United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 309_94_0704

Appeal No. EAT/309/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7th April 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J R CROSBY

MISS A MADDOCKS OBE

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MR D BATES          APPELLANT

BRIT EUROPEAN TRANSPORT LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant ADRIAN LYNCH

(of Counsel)

Kathryn Barlow

Robinsons Solicitors

3/5 Mundy Street

Heanor

Derbyshire

For the Respondents STEPHEN BAKER

(of Counsel)

Messrs Hibbert & Co

144 Nantwich Road

Crewe

Cheshire


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the Decision of the Industrial Tribunal held at Shrewsbury on 24th January 1994.

The Tribunal heard a claim for unfair dismissal brought by Mr David Bates against his employers, Brit European Transport Ltd, by whom he had been employed as an HGV driver on international routes from September 1988 to August 1993.

In his originating application presented on 29th October 1993, Mr Bates claimed unfair dismissal on the grounds set out in detail in section 10 of the IT1. The claim was resisted by Brit European Transport Ltd. They said that Mr Bates had not been dismissed. Their case was that he had resigned. That was the issue before the Tribunal.

The Tribunal unaminously decided that Mr Bates' claim failed. They said he had resigned. The reasons for that conclusion were notified to the parties on 17th February 1994, Mr Bates appealed against the Decision by a Notice of Appeal served on 1st March 1994. The appeal first came before the Appeal Tribunal as a preliminary hearing on 27th July 1994. A direction was given that the Appeal be allowed to proceed at a Full Hearing. Consequential directions were made for the Notice of Appeal to be amended, for the production of notes of evidence by the Chairman and for the exchange of skeleton arguments.

At the hearing today, there have been excellent arguments on each side, Mr Lynch for Mr Bates and by Mr Baker for Brit European Transport Ltd. We have reached the conclusion that there is an error of law in this decision. The Appeal should be allowed. For reasons explained in more detail later, we have decided to remit this case for re-hearing by a different Industrial Tribunal. The re-hearing will be on the same issue as before: was there a dismissal or was there a resignation? It seems from what we have read and heard that, if it is found that there was a dismissal, it is inevitably an unfair dismissal, because no reason was advanced by the Company for a dismissal. They have always taken the position in the proceedings that this was a resignation. They have advanced no other line of defence.

In order to explain the error in this decision it is necessary to examine the facts found by the Tribunal. It is well known to Counsel advising the parties and representing them on this appeal that we can only entertain an appeal on a question of law. It is not our job to decide facts or to disagree with findings of fact made by a tribunal, unless there is some error of law which undermines the Decision.

The Tribunal found that Mr Bates had been employed, as he claimed, as a driver from September 1988. He worked for Brit European Transport Ltd in their business as an international transport company, delivering goods by vehicle all over Europe and bringing goods back to the United Kingdom.

Unfortunately, Mr Bates was injured in an accident which occurred in the course of his employment on 24th May 1992. He has not been able to work since that date. Following the accident, in accordance with the Company's normal procedure, he accrued holiday pay for 16 weeks which was paid to him and he received statutory sick pay and payment under one of the Company's insurance schemes, all for certain periods.

The crucial events in this case started in late August 1993. On 25th August Mr Bates saw his GP. The doctor gave him a certificate that he would be fit to resume light work on 29th August. After seeing the doctor he went home, and he telephoned Mr Holden of the Company. The Tribunal said in paragraph 4 of the Decision:

"It is the substance of that telephone call which is the main issue in this case."

The Tribunal in paragraph 5 of the Decision set out the evidence that they had heard about the telephone call. They set out Mr Bates case, which was that Mr Holden said something to him like:

"I'll have to finish you", meaning that Mr Holden would have to terminate the applicant's employment."

Mr Holden disputed that. The dispute had been there from the start in the Notice of Appearance served by the Company in December 1993. They said:

"At no time was the statement made by Mr J Holden that `I'll have to finish you'"

Mr Holden's evidence was that he told Mr Bates that his job was available, that his job was as a HGV driver and that he could not give him a job involving light work only. Mr Holden's evidence was that he specifically avoided giving Mr Bates any notice. He said that there was no need for him to do so. He was happy to keep Mr Bates on the Company's books and his job as an HGV driver was available as soon as he was fit to do it. The job was still there at the date of the hearing before the Tribunal. He said that, if the job had not been available when Mr Bates was fit to do it again, then they would have faced the situation as arose at that stage. Mr Bates agreed that he was not able to do a full job as an HGV driver at the date of the Tribunal. He was still only in a position to do light work.

