United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 193_94_0111

Appeal No. EAT/193/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1st November 1994

Before

HIS HONOUR JUDGE HULL QC

MR D J JENKINS MBE

MISS A MACKIE OBE

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MR M PLUMMER          APPELLANT

BRITISH AIRWAYS PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR M PLUMMER

(IN PERSON)


 


JUDGE HULL QC: This is an Appeal to us by Mr Plummer who was employed by British Airways PLC in their Internal Audit Department. His employment began in July of 1970 and it eventually ended in March, 1991.

He complained to the Industrial Tribunal sitting for London (North) on the 15th December under the Chairmanship of Mrs Prevezer, with two Industrial Members, that he had been unfairly dismissed. That Industrial Tribunal heard his Application and reached a conclusion which I will refer to more later, saying that he had not in fact been dismissed at all. It was a voluntary arrangement which had ended his employment, in which he received a substantial sum of money, more than £30,000 or, as Mr Plummer, who very courteously attended us today, points out he was to receive that sum of money but it did not arrive for some considerable time afterwards. And indeed he was aggrieved, in those circumstances, not to receive interest on the sum. But that was the substance of the decision.

They went into a good deal of detail, no doubt because a good deal of detail was laid before them. In the course of a long and detailed decision letter, with full reasons, the Tribunal stated a large number of matters of fact. Mr Plummer has invited our attention to the fact that there are undoubted mistakes in some parts of that statement of the facts, some of them very obvious ones. Others, he says, depend upon their misunderstanding of the evidence which he laid before them, and that is an important part of his appeal.

What we have to do of course, this case being in our list under our Practice Direction, is to say whether, with Mr Plummer's assistance, we can find any point of law; because unless there is a point of law, we cannot allow it to proceed. By statute, we are only allowed to consider points of law. It does not matter whether or not we would have decided or think we would have decided the facts in the same way as the Industrial Tribunal, we cannot consider those. The Industrial Tribunal has been called "the Industrial jury", and they are the sole judges of fact.

Now in the present case, I am not going to go all through the Decision. The Industrial Tribunal found, among other things, that after Mr Plummer had been seconded away from his job in Internal Audit, his job in effect disappeared. He was then engaged in what seems to have been a stultifying and difficult search for further employment within his employers' organisation, which of course is a very large one. At that time there was what could be loosely described as a redundancy situation - a large number of employees were leaving British Airways, no doubt for reasons of efficiency, falling off of work, or whatever it may be. The demands of the employers for labour, skilled labour, such as Mr Plummer's, were ceasing or diminishing, to use the language of the statute. Mr. Plummer seems to have had what could justly be called a thoroughly unsatisfactory progress around the organisation in which he, as he assured the Tribunal, in the utmost good faith sought to carry out the jobs and to seek further jobs.

Ultimately, he did sign terms on which he parted company with the employers on payment of the severance pay, which I have mentioned, a very substantial sum. In those circumstances, the first question which the Industrial Tribunal had to consider was whether he was dismissed at all, because their jurisdiction did not arise unless Mr Plummer had been dismissed. His case was that he had been forced out, that he was in truth redundant, that he was not treated fairly; amongst many averments which he makes, and certainly not without foundation, are that when asked what would happen if he declined to agree to the severance terms which were offered, he was not given an answer to that. The only intimation that he had on that was, that he would or might be dismissed if he did not sign. So that was a very important matter for the Tribunal to consider.

There were complaints about his treatment by his Supervisor and by a Manager, and other matters of that sort. All that was laid before the Tribunal. They therefore had to consider, as I say, whether he had been dismissed.

In paragraph 7 they say:

"We have been referred to cases which deal with "enforced resignations" or constructive dismissal". I will deal with the matter of dismissal first. The Respondent referred to Sheffield v Oxford Controls Ltd [1979] page 396 which dealt with the situation where an employee was threatened that if he did not resign he would be dismissed and the threat caused the resignation. It is clear from this case that if the reason that the Applicant signed the letter was that he felt if he did not do so he would be dismissed, then this could amount to a dismissal. However, if there were other circumstances or factors which caused the Applicant to sign the letter, then this need not be a dismissal. Mr Justice Arnold states in his judgment,

"It is plain, we think, that there must exist a principle exemplified by the four cases to which we have referred that where an employee resigns and that resignation is determined upon by him because he prefers to resign rather than be dismissed (the alternative having been expressed to him by the employer in the terms of a threat that if he does not resign he will be dismissed) the mechanics of the resignation do not cause that to be other than a dismissal. The cases do not in terms go further than that. We find the principle to be one of causation. In cases such as that which we have hypothesised and those reported, the causation is the threat. It is the existence of a threat which causes the employee to be willing to sign and to sign a resignation letter or be willing to give and to give the oral resignation. But where that willingness is brought about by other considerations and the actual causation of the resignation is no longer the threat which had been made out but is the state of mind of the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then we think there is no room for the principle to be derived from the decided cases. In such a case he resigns because he is willing to resign as a result of being offered terms which are to him satisfactory terms on which to resign. He is no longer impelled or compelled by the threat of dismissal to resign, but a new matter has come into history namely that he has been brought into a condition of mind in which the threat is no longer the operative factor of his decision; it has been replaced by the emergence of terms which are satisfactory."

