ET might find that their conduct in claiming sick
pay whilst sending in the requisite sick certificates is simply neutral (see El-Hoshi
v
Pizza Express Restaurants Ltd UKEAT/0857/03), in others that it
amounts to an affirmation of the contract of employment (see Fereday
v
South Staffordshire NHS Primary Care Trust UKEAT/0513/10). The issue will
always be one for the ET and will need to be determined on the particular facts
and context of the case (see Hadji
v
St Luke’s Plymouth
UKEAT/0095/12, HHJ Burke QC presiding). As explained by HHJ Richardson in Mari
v
Reuters Ltd UKEAT/0539/13:
“49. … The significance to be afforded to the acceptance of sick
pay will depend on the circumstances, which may vary
infinitely. At one
extreme an employee may be so seriously ill that it would be unjust and
unrealistic to hold that acceptance of sick pay amounted to or contributed to
affirmation of the contract. At the other extreme an employee may continue to
claim and accept sick pay when better or
virtually
better and when seeking to
exercise other contractual rights. What can safely be said is that an innocent
employee faced with a repudiatory breach is not to be taken to have affirmed
the contract merely by continuing to draw sick pay for a limited period while
protesting about the position: this follows from Cox Toner, which I have
already quoted, for a sick employee can hardly be in any worse position than an
employee who continues to work for a limited period.”
Submissions
The Respondent’s Case
23.
In respect of the first ground of appeal, Ms Mallick observes that the
last straw relied on in the Claimant’s schedule identified the date of the last
of the acts relied on as being 24 July. At the Preliminary Hearing when the
list of issues was clarified it was allowed that the Claimant could rely on the
matters set out at paragraph 3.1 (taking the period in question to 25 July). As
Langstaff J had recognised in Chindove, the identification of the
list of issues in the ET’s Judgment was an important matter (see paragraphs 21
to 23 of Chindove). Here, however, at paragraph 11.2.3 the ET
had focused on the email of Mr Asghar
of 14 August 2014 (selectively quoting
from that email). Although the ET had then purported to find in the
alternative that there had been a fundamental breach sufficient to establish
the Claimant’s right to leave and claim constructive dismissal, in stating its
alternative conclusion at paragraph 11.5 the ET did not adequately explain its
reasoning; nor could the earlier reasoning at paragraphs 11.2.1, 11.2.3 and
11.4 rescue it, as those findings were tainted by the inclusion of the ET’s
reliance on the email of 14 August.
24.
Turning then to the second ground of appeal and the question whether the
ET erred in its conclusions on affirmation, the Respondent contended that the ET
had failed to identify and have regard to the actual period of delay,
apparently continuing to base its reasoning on its erroneous finding that the
last straw was on 14 August and failing to have regard to the absence of any
explanation by the Claimant for such delay. The Claimant’s last day in the
office had been 21 July and, although he was still in communication with the
Respondent, he did not resign until 7 October. The Respondent was not simply
seeking to rely on delay - although a prolonged delay could itself amount to
affirmation - here the Claimant had numerous exchanges with the Respondent in
which he showed that he was treating himself as still employed and had failed (unlike
the employee in Chindove) to explain why he had not resigned
earlier in response to the breaches of which he complained. Moreover, and now
also bringing in the third ground of appeal, the ET had failed to have regard
to the overwhelming evidence that the Claimant and the Respondent were treating
the contract of employment as subsisting by, in particular, the Claimant
demanding and receiving contractual remuneration and statutory sick pay and
also the Claimant being invited to, and himself calling for, an investigation
into the events of 21 July 2014. More specifically, if an employee was to be
permitted to rely on sickness as the answer to affirmation then the ET would
have needed to make a finding as to the nature of the sickness in question (see
Mahri v
Reuters), which this ET had not and there was simply no
evidence to support the approach the ET had taken at paragraph 12.1.
The Claimant’s Case
25. On behalf of the Claimant it was noted that the email of 14 August had confirmed that the locks had been changed: it was the written confirmation of that which the Claimant had earlier learned of orally. That said it was accepted that the Claimant had put his case as relying on the changing of the lock as the last straw and that he had, strictly speaking, learned of that during the week ending 25 July. In any event, if paragraph 11.2.3 contaminated the ET’s conclusion then the ET recovered itself at paragraph 11.5.
