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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McWilliams v. Regard Partnership [2002] UKEAT 1305_01_2810 (28 October 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1305_01_2810.html Cite as: [2002] UKEAT 1305_1_2810, [2002] UKEAT 1305_01_2810

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APPEARANCES

 

For the Appellant	MISS K NEWTON (of Counsel) Instructed By: Messrs Edwards Abrams Doherty Solicitors 125/131 Picton Road Liverpool L15 4LG
For the Respondent	MISS NICKI STADAMES (Representative)


 


THE HONOURABLE LORD JOHNSTON:

1. This is an appeal at the instance of the employee attacking a decision of the Employment Tribunal which effectively found that she had not been dismissed from her employment, but rather had resigned.
2. The background to the matter appears to relate to a refusal on the part of the employee to carry out the duties which the employer her to perform in relation to what is described as "sleep-in duties". Be that as it may, what happened was that immediately prior to the start of the hearing an issue, or the fundamental issue rather, of dismissal rather than resignation was introduced by the employer inasmuch that they no longer accepted that they had dismissed the employee from her employment.
3. The decision of the Tribunal adopts that position inasmuch that they hold that there was, and I quote from paragraph 4(a):

"Was the applicant dismissed? She was not. When she walked out at the beginning of her evening shift, she did not intend to (and did not in fact) return."

4. Miss Newton, appearing for the Appellant, maintained that this was an wholly inadequate decision against the background of how the case had been prepared and, in any event, did not investigate fundamentally the questions as to whether or not the contract was in fact ended by the formal leaving of the premises by the employee. She was herself repudiating the contract, or was responding to what she regarded as repudiation by the employer. Either way, in our opinion the reason issue in this case is the fairness of whether or not there was a dismissal, rather than whether there was one at all. We say this particularly because the fact that the documents now presented to us, in relation to the appeal procedures, would fly in the face of any suggestion that the employer was accepting at the time that the question of an appeal was being considered that the employee had resigned.
5. We are by no means satisfied that the employee will succeed in this case, but we consider that this Tribunal has gone off the rails in approaching the matter the way it did. Unfortunately, what has to happen is that the whole question has to be reviewed by a fresh Tribunal against a background (and in this respect I do suggest that the employer takes legal advice) of an issue properly focusing the pleadings, as to whether or not there was dismissal or not. If, as Miss Stadames appearing for the employer suggested, there was a real issue as to whether or not there had been some fraudulent conduct on the employee, which led to the termination of the contract, this must be reflected in the pleadings to give due notice to the other side.
6. In these circumstances, for these reasons, we consider this appeal succeeds. We offer no further view as to what the outcome of the case should be, but we will remit it back to a new Tribunal to reconsider the whole issue and hope that the issues in question can be properly focused in the pleadings.