Ogilvie Construction Ltd v Brown

Whether an employee has resigned for the purposes of constructive dismissal must be assessed in the light of all the surrounding circumstances. Where a notice of resignation is unambiguous, its recipient may ordinarily treat it as a conscious and rational decision and accept it according to its terms. The employee’s uncommunicated or private intention is not determinative. The decisive question is how the notice would be understood by a reasonable recipient.

An appellate perversity challenge succeeds only on an overwhelming case that no reasonable tribunal, properly applying the law to the evidence, could have reached the decision under challenge.

The claimant had worked for the employer for about 28 years and had progressed to General Foreman. After being asked to undertake a Site Manager role, he worked excessive hours and repeatedly raised concerns about his workload. He sent an email headed “4 weeks notice”, which the employer accepted as a resignation from employment.

The Employment Tribunal held that the employer’s conduct amounted to a repudiatory breach of contract and a breach of mutual trust and confidence. It found that the email was an unambiguous resignation and that the claimant had been constructively unfairly dismissed. The employer appealed only the finding that the claimant had resigned, contending that the finding was perverse because he intended merely to leave the promoted role.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant had resigned from his employment and was therefore constructively unfairly dismissed.

2. The unchallenged finding that the employer had required excessive hours, despite the claimant’s complaints, established a repudiatory breach. The claimant was accordingly entitled to terminate his employment under Employment Rights Act 1996, section 95.

3. The statutory question was whether the claimant had in fact terminated his contract. That question required consideration of all the surrounding circumstances, not the email in isolation. The Tribunal was entitled to prefer the manager’s recollection that the claimant was happy to move on. That account was supported by the employer’s prompt acceptance of the resignation and the claimant’s failure to correct it.

4. There was also an evidential basis for the Tribunal’s inference that the claimant’s lack of protest was significant. His registration with an agency, pursuit of alternative work, subsequent employment and approach to the grievance meeting were all consistent with resignation.

5. The email was capable of being, and was reasonably found to be, an unambiguous notice of resignation. Where a notice is unambiguous, the recipient may assume that the decision behind it is conscious and rational. The employee’s stated intention is not decisive, even where wording is less clear; the real question is how a reasonable recipient would understand the notice. The Tribunal cross-checked its reading against the surrounding circumstances and found no inconsistency. Its conclusion was rational and was not perverse.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s finding of constructive unfair dismissal was upheld.
• Employment Tribunal: By a judgment dated 1 December 2015, held that the claimant had been constructively unfairly dismissed.