John-Charles v Weir & Anor

An appeal from an employment tribunal lies on a question of law, not merely because a party disputes factual findings. A case-management decision refusing a late attempt to introduce a new issue is ordinarily within the tribunal’s discretion and is not an appealable error of law. In constructive dismissal, an employee who accepts a return to work after an alleged repudiatory breach may waive that breach and affirm the contract. A later resignation cannot rely on the waived breach. Part 1 of the Employment Rights Act 1996 requires either the job title or a brief description of the work, rather than creating a separate statutory right to a job description.

A former ICT employee brought 45 race-discrimination allegations and a claim for unfair dismissal after refusing to return to work and communicating that he regarded his employment as terminated. The Leeds Employment Tribunal rejected all claims, finding that he had resigned and had affirmed the contract after any earlier breach. The Employment Appeal Tribunal dismissed his appeal under UKEAT/0119/09/JOJ. He renewed an application for permission to appeal, alleging errors concerning constructive dismissal, a job description, statutory rights, procedural case management and the tribunal’s factual findings. The central question was whether any ground disclosed an arguable error of law.

Disposition. The renewed application for permission to appeal was refused on all grounds. The time for filing the appellant’s notice was extended in the circumstances, but no permission to appeal was granted.

1. Scope of appellate review. The Court of Appeal had to focus primarily on the Employment Tribunal’s decision, because the appeal to the Employment Appeal Tribunal, and any further appeal, lay only for an error of law. Challenges to factual findings, credibility assessments and evidential evaluation could not be reopened merely by describing the findings as perverse. There was evidence capable of supporting the tribunal’s conclusions.
2. Late new case. The proposed argument based on the 2005 memorandum had not formed part of the case pleaded or presented to the Employment Tribunal. The tribunal’s refusal, at the resumed hearing, to enlarge an already extensive list of issues was a case-management decision within its discretion. It disclosed no error of law and would not be second-guessed on appeal.
3. Constructive dismissal. The tribunal was entitled to find that the applicant’s communications amounted to a clear and unequivocal resignation, but not a resignation in response to repudiatory conduct. The school was entitled to stop pay while he refused to return to work and continued to invite him to discuss the arrangements for his return. The tribunal had found that no later conduct amounted to repudiation.
4. Waiver and affirmation. Although the tribunal viewed the three-year suspension as potentially repudiatory if accepted at the time, the applicant remained employed, awaited the disciplinary outcome and adopted a positive approach to a phased return after the suspension was lifted. That conduct waived any prior breach and affirmed the contract. He could not later rely on the suspension as the basis for constructive dismissal.
5. Statutory rights. Part 1 of the Employment Rights Act 1996 did not confer a separate statutory right to a job description. The asserted automatic-unfair-dismissal ground was in any event inconsistent with the findings that there had been no actual dismissal and no repudiatory breach.

1. Court of Appeal (Civil Division): Renewed application for permission to appeal refused on all grounds.
2. Employment Appeal Tribunal: Appeal dismissed by order dated 29 July 2009 under UKEAT/0119/09/JOJ.
3. Leeds Employment Tribunal: Claims for race discrimination and unfair dismissal dismissed; reasons sent to the parties on 20 October 2008.