Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

Case Ref: 304/03

Claimant: Allan Herbert Fawcett

Respondent: Queens University of Belfast

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that the claimant was not dismissed but resigned his post by agreement with his employer and accordingly the tribunal has no jurisdiction to hear his claim.

Chairman: Miss E McCaffrey

Members: Mr N Wilkinson

Mr J Welsh

Appearances:

The claimant was represented by Mr Michael Potter, Barrister-at-Law, instructed by John McKee and Sons Solicitors.

The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by Rosemary Carson of Queen's University Legal Service.

DECISION

ISSUES

1. This case was listed for hearing in full commencing on the 23^rd of April 2007. However at the outset of the case two preliminary issues were raised.
2. The claimant raised the issue of whether the Chairman should hear the case, given that she had formerly been a lecturer at Queen's University, Belfast.
3. The respondent raised the issue of whether the claimant had in fact resigned his post by applying for early retirement from the University and therefore whether he had in fact not been dismissed. If the tribunal found that he had not been dismissed, it would not have jurisdiction to deal with his claim.
4. On the first issue the claimant's representative pointed out that the claimant had had concerns while employed at Queen's University that there had in effect been a conspiracy against him by staff from various different departments. He made reference to allegations by the claimant in relation to a property transaction which the claimant alleged had been improper and also to the fact that a psychiatrist, who also was employed by Queen's University as a lecturer in the Department of Medicine had made arrangement to detain the claimant under the Mental Health Acts. The claimant's representative indicated that because he was aware that the Chairman had once been employed by Queen's University, he was concerned about a perception of bias and suggested she should not hear this case.
5. The Chairman made it clear to all parties that she had been employed as a part-time lecturer in the Faculty of Law from 1988 to 1991. During that time she had not had involvement with any other faculties within the University, was not acquainted with the claimant or with any of the people he had indicated might be a potential witnesses in his case nor did she have any knowledge of the property transaction to which he referred. As such she did not feel that she was in any way prejudiced in dealing with the case.
6. Mr Potter asked for time to discuss the matter with his client and upon his return indicated that his client wished to withdraw the complaint against the Chairman. This was clarified and he agreed that he had no objection to the Chairman. For the purposes of completeness, the tribunal also wishes to record that the tribunal was of the unanimous view that the Chairman did not have any conflict of interest in relation to this matter.
7. On the second question, the panel heard the submissions of both representatives and were referred to various documents in a booklet of documents prepared for the hearing. No oral evidence was heard on the preliminary issue.
8. The respondent's representative referred the tribunal to documents which were principally memoranda prepared by the respondent. The first of these was a memorandum dated 27^th November 2001 and recorded by Professor DG Walmsley, Dean of the Faculty of Science and Agriculture in which the claimant was employed. That memorandum records as follows:-

"Meeting with Dr Allan Fawcett (Chemistry)

Yesterday I met Dr Fawcett in the company of Professor David Armitage (Pure Maths) at Dr Fawcett's request.

He indicated an interest in taking early retirement next September. His decision is somewhat dependant on the evolution of his domestic situation which he hopes to see clarified over the Christmas period.

One problem he raised was that he did not attain the aged of sixty until the 7^th of October next and he was concerned that this might frustrate his plan to leave next year. I indicated that the University was unlikely to be difficult in meeting his wishes.

I further suggested that he should discuss with Abigail Larkin the options open to him. These might include retirement on 30th September of 7^th October 2002 also, it would be very much in the University's interest to give an enhancement. Both these matters I have brought to the attention of Abigail………".

9. The next memorandum is a memorandum from Abigail Larkin, the pensions manager at QUB to Mr Sean McGuickin dated 3^rd December 2001. This memo reads in its entirety as follows:-

"A Fawcett

"The above named came to see me earlier today. I provided Dr Fawcett with details of his accrued entitlements, the benefits under PRCS and ill health. Ill health is the most favourable option which I tried to sell to Dr Fawcett (and Professor Armitage who came with him). Dr Fawcett was insistent that ill health was not an option as there was nothing wrong with him.

The figures provided to Dr Fawcett were based on a leaving date of 30.9.2002. He indicated that he would not want to leave until the 31.12.2002 as he wanted to finish some writing, he seemed immoveable about this date.

He indicated that he would decide what to do in due course. I said the current PRCS [Premature Retirement Compensation Scheme] structure would not necessarily be available indefinitely but that it should be in existence until 31^st March 2002. He said he would come back to me before that date."

10. The next document to which we were referred was a memo dated 15^th April 2002 from Frances Magennis of the Personnel Department to Dr Fawcett. That letter read as follows:-

"Dear Dr A Fawcett

Re: Early Retirement

Further to your request for early retirement, I understand that you had not been in touch with the Pensions Officer by 30^th March 2002, beyond which time the offer of early retirement could not be guaranteed.