26. Turning to the second ground as the authorities made clear, this was a highly fact sensitive issue; the ET had referred back to its earlier findings of fact and had explained why, in the particular circumstances, it reached the conclusion it did. The ET should not be taken to have founded its decision on the email of 14 August: it expressly went on to address that issue at paragraph 12.3 and, having correctly directed itself as to the law, its decision should not be the subject of challenge and appellate interference simply because it had poorly expressed itself in the preceding paragraph. As to the evidence to support the findings at paragraph 12.1, that had been provided through the Claimant’s witness statement and was grounded in the ET’s earlier permissible findings of fact which dealt with the fact that his employment with the Respondent was the Claimant’s only work since he had come to the UK and also with the way in which the Claimant saw his role with the Respondent, his need to support his family and so on. It was further wrong to say the Claimant had been actively seeking an investigation: that was not what his email communications with the Respondent showed.
Discussion and Conclusions
27.
The matters relied on by the Claimant as the breaches of contract by the
Respondent, which had led him to resign, were clarified and set out in a list
of issues, after an earlier Preliminary Hearing on 20 July 2015. Specifically,
he had stated that the last straw for him had been his learning about the
changing of the lock, shortly after 21 July 2014. It appears that the ET at
the Preliminary Hearing had interpreted that - fairly generously for the
Claimant - as allowing him to rely on matters up to 25 July 2014, the day on
which Mr Asghar’s
sons had photographed him during Friday prayers. In its Reserved
Judgment on the Full Merits Hearing, however, the ET went still further and
apparently extended the incidents in issue to include the Respondent’s email of
14 August. It was wrong so to do. Mr Amunwa observes that the email of 14
August was not wholly unrelated to how the Claimant’s case had been put: it was
the written confirmation that the locks had been changed and that was the last straw
relied on by the Claimant. He also accepts, however, that the Claimant had not
specifically relied on the written confirmation; his case had been put on the
basis that it was simply knowing of the lock change that was the last straw and
that is how it had been recorded in the list of issues. Having considered how
the Claimant’s case had been put at each stage, I am satisfied that how the ET
approached matters at paragraph 11.2.3 went beyond that case. The Respondent had
been entitled to expect that the ET would determine the case in accordance with
the issues identified at the earlier Preliminary Hearing, limiting the matters
of which complaint was made to the week ending 25 July 2014; that was the case
it had fairly understood it had to meet. The ET erred by then adding to the
list of incidents that might be relied on as breaches of contract on the
Respondent’s part.
28. That said, the ET recognised the potential criticism that could be made of its approach in this regard and went on to consider the alternative possibility, stating that it would have reached the same conclusion even if the email of 14 August was entirely stripped out of the factual matrix. On the breach of contract point, ultimately I accept the Claimant’s submission that this provides a complete answer to the first ground of appeal.
29. The point cannot, however, be left there as the ET then seems to have proceeded on the same basis - that is, that the Claimant was responding to a series of acts culminating in the email of 14 August as the last straw - when turning to consider the issue of affirmation. The ET’s error in this respect may have been avoided by its alternative findings on the identification of the relevant breaches of contract but the problem arises again when considering its reasoning on the question whether the Claimant had affirmed the contract notwithstanding those breaches.
30.