Faced with that conflict of evidence, the Tribunal preferred the evidence of Mr Holden and found it a fact that he did not dismiss Mr Bates in the telephone conversation.

The Tribunal then went on to deal with later events. It was on the basis of the later events that they came to the unaminous conclusion that there had been a resignation by Mr Bates. The later events referred to were an exchange of letters. It does not appear from the Tribunal decision that there was any further conversation in which a resignation could have taken place.

The two letters referred to in the Decision and are quoted were clearly seen by the Tribunal as crucial documents. Indeed they said at the opening of paragraph 6 of the Decision:

"Later that day, [that is the day of the telephone conversation] as asked by Mr Holden the applicant sent in his medical certificate and in the letter he also asked for his P45. [The Tribunal commented] That really was the crucial point."

They quoted in full the letter sent by Mr Bates, in his own handwriting:

"Dear Mr Holden

Further to my phone call on 25.8.93 I've enclosed the sick note saying "I'm only fit for light work". As you said on the phone that there is no job for me. Would you please send me my P45 and all other relevant papers to me as soon as possible. Could you send the sick note back as well as its got to go to DSS. Thankyou.

Yours sincerely,

D A Bates"

On that letter Mr Holden's evidence was that he thought Mr Bates was accepting that he could not do the HGV job any longer and was resigning. His reply, dated 26th August, was in these terms:

"Dear David

We are in receipt of your letter and sick note stating that you are unable to carry on with H.G.V. driving and that you will have to seek some light work.

Unfortunately as you are aware light work is not available as all our activities relate to Continental driving and loading vehicles and a requested we will instruct the Wages department to finalise your employment next week and they will forward your P. 45 and any monies due will be sent by bank transfer.

We thank you for your time with the Company and wish you well in the future.

Yours sincerely,

James Holden"

There were two further letters not referred to in the Decision of the Tribunal. We should read those before we come to the conclusions of the Tribunal. On 8th September 1993 a firm of solicitors retained by Mr Bates at the time when he made his Industrial Tribunal application, (but not at the date of the Hearing when he represented himself and Mr Holden represented the Company), wrote to the company saying:

"Dear Sirs,

Re: Our Client: David Arnold Bates

We are instructed by David Arnold Bates in connection with your termination of his employment with you recently. We should be grateful if you would provide us with written reasons for Mr Bates' dismissal.

Yours faithfully,"

That was a perfectly straight forward letter. The reference to termination of employment in the first sentence and to reasons for Mr Bates dismissal in the second, could have left the recipients of the letter in no doubt that it was alleged, on behalf of Mr Bates, that there was a dismissal by the company.

There was a reply from Mr Holden which was not dated at the time. It is common ground that it was sent on 9th September. It was addressed to the solicitors and said:

"Dear Sirs,

Re: Mr David Arnold Bates

We are in receipt of your letter dated the 8th September 1993 in respect of the above named person who lives at 50, Milnhay Road, Langley Mill, Notts.

The employment of Mr Bates on 18th September 1988 was that of a H.G.V. Class 1 driver carrying out the duties of a driver on our activities of an International Road Haulage Company.

On the 25th May 1992 Mr Bates fell off of a trailer whilst checking it at Dunkirk and since the 27th May 1992 he had been off work since that time by producing Sick notes from his G.P. On the 25th August 1993 Mr Bates spoke to the writer stating that his G.P. was going to sign him off Sick but stating that he was only able to carry out light work.

If Mr Bates had been able to carry on his previous duties then the Company could have carried on his employment but as stated that due to our activities there are no duties available involving light work.

Accordingly Mr Bates wrote to the Company stating his position and confirming our conversation and in reply we sent a letter back to Mr Bates confirming the termination of his employment under the circumstances that now exist. Copies of both letters are enclosed for your information."

That letter attracted the comment of Mr Lynch (and attracts our comment), that that is a reply to a letter alleging termination of employment and asking for written reasons for dismissal. There is not a word in it disputing the allegation of dismissal or positively asserting that Mr Bates had resigned.

