United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 229_95_2209

Appeal No. EAT/229/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22nd September 1995

HIS HONOUR JUDGE J HICKS Q.C.

MR D A C LAMBERT

MR T C THOMAS CBE

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MR R K LAMING          APPELLANT

NATIONAL WESTMINSTER BANK PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR R K LAMING

(The Appellant in person)


 


JUDGE HICKS Q.C.: Mr Laming, the appellant, was employed by the National Westminster Bank, the respondent. He had worked for them since he joined them in 1964 at the age of twenty or just under twenty. By the time he left their employ he was approaching the age of fifty, at which age there were arrangements in force for early retirement, but he in fact left their employ early in 1993, and the question before the Industrial Tribunal was whether as, he alleged, he was dismissed or whether, as was the bank's case, he left under a voluntary agreement. The Industrial Tribunal came to the conclusion that the latter was the case and that he was not dismissed, and Mr Laming appeals.

The right of appeal to this Tribunal from the Industrial Tribunal is only on a question of law and we have no jurisdiction to interfere with the Industrial Tribunal's findings of fact unless they misdirected themselves in law in arriving at those findings of fact, or unless the findings of fact are, under the heading of what is commonly called perversity, so impossible, irrational or however else one puts it that no Tribunal properly directing itself could have arrived at them.

Mr Laming directs a number of criticisms at the decision of the Tribunal. He first of all referred us to the case of Sheffield v Oxford Controls Company Ltd [1979] IRLR 133, where a similar question had arisen. There is no need to refer further to that case because it turned on its own facts, and although a similar point may have arisen the question before the Industrial Tribunal in the present case was whether on the facts which they found there was dismissal or not.

Secondly, Mr Laming appealed to the general proposition that no one in their right senses, as he put it, would have left the bank's employment voluntarily at the age which he had reached because of the financial implications. If he was dismissed he would have been entitled to a redundancy payment even if the dismissal was entirely fair and to compensation for unfair dismissal if it was not. If he remained in their employ till fifty he would have the advantage of provisions for early retirement. But that background, of course, was part of the background that was before the Industrial Tribunal and they have made their findings of fact against that background, and it is quite impossible to say that because of general considerations of that kind they must have erred in law in reaching their decision.

Mr Laming next directed our attention to paragraph 12 of the Tribunal's reasons in which, having recited that Mr Laming when originally interviewed about the likelihood of redundancy and the termination of his employment had asked for a postponement, the Tribunal say:

"12 The reason the Applicant asked for the delay was that he had financial problems. He was heavily in debt to the Bank and his overdraft was over his limit. He had a large mortgage and he wanted a further loan from the Bank to cover his daughter's school fees. ..."

Mr Laming submits that in saying that the Tribunal were imputing financial recklessness to him, but we find no such imputation whatsoever. They simply recite those facts as being the situation which Mr Laming for whatever reason was in, and which was the reason why he asked for a postponement of the termination of his employment, and indeed they go on to say:

"... Mr Hutchinson [a member of the bank management] was sympathetic and agreed to delay the serving of notice. ..."

So we find no error of law in that point.

In paragraph 14 Mr Laming objects to the sentence which reads:

"... Mr Robson [again one of the bank management] explained that if termination was to occur under the terms sought by the Applicant, it was better done by mutual agreement rather than by dismissal on the ground of redundancy. ..."

Mr Laming submits that he never, in the words of the Tribunal, "sought any terms". But, as we read the reasons of the Tribunal, that phrase refers back clearly to the immediately preceding two sentences, which are as follows:

"14 On 11 November 1992, the Applicant had a meeting with Mr Robson and told him that he still wished to leave his employment after 6 April 1993 [and that clearly means after rather than before] as he had calculated that he would thereby gain financially in the sum of £3,500. He would also receive additional salary. ..."

That is immediately followed by the sentence to which Mr Laming objects. In our view, what the Tribunal were referring to by using the words "terms sought" were quite clearly Mr Laming's wish, which as we understand it he does not dispute, to postpone the departure until after 6th April 1993 or indeed, as I think he implied in his address to us today, as long as he could. It was of course that reply by Mr Robson, that on that basis the termination would be better done by mutual agreement rather than by dismissal, which led in to the negotiations which on the Tribunal's findings resulted in such a mutual agreement, and all that is an area of fact with which we cannot interfere.

Finally, as far as the recital of the Tribunal's reasons is concerned, Mr Laming referred to the last paragraph, paragraph 16, in which the Tribunal found:

"... On 9 March 1993, when the Applicant was still an employee of the Bank, he was offered a job by the Bank as a Project Manager in the O&M Department. He had had experience of the sort of work the job would entail and job was at the same grade held by the Applicant. Nevertheless, he turned down the offer. ..."

Mr Laming drew our attention to a letter which the Bank had written on 24th February 1993, in which the manager with personnel responsibilities for Group O&M Projects and Research, who had newly taken that post and was looking for project managers, enclosed a job description and went on to say:

"At this stage I do not have any actual vacancies. ..."

Mr Laming says that shows that there was no offer on 9th March 1993. It seems to us that quite plainly it shows nothing of the kind. What happened on 9th March 1993 was a question of fact which the Industrial Tribunal dealt with and made the finding which they did, and indeed the letter of 24th February 1994 pre-figures the possibility that "actual vacancies", as the letter says, will arise, and is making preparatory enquiries.

Those were the matters which Mr Laming volunteered in argument this morning. In his grounds of appeal he had also put forward the objection that the finding at paragraph 12 of the Industrial Tribunal's reasons, that a letter of 22nd October 1992 "did not constitute notice of termination of his employment" was an error of law. Upon enquiry he confirmed he still wished to pursue that point, and it is true that the construction, the true meaning, of a document is indeed treated as a matter of law rather than of pure fact, and therefore if that ground were made out there would possibly be an error of law. But when one looks at that letter of 22nd October 1992 it begins:

"I write further to our meeting this afternoon to confirm that, as we discussed, in the absence of any suitable opportunities being identified, the Bank will be giving you three months notice of redundancy at the end of this month, under the terms of Action Directory Staff - Appendix 14 (ii). ..."

It is quite plain that that is not a notice of redundancy; it is a statement of present intention, it is conditional upon the absence of any suitable opportunities' being identified, and in the event as the Industrial Tribunal found no such notice was given at the end of October or indeed at any time, because it was overtaken by the negotiations between the parties which resulted, as the Industrial Tribunal found as a fact, in a consensual agreement for the appellant Mr Laming to leave.

We have therefore considered all the matters which Mr Laming has advanced and we find no error of law on the part of the Industrial Tribunal, and must therefore dismiss this appeal.