Clutch Auto Centres v Blakemore

An employee who brings claims for unfair dismissal and wrongful dismissal on the pleaded basis that the employer terminated the contract elects to treat the alleged repudiation as accepted. The contract therefore ends on the pleaded effective date of termination. The employee cannot subsequently rely on the same facts to contend that the employment relationship continued.

An Employment Tribunal may explain the consequences of its decision, especially to an unrepresented party. It should not express a view on an unpleaded issue, particularly where that view is legally wrong.

The Claimant alleged that he had been dismissed on 6 November 2012 and brought claims for unfair dismissal, wrongful dismissal, wages and holiday pay. The employer maintained that he had resigned on 18 October 2012.

The Employment Tribunal rejected both alternatives but declared that the Claimant remained employed. The employer appealed against that declaration, contending that both parties had proceeded on the basis that the employment had ended. The central issue was the effect of the Claimant bringing dismissal claims while asserting that the employer had terminated his employment.

1. Appeal allowed. The Employment Tribunal's declaration that the Claimant remained an employee was set aside, and the Claimant's claims were dismissed.

2. The Claimant's pleaded case was that the employer had terminated his employment on 6 November 2012. His claims for unfair dismissal and wrongful dismissal necessarily relied on that asserted termination. By commencing those claims, he elected to accept the alleged repudiatory dismissal. Applying Gunton v Richmond-upon-Thames LBC [1980] IRLR 321 and Société Général, London Branch v Geys [2013] IRLR 122, the contract ended at that election, at the latest on 6 November 2012.

3. The Claimant could not resile from the position on which he had pleaded and pursued his claims in order to assert a continuing contract. His subsequent self-employed work was also inconsistent with continued employment by the employer.

4. It was unnecessary to decide the separate perversity ground. Although a Tribunal may appropriately explain the effect of its decision to a litigant in person, it may not offer an opinion on an issue not raised by the parties, particularly where that opinion is wrong in law.

• Employment Appeal Tribunal: Allowed the employer's appeal and set aside the Employment Tribunal's declaration that the Claimant remained employed.
• Employment Tribunal: By judgment dated 20 May 2013, with written reasons provided on 18 June 2013, rejected both the alleged resignation and the alleged dismissal, and declared that the Claimant remained an employee.