I am therefore writing to arrange a meeting to formalise previous discussions in relation to early/ill health retirement and your reported lack of attendance at agreed laboratory demonstrations and lack of engagement with other reasonable academic duties in the School of Chemistry. Myself and the Dean will be in attendance at the meeting and you will have the right to be accompanied by a trade union representative or work colleague. The meeting will be held on 22^nd April 2002 at 4pm in room 208, Peter Froggatt Building.

Please contact me if you are unable to attend as an appropriate report can be made in your absence although we would, of course, prefer to speak to you in person.

Yours Sincerely

Frances Magennis"

11. The meeting took place on the 22^nd of April, but the claimant did not attend although Professor Armitage did attend the meeting as his representative. The next piece of correspondence was the claimant's letter of the 26^th of April 2002 addressed to the Vice Chancellor of the University. This is a lengthy letter with an attachment setting out a memorandum regarding the background to his situation. This is not relevant to the preliminary issue which the tribunal has to decide and we therefore quote only the first paragraph of that letter which reads as follows:-

"Dear Vice Chancellor,

I wish to resign from my Readership in the Department of Chemistry. I discussed the matter with the Dean recently, and obtained the terms of benefits under enhanced retirement indicated on the attached sheet. I wish to leave at the end of September, this year."

12. Mr Potter for the claimant did not dispute this sequence of events. He added that in May 2001 the claimant had gone to see the Vice Chancellor and had been dissatisfied at the result of that meeting because the Vice Chancellor had not wished to discuss matters going back to 1984 with him. The claimant also alleged that Professor Bain, the Vice Chancellor, had indicated in the course of that meeting that the claimant might be better looking for work elsewhere. The claimant believed that some of his colleagues wanted him to leave Queen's University. He believed that they had undermined his applications to other posts. The claimant had also had a conversation with Professor Spedding, a retired professor from Queen's University, at a conference in early April 2002. The gist of that conversation, according to replies to a request for further information provided to the respondent, was that Professor Spedding told the claimant that the source of threats allegedly made against the claimant in 1984 was a man named Alistair Graham who had since died. The claimant believed that these were all pressures on him to resign his post.
13. Effectively Mr Potter's argument was that there was no mutual agreement for the employment relationship between the claimant and the respondent to end. He argued that the claimant felt under severe pressure because of the conversation he had had with Professor Bain the previous May, because of the conversation he had had with Professor Spedding and also because of his medical condition in that the claimant suffered from an aneurism and high blood pressure. The claimant believed that these health concerns were linked to the pressure he said he had been under at Queen's University for many years.
14. Mr Hamill for the respondent rejected the idea that the health concerns of the claimant could be laid at the door of the respondent University. He indicated that the information received from Professor Spedding related to matters which had occurred many years previously and he suggested that these could not possibly have been seen as adding pressure to the claimant in any way.
15. Mr Potter referred to the date of the 31^st of March 2002 (by which the respondent had asked the claimant to respond on the issue of early retirement) as a deadline and an ultimatum. However the respondent's view was that this was simply the date beyond which they could not guarantee the terms of the early retirement scheme, and so they advised the claimant that if he wanted to avail of the terms offered, he needed to respond by the 31^st of March.

The Relevant Law

16. Both parties helpfully referred the tribunal to the relevant section of Harvey on Industrial Relations and Employment Law and also to a decision of the Court of Appeal for England and Wales in the case of Birch and Humber -v- The University of Liverpool. [1985] IRLR 165. That case related to two members of the technical staff of the University of Liverpool who had applied for early retirement under the Premature Retirement Compensation Scheme, the same scheme which applied in this case. Having taken early retirement, both men then applied for redundancy payments. The issue was whether or not their termination of employment was a dismissal, or whether, as the University argued, it was by mutual agreement. The industrial tribunal held that, since the employees' offer to retire was subject to the employer's approval, it was the University which had effected the dismissal.
17. The Employment Appeal Tribunal found that the employments were terminated by the combined effects of the employees' offer to retire and the University's acceptance of that offer i.e. that the termination was effected by mutual agreement and not by dismissal. The Court of Appeal dismissed an appeal against the decision of the Employment Appeal Tribunal. Lord Justice Ackner (as he then was) commented that -

"Where an employer envisaging that in some time in the future, for example because of new technology he will have to slim down his workforce, makes an offer to whose who are prepared to resign rather than have to wait to volunteer for redundancy and supports that offer with a financial inducement which is far in excess of what is likely to be obtained under the redundancy legislation, assuming no question any kind, there can be no question of there having been a dismissal if that offer is accepted."

