Appeal No.	 EAT/668/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 November 1997

Before
HIS HONOUR JUDGE PETER CLARK
MISS D WHITTINGHAM
MR G H WRIGHT MBE

MR D CARR	APPELLANT

WOOD & MOTT LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MRS G CARR
(Wife)	

	JUDGE PETER CLARK:     This appeal by Mr Carr against a decision of the Stratford Industrial Tribunal sitting on 24 March 1997, in which it dismissed his complaint of unfair constructive dismissal against his former employers, Wood & Mott Ltd, comes before us today on a preliminary hearing to determine whether or not the appeal raises any arguable point or points of law to go forward to a full appeal hearing.  

	Having considered the Notice of Appeal and Skeleton Argument and the oral submissions of Mrs Carr, on behalf of the Appellant, we have concluded that the appeal raises two potentially arguably points of law and, on those two points only, the matter will proceed to a full hearing.

	The first point focuses on paragraph 21 of the Tribunal’s Extended Reasons dated 23 April 1997, and in particular the Tribunal’s critical finding:

“We have had no evidence to suggest that there is a causal link between the resignation and the breach of contract.”

	The point which is advanced by Mrs Carr is that if one looks at the statement, which was read out by her husband and formed part of his evidence, and in particular at pages 8, 9 and 10 of that statement, it is clear that his case was that the letter of 24 January 1995 was the final straw in a series of events which began with the assault on him by Mr Evers on 6 December 1994.

	The question of law which arises is whether or not the Tribunal’s finding that there was no evidence to suggest a causal link between the resignation and the breach of contract, as they found it to be, was a perverse finding.

	The second point relates to the Tribunal’s conclusion that there has been here an affirmation of the contract of employment by the Appellant, in that the breach of contract crystallised in the view of the Tribunal in the letter of 9 December from Mr Wood to Mr Carr, but that no action was taken by the Appellant to resign until his letter of 28 January.

	Mrs Carr relies upon the authority of Bashir v Brillo Manufacturing Co [1979] IRLR 295 for the proposition that since the Appellant was off work sick during the whole of the relevant period, he could not be said to have affirmed the contract and therefore, could not be said to have delayed within the meaning of that expression in the judgment of Lord Denning, MR in Western Excavating v (EEC) Ltd v Sharp [1978] ICR 221.

	In these circumstances, we shall allow the appeal to proceed to a full hearing, limited to argument in relation to those two points.