That this was the approach adopted by the ET when determining the
affirmation issue is made apparent at paragraph 12.2 of its Reasons. At
paragraph 12.2, the ET references the sick notes provided by the Claimant but
only those post-dating the 14 August email. True it is that the ET then goes
on - at paragraph 12.3 - to say that its conclusion on affirmation would be the
same irrespective of whether the final straw occurred on a date shortly after
21 July 2014 or on receipt of the Respondent’s email of 14 August 2014, but I
accept the Respondent’s point in this regard that it is then difficult to see
how the ET reached its conclusion as it simply fails to engage with the various
interactions between the Claimant and Mr
Asghar,
prior to 14 August. Those
interactions included, as the ET had itself found, the Claimant’s indication on
6 August that he would engage with Mr
Asghar’s
questions when he was well and
his continued sending in of sick notes and requests to be paid. Those were all
acts that could be taken to indicate his continued perception of himself as
still remaining with the Respondent’s employment, notwithstanding the events of
21 July to 25 July 2014.
31. I do not say that the evidence and ET’s findings of fact in this case would mean that it could only have concluded that the Claimant had affirmed the contract; it was a matter of assessment that could have gone either way. I also agree with the Claimant that the ET was entitled to take into account the matter it set out at paragraph 12.1 and that the evidential trail for the context it there records was provided in the evidence before it and from its findings of fact. The difficulty is that the ET needed to demonstrate that it had reached its findings on this question having regard to the full chronology of the Claimant’s interactions with the Respondent, from the date of the last straw he had relied on and not some later date; it needed to show it had considered those matters relied on by the Claimant as explaining his apparent delay in resigning in the context of the full delay, not some lesser period starting only from 14 August. Although the ET has suggested that it has done this in its either/or conclusion at paragraph 12.3, I cannot see that this does more than pay lip-service to the point; it does not begin to provide adequate explanation of the ET’s reasoning on the question of delay for the entire period in issue, in particular given its earlier focus on events post-dating 14 August and its apparent failure at paragraph 12 to reference the earlier chronology.
32. Before reaching my final conclusion on the appeal, however, I should, for completeness, address the third ground. On this point, contrary to the way the Respondent’s case has been put, I do not consider that an ET is always bound to address the particular reason for the sick leave and whether the sickness itself explains why the employee delayed. In some cases that will be an important part of the factual matrix; in others the point will remain rather more neutral. In the present case, it is clear that the real issue raised by the appeal is as to whether the ET’s reasoning demonstrated engagement with the Claimant’s interactions with the Respondent and what that said in terms of the question of affirmation of the contract of employment for the entirety of the period in issue; that is from the week of 21 July and not simply from 14 August. The particular nature of the Claimant’s health issues might have been seen as part of the explanation, taking into account all the relevant circumstances, but it would be for the ET to explain how this was so.
33. In this case my conclusion is that the decision is rendered unsafe in the sense that it is impossible to be certain that the ET in this case did have regard to all the relevant factors, which certainly included the full period of the delay (starting with the final straw relied on as identified by the Claimant) and which may also have included the nature of the Claimant’s ill-health. It is for that reason that I allow this appeal.
34. As a result of my conclusion on the appeal, I am bound to remit this matter to the ET on the question of affirmation, which is to be reconsidered in the light of my Judgment.
35.
I understand from the parties that the Employment Judge has since
retired and that might be a complete answer as to the nature of the remission.
Even if the Employment Judge were able to return from retirement, however, Ms
Mallick says that the case should be remitted to a new Judge, who would not
have reached any fixed view
about the email of 14 August and would come to
matters with a fresh eye. She says there would be further evidence on the
reasons for the Claimant’s sick leave in any event and there is no reason why
it should not be heard by a different Employment Judge. For the Claimant it is
suggested that it would be preferable to go back to the same Employment Judge
if at all possible; that Judge had made the other findings and it would be both
proportionate and preferable in the interests of justice it the case returned
to the same Tribunal.
36.
Having considered all the factors in Sinclair Roche & Temperley
v
Heard [2004] IRLR 763 EAT, I agree that, if at all possible, it would
be preferable for this matter to return to the same Employment Judge. That Judge
has made extensive findings of fact and reached conclusions on all other
matters, which have either not been challenged or have been upheld on appeal in
any event. There is one issue in respect of the conclusion on affirmation
where I have found the reasoning unsatisfactory and, therefore, the conclusion
reached unsafe, but that does not cast any question of doubt on the underlying
conclusions and findings of fact which have not been criticised. Furthermore I
have no doubt as to this Employment Judge’s ability to come to matters
professionally and to cast a fresh eye on the question of affirmation in the
light of my Judgment. The same Judge would also be best placed to form a
view
as to whether it was necessary to hear any further evidence (I suspect it might
not be but would not wish to bind the ET on the remitted hearing) because he
would have already heard the Claimant’s evidence and (with reference to the
notes from the original hearing) would no doubt recall that without too much
difficulty. So, for all those reasons, my preference would be that this matter
is heard by the same Employment Judge. If, however, that is not possible because
of the Employment Judge’s retirement then, by default, it will be heard by a
different Judge and the assignment will be a matter for the Regional Employment
Judge.