18. In his judgment Lord Justice Ackner went on to say:-

"In my judgment that case raised essentially questions of fact and degree. Was there any pressure placed upon the employee to resign?; and if so was a degree of pressure such as to amount in reality to a dismissal?....." (see paragraph 19 of the judgment).

DECISION

19. The tribunal has considered carefully the submissions made by both parties and in particular the sequence of events leading up to the ending of the claimant's employment by Queens University. From the application to the industrial tribunal, it is clear that the claimant had been employed by the University for a considerable period of time, from 1973 until his employment ended on the 30^th of September 2002. Unfortunately that employment had a somewhat troubled history, the circumstances of which are not relevant to this particular issue. However, what is clear is that the initial approach in relation to Dr Fawcett's retirement under the Premature Retirement Compensation Scheme came from the claimant himself. He had a discussion with the Dean of his Faculty on the 26^th of November 2001 and subsequently spoke to the Pensions Manager in relation to the options for retirement. She provided him with that information and pointed out that the current scheme would not necessarily be available indefinitely but that it should be in existence until the 31^st of March 2002. This is because the schemes were renewed on the 31^st of March each year and, this information was given to the claimant by way of advice, rather than an ultimatum.
20. When the claimant did not respond to the Pensions Manager before the 31^st of March, it was unclear as to what the claimant actually wanted to do. The personnel officer therefore wrote to the claimant, asking him to attend a meeting in relation to early/ill health retirement. That letter also indicates that she wished to discuss with him his reported lack of attendance at agreed laboratory demonstrations and lack of engagement with other reasonable academic duties in the School of Chemistry. The claimant did not attend the meeting although Dr Armitage did attend on his behalf.
21. Shortly after the meeting the claimant resigned his post. His letter of resignation refers specifically to the terms of benefits under the enhanced retirement scheme and saying that he wished to retire at the end of September that year.
22. The issue for the tribunal to decide is whether or not the events and correspondence leading up to the claimant's resignation constituted undue pressure on the claimant or whether he opted voluntarily to take early retirement.
23. The points made by Mr Potter on behalf of the claimant – and on which no direct oral evidence was given and no other proofs adduced indicate that the claimant felt under pressure because he felt that he was being undermined by colleagues and because Professor Bain had suggested that he look for work elsewhere. Secondly, he indicated that the claimant felt pressurised because of remarks made to him by Professor Spedding at the beginning of April 2002, although it is very difficult to see how these remarks could be taken as being pressure from the respondent University, when Professor Spedding had already retired. Thirdly, Mr Potter referred to the claimant's health difficulties and the fact that the claimant felt pressurised to resign because of these. If this was a genuine concern, it seems strange that the claimant did not avail of the offer of ill health retirement, which would have been financially more advantageous for him than the Premature Retirement Compensation Scheme, according to the memos set out above. It also seems strange that the claimant seeks now to rely on his poor health, when he clearly rejected the idea of retirement on grounds of ill health in December 2001 (see para 9 above). The tribunal believes that none of these matters were genuine pressures from the respondent, but were rather perceived pressures which the claimant believed existed. No evidence was produced by the claimant to support his views.
24. The only possible pressure which is hinted at in the correspondence is the indication by Frances Magennis in her letter of the 15^th of April 2002 that the University wished to discuss with Dr Fawcett his "reported lack of attendance at agreed laboratory demonstrations and lack of engagement with other reasonable academic duties in the School of Chemistry". Mr Potter did not rely on this issue as being a pressure on the claimant. The tribunal notes that this was to be a preliminary meeting to have a discussion regarding the claimant's attendance to his duties and was not a disciplinary meeting. If the University had concerns about the claimant's work performance – and no evidence was adduced by either party on that issue - then the letter sent by Frances Magennis was an appropriate letter, and did not constitute undue pressure on the claimant. The tribunal does not accept the claimant's perceptions of pressure by other individuals on him were valid.
25. Accordingly it is the finding of the tribunal that the claimant sought early retirement from his post at Queen's University of his own volition. After he missed the agreed response date of the 31^st of March 2002, the University's personnel officer wrote to him to clarify the position. While the claimant did not himself attend the meeting on the 22^nd of April 2002, his representative did attend. A few days after that, the claimant wrote to the Vice Chancellor indicating that he wished to retire and referring to the enhanced retirement terms available to him under the Premature Retirement Compensation Scheme, of which he was able to avail. The tribunal therefore finds that the claimant sought early retirement and the University agreed to this. In the tribunal's opinion there was mutual agreement for the employment relationship to end and the claimant was not dismissed.
26. Accordingly the tribunal does not have jurisdiction to deal with the claim and his case is dismissed.

Chairman:

Date and place of hearing: 23^rd April 2007, Belfast.

Date of decision recorded in the register and issued to the parties: