Silicone Altimex Ltd v March

For constructive dismissal, a tribunal must determine whether the employee resigned in response to the repudiatory breach found. An employee who appeals an allegedly unfair dismissal and, without reservation, asks to return to work affirms the contract. The employee cannot then rely on the original unfair disciplinary process as the ground for resignation.

When assessing contributory fault, a tribunal must deal consistently with the employee conduct it has identified as the reason for dismissal. The Employment Appeal Tribunal may not substitute its own factual assessment where material findings are absent. The proper course is remittal unless the result follows from the tribunal’s findings and undisputed facts.

The employer appealed from the decision of Employment Judge Walker, sent to the parties on 6 March 2013. The Employment Judge held that the employee had been constructively unfairly dismissed and reduced compensation by one third for contributory fault.

The Employment Judge found that the conduct of two disciplinary hearings on 28 May 2012 was a repudiatory breach. Following dismissal, the employee appealed and said that he wished to return to work. The employer upheld the appeal and offered reinstatement, but the employee’s solicitors sent an email which appeared to amount to a resignation.

The appeal concerned whether the resignation was caused by the repudiatory breach, whether the employee had affirmed the contract, and whether all relevant conduct had been considered on contribution.

1. Appeal allowed and remitted. The Employment Judge’s findings on constructive dismissal and contributory fault could not stand.

2. A repudiatory breach alone does not establish constructive dismissal. The tribunal had to decide whether the employee resigned in response to the breach found, namely the manner in which the disciplinary hearings had been conducted. It made no finding on the reason for, or date of, the resignation.

3. The employee had appealed against dismissal, expressly sought his job back and was ready to return without reserving his position. In those circumstances, he affirmed the contract in respect of the original disciplinary breach. He could not later rely on that original process as a ground for resignation. The authorities on which the Employment Judge relied were not directly relevant to that issue.

4. The contribution finding was internally inconsistent. The Employment Judge had identified poor attendance, timekeeping, attitude, the Facebook entry and misinformation as the reason for dismissal for the purposes of section 98(1) of the Employment Rights Act. He could not exclude the attendance and Facebook conduct from the contributory-fault assessment merely because that conduct was not itself repudiatory conduct entitling the employee to resign.

5. Although the merits strongly indicated that the claim would fail, factual findings remained outstanding about the resignation, the telephone conversation after the appeal hearing and the solicitors’ email. Applying Jafri v Lincoln College [2014] EWCA Civ 449, the EAT could not make those findings or dismiss the claim itself. The case was remitted to a fresh Employment Tribunal.

• Employment Appeal Tribunal: appeal allowed. The finding of constructive unfair dismissal and the contributory-fault assessment were set aside, and the matter was remitted to a different Employment Tribunal.
• Employment Tribunal, Nottingham: Employment Judge Walker, decision sent on 6 March 2013, held that the employee had been constructively unfairly dismissed and reduced compensation by one third for contributory fault.