Those letters, it is clear from the notes of evidence, were before the Tribunal, but they are not mentioned in the Decision. On the material referred to, how did the Tribunal come to the Decision that there had been a resignation? They state there conclusion in two paragraphs in 7 and 8. They say:

"7. We find that the applicant ceased to be entitled to sickness benefit on 29 August as a result of the certificate from his doctor dated 25 August. As the respondents had no light work available for him, he needed Unemployment Benefit and we find that he resigned from his job in order to get it. He had to show he was unemployed and that was the reason why he asked for his P45."

In paragraph 8 they referred to the question of light work availability and then said this in the final paragraph of the Decision:

"We have considerable sympathy for the applicant in this case, but we have to look at it and decide on the evidence. Our conclusion in that Mr Bates resigned from his employment by his letter asking for his P45 and was not dismissed. As he was not dismissed he cannot claim unfair dismissal and the application is dismissed."

Mr Bates not only appealed against that decision. He sought a review. His solicitors wrote a letter on 3rd March 1994 making a number of points in support of a request for a review. In particular, a review was sought on the following ground:

"The Applicant makes the point that in form IT3 the Respondent had made no reference whatsoever to any speculation as to the reasons for the Applicant's alleged resignation. If such speculation had appeared in form IT3 then the Applicant would have had the opportunity to answer such speculation and request documentation in possession of the Respondent and third parties relevant to this question. Neither did the Respondent adduce any evidence or make any suggestion during the course of the hearing as to such matters. The speculation, in fact, was first made by the Tribunal itself when it presented its decision following the hearing.

In the circumstances the finding that the Applicant resigned specifically for the purpose of claiming unemployment benefit is nothing more than speculation on the part of the Tribunal since it is totally unsupported by any evidence, and indeed it is a finding reached without the Applicant having been given a proper opportunity to respond to the point or request an adjournment so that he could take appropriate steps to obtain evidence relevant to the point."

The Chairman of the Tribunal refused the application for a review on the ground that, in his opinion, it had no reasonable prospect of success. The reason he gave was that the Tribunal had decided the case on the evidence before it. It considered all the papers. The crucial issues in this case, and the Tribunal's findings of fact are set out in paragraphs 4 and 5 of the Decision. We pause there to comment that, the findings of fact are not set out in paragraph 4 and 5 of the Decision. Far from setting out the findings of fact, they state the conflict of evidence and the relevance of that conflict, on what they describe as the main issue in the case. The findings of fact did not begin until paragraph 6. The most crucial finding of fact, adverse to Mr Bates, was the finding in paragraph 8 that he had resigned by writing a letter and asking for a P45. The review was refused.

On the hearing of this appeal we have heard detailed arguments on both sides. A lot of the matters dealt with in detail by Mr Lynch by reference to case law are common ground. There is no need to cite the authorities.

The main point, as we see it, is this; the crucial decision which led to Mr Bates' claim being dismissed was that he had resigned. The reason they held he had resigned was that he had written a letter asking for his P45. We have read the letter a number of times during the course of the hearing. We cannot interpret that letter, and, in our view, there is no way in which a reasonable tribunal could interpret that letter as amounting to a letter of resignation. The Tribunal seem to have regarded it as a letter of resignation, because Mr Bates said in it, "would you please send my P45". That is not evidence of a resignation. The letter, of course, has to be read in the context in which it was written. The context set by the Tribunal was in the finding in paragraph 7 that Mr Bates had written that letter in following circumstances: he would cease to receive sickness benefit; there was no light work available for him with the company; he needed unemployment benefit. They say:

"... we find that he resigned from his job to get it."

(that is, unemployment benefit.)

We accept Mr Lynch's criticism of the Tribunal. The findings made by them in paragraph 7 are open to the objection that there is a serious finding of fact, having an impact on the outcome of the case, which was, in his words, "the creation of the Tribunal", apparently after the completion of the hearing. It was not part of the company's case in the IT3. It was not a matter which was explored in evidence and argument at the industrial tribunal hearing. It is a finding for which there was no evidence. The matter of Mr Bates' motives were not put to him and Mr Bates was never given an opportunity to demonstrate that it lacked substance or that he had an answer to it.

We have been referred to the notes of evidence. There are two passages in the notes of evidence which maybe relevant to this matter. The first is on page 27 in cross-examination. Mr Bates said this, according to the Chairman's notes:

"Easy life - colleagues don't agree after receiving 26 August saw employment lady she'd asked me to write to Company and ask for P45. Why ask this if already dismissed. Advised to write to Company asking for P45 letter 25/8. If dismissed would send without asking. Not dismissed? Yes - you know you did."

