Chindove v Morrison Supermarkets Plc, Court of Appeal - United Kingdom Employment Appeal Tribunal, October 05, 2017, [2017] UKEAT 0076_17_0510

Resolution Date:October 05, 2017
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Chindove v Morrison Supermarkets Plc
 
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Copyright 2017

Appeal No. UKEAT/0076/17/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 5 October 2017

Before

HIS HONOUR JUDGE MARTYN BARKLEM

(SITTING ALONE)

MR M CHINDOVE APPELLANT

MORRISON SUPERMARKETS PLC RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0076/17/JOJ

APPEARANCES

UKEAT/0076/17/JOJ

SUMMARY

UNFAIR DISMISSAL - Constructive dismissal

An Employment Tribunal failed to identify the reasons for its finding that the Appellant (the Claimant below) had affirmed his contract of employment in circumstances in which he was on sick leave, submitting sick notes and receiving sickness pay, and resigned six weeks after the date of the repudiatory breach. The matter had already been remitted to the Employment Tribunal by the Employment Appeal Tribunal following an earlier decision which had failed to give adequate reasons.

UKEAT/0076/17/JOJ

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HIS HONOUR JUDGE MARTYN BARKLEM

  1. This is the Full Hearing of an appeal which was permitted to go ahead by an Order of His Honour Judge Peter Clark at a Rule 3(10) Hearing, which took place on 22 March 2017. I shall refer to the parties as the Claimant and the Respondent, as they were below.

  2. This case has a lengthy history. I shall summarise it only to the extent necessary to deal with a very limited point which remains live following the Order made by His Honour Judge Clark at that Rule 3(10) Hearing.

  3. The Claimant has hitherto been represented by a lay representative. At the Rule 3(10) Hearing he was represented by Mr Oliver Isaacs of counsel under the aegis of the ELAAS Scheme. To his great credit, Mr Isaacs has represented the Claimant here today pro bono and I am grateful to him for his careful and succinct submissions. The Respondent is represented by Mr Philip Crowe, a partner in the firm of Shoosmiths who has had conduct of this case from the outset. As such, he has a considerable knowledge of aspects of the case and its chronology which do not appear from the papers, and which proved of great use today. His skeleton arguments and oral submissions were also succinct and I express my thanks to him too.

  4. The Claimant was employed by Morrison's as a warehouse operative from 2003 until his resignation in October 2011. He is black, the relevance of that being that he brought a claim alleging that he had been discriminated against and harassed on grounds of race by a fellow employee in 2010 and again in 2011. An Employment Tribunal in Liverpool chaired by Employment Judge Reed found in late 2012 that the acts complained of amounted to a repudiatory breach of contract by the Respondent. That finding has never been challenged. The first ET also found that the Claimant had affirmed the contract, such that he had not been constructively dismissed as he maintained.

  5. A division of the Employment Appeal Tribunal presided over by Langstaff J (then President) held on 26 March 2014 that the first Tribunal had failed properly to deal with the affirmation point. There was a second point which was remitted, dealing with a question whether there had been a continuing act of discrimination such that the discrimination had been lodged in time.

  6. A second Tribunal presided over by Employment Judge Buzzard, who sat with lay members, heard the matters which had been remitted by the EAT at a series of hearings which began in November 2014 but concluded only in March 2016. A brief Judgment was sent to the parties on 31 March 2016, dismissing both claims. Full Written Reasons were sent on 31 May 2016. I shall refer to those Reasons as those of the ``Buzzard Tribunal''.

  7. In remitting the case to the ET, the EAT was critical of the lack of reasoning given by the first Tribunal in respect of both its relevant findings. At paragraphs 21 to 27, it set out the reasons for its criticism and summarised the state of the law in relation to affirmation of contract, specifically in the context of an employment relationship:

    ``21. A Tribunal is both advised and obliged as to the way in which it deals with its judgment. A Tribunal Judge is advised by guidance of the President of Employment Tribunals that the judgment should set out the issues between the parties. This judgment did not. It is a particular pity that the guidance was not followed here. The ET1 required focus. One of the helpful aspects of setting out a list of issues at the start is that the agreement of both parties, who may very well be lay people, can be secured at the start. They then know where they are, and, from our perspective, should the matter ever subsequently come to us, we know where they were and where they were not. Mr Robinson observed that, in his experience, it was almost inevitable that a Tribunal would set out the issues at the outset. We agree that that coincides with our own. The President's guidance is well recognised. It is a pity that it was not so here. If it had been, we suspect that there would have been set out as an issue whether the act was one which continued until either the date of resignation on 7 or maybe 9 September. If so, the Tribunal would have made the decisions which it simply did not.

  8. Another aspect of that which a Tribunal is obliged to do, by rule 30(6) at the time of this decision, is to set out the necessary facts and also the law which it intends to apply. Rule 30, headed ``Reasons'', includes at (6) as follows:

    ``(6) Written reasons for a judgment shall include the following information...

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