And on that Mr Plummer has written "Not true in my case" and of course that is exactly what he laid before the Industrial Tribunal. He says, "No, I was compelled."

Then the Tribunal say the Applicant has referred to the principles laid down in Bickerton v Inverhouse Distillers and they deal with that.

"On the principles laid down in Sheffield v Oxford Controls Ltd we find that the Applicant did not resign his employment because he thought he would be dismissed. There are other factors that caused him to sign the letter. These factors have been listed above [they had set them out at great length] and we find that he voluntarily signed the letter and resigned and therefore there is no dismissal.

It follows therefore that his claim for constructive dismissal cannot succeed because of the above finding,.."

And they deal with the evidence which he had given there. But they found that he was not dismissed and although Mrs Prevezer, the Chairman, uses the term `I' once or twice there, it is quite clear that this is the decision of the whole Tribunal.

Mr Plummer appeals to us against their decision and he makes four main points. First of all he says the Industrial Tribunal erred in law in holding that he was not dismissed. But as we have said what was explained by Mr Justice Arnold in the Sheffield case, and was explained by other distinguished judges in other cases, is that that is basically a question of causation, causation is a question of fact and it is for the Industrial Tribunal in every case to say whether the reality of the situation is that the employee was acting under duress or compulsion, and only resigned because he knew the only alternative was dismissal; or whether, in fact, he resigned because he was content with what was offered to him; albeit unwillingly, nonetheless, he took what was offered. Each case must be decided on the facts. One gets cases in which a large number of people volunteer for redundancy, but volunteer of course on the basis that they know that there is going to be redundancy; and in those type of cases it is often held, it is rarely disputed, that they are indeed dismissed by the employer.

Then one gets cases of much more senior people like Mr Plummer, where they depend very much on their own facts; and no doubt the Tribunal paid particular regard to Mr Plummer's evidence and the evidence of the documents, which they seemed to have considered in great detail. The error, if it were one, would be an error of fact. And we cannot find any error of law in the way in which this Tribunal directed themselves correctly from the authorities, considered the matter and decided that there was no dismissal here.

Mr Plummer's second point is really putting the same thing another way. He says, "The Tribunal were wrong to accept that I resigned", and he refers to Sheffield v Oxford Controls Ltd, "The facts show", he says, "that I was forced", and he complains that the facts were not laid before the Tribunal because of the frequent interruptions of the Chairman. Now it is not alleged that the Chairman or indeed any other Member of the Tribunal was biased. Interruptions are intended by any fair minded Chairman to try to get to the points in the case and to assist the advocate or representative, or indeed the litigant in person, to come to what is the point in the case. Whether or not Mrs Prevezer interrupted from time to time is not the point. The fact is that with the aid of her colleagues, they considered this matter in a way which seems to us to be legally impeccable. And we have, as I say, no suggestion that the Chairman or any other Member of the Tribunal was biased or that there was improper behaviour, such as to deprive the deliberations of the Tribunal of the proper character of a fair trial.

Then Mr Plummer repeats his suggestion that he was constructively dismissed. But that, with great respect, clearly disappears in the finding that he was not dismissed. There can be no constructive dismissal if there is no dismissal. Lastly he complains of a number of details, points of fact, which he says he can point out, and which show the decision to be a mistake. He has invited our attention to those in detail.

All one can say, having considered those, as we have done, is that some of them are simply `slips of the pen' for example with regard to dates; Mr Plummer tells us that there are no less that four mistakes in the dates in the last paragraph. They cannot, we think, affect the matter. And for the rest he is essentially repeating the submissions he has already made, namely that the Tribunal misinterpreted or misapplied the facts, or misunderstood the facts. These are all questions for the Tribunal itself and not questions of law. If they had directed themselves to the wrong question, or took into consideration manifestly irrelevant matters, or something of that sort, or if it could be said that the decision flew in the face of reason, it would be different. But it appears to us that all these complaints which Mr Plummer has laid before us are essentially complaints that the Tribunal should have reached, as a matter of fact, a different conclusion on the evidence which was laid before it. On analysis, we find that that is not a conclusion of law.

We would say, in case it is any comfort to Mr Plummer, that we cannot on our present information see that the success of this Appeal could possibly help him. It will run him into expense to pursue the Appeal. The sum which he has received by way of agreed severance pay would, we think, be bound to be taken into consideration and set against any compensation which he was likely to be awarded, in the event of complete success. It is far larger apparently than any sum which he would likely to be, or could be, as a matter of law, awarded, and in those circumstances it is impossible to see that any material satisfaction could come to Mr Plummer from the success of this Appeal. That is not of course the ground of our decision, but we mention it, in case it is of any comfort to him.

In all the circumstances, we cannot in conscience say that any point of law arises here. And in those circumstances, having considered it, with Mr Plummer's assistance, as best we can, we have to say that this Appeal cannot continue. It has to be dismissed at this stage to avoid putting both parties to the expense of a full contested Hearing, and we so order.