[And then a further passage, in consequence of questioning of Mr Bates from the Chairman]

"Solicitor told me to ask for P45 U/EX I saw her, explained. She just said "Yes. He's terminated your employment". Write for any relevant paper work. I did what Solicitor said. No suggestion of talk - I'll ask why employment terminated. I can't remember what she said about 7." [7 refers to the undated letter which I have mentioned, which was later dated 9th September]

Notes of evidence made by a Chairman are not, and are not intended to be a full transcription of everything said at Tribunal. We are not critical of the Chairman's notes in this case. All we can say is that it does not appear sufficiently clearly to us from those notes that the conclusions drawn adverse to Mr Bates in paragraph 7 of the Decision were based on any matters given evidence, or on which he had a chance to provide an answer in the course of the hearing.

In those circumstances, there is an error of law in the Decision. On that matter we accept the submissions of Mr Lynch based on the authorities concerning the rules of natural justice. Those rules are not observed if an Industrial Tribunal determines issues without giving the parties a proper opportunity of presenting evidence and making representations with regard to an issue. On that part of the case he cited a number of well-known cases referred to in his skeleton argument.

We find that there is an error there. It is reinforced by what we have discovered for ourselves (and with the assistance of counsel), during the course of the hearing, about the position relating to unemployment benefits.

We understand from Mr Lynch that his client, in fact, encountered no difficulty in obtaining unemployment benefit. But, from enquiries which have been made by Mr Crosby, a member of the Tribunal and by the two counsel, it does appear that a person who resigns from his employment, who voluntarily leaves it without just cause, may find, for a period of up to twenty-six weeks, that there are difficulties in obtaining unemployment benefit. These matters are enquired into to see whether it is an appropriate case for paying benefits. The matter is not concluded simply by the fact that an Industrial Tribunal application has been made alleging unfair dismissal. The Employment Service Office will make its own enquiries to determine whether or not the voluntary termination of employment had a just cause. That may affect entitlement to unemployment benefits for a period of up to twenty-six weeks.

In those circumstances, the conclusion in paragraph 7 that Mr Bates resigned from his job, in order to get unemployment benefit, is all the more surprising. The error in the decision is in deciding a crucial matter without giving an adequate opportunity to Mr Bates to deal with it at the hearing. The proper course for the Tribunal to have followed, if this point occurred to them, subsequent to the hearing, was to notify the parties of the view they had formed and invite them to make further representations, either in writing or orally, as they preferred. It is not a proper or fair procedure for a Tribunal to decide a case on a factual or legal basis on which the parties have had no opportunity, or no sufficient opportunity, to make representations.

That is sufficient to dispose of this appeal.

In summary the reason why we find this to be an erroneous decision is that the Tribunal based its conclusion of resignation on a request for a P45 in a letter. The letter cannot itself be construed as a letter of resignation. The request for a P45, whether made in a letter or orally, is not itself clear evidence of a resignation. A P45 is needed whenever there is a cesser of employment. Employment may cease by reason of dismissal. It may cease by reason of resignation. The mere request for a P45 is ambivalent.

Secondly, if it is said that we must read that letter in the context of the circumstances in which it was written, we have already explained the legal error of the Tribunal on the findings of fact it made as to Mr Bates motive or purpose in resigning. Those findings were made without the Tribunal observing the rules relating to natural justice.

We find two errors in the decision. One in paragraph 8, one in paragraph 7. They are legal errors. The result is that we must remit this matter to another Industrial Tribunal for a re-hearing.

It is not one of those cases in which we are able to say, on that facts found by this Tribunal, that an Industrial Tribunal could only come to one conclusion, that this was a dismissal case. It is necessary to have a re-hearing of the evidence and re-examination of the documents and a fresh hearing on the legal submissions.

We take that course with some regret. By the time it gets back to an Industrial Tribunal two years will have passed since the events of August 1993. That is not a satisfactory situation, from the point of view of the parties, from the point of view of the Tribunal, which has to attempt to reach a decision on fact, on events which took place so much longer ago than at the date of the first tribunal hearing.

This is unavoidable. Our order is to allow the Appeal and to remit the case to a fresh Tribunal for re-hearing.

It is not our function to settle cases. We decide cases. But we hope that the comments at the end of our decision will be borne in mind by both sides.