United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 329_94_2301

Appeal No. EAT/329/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 January 1995

HIS HONOUR JUDGE D M LEVY QC

MRS R CHAPMAN

MR S M SPRINGER MBE

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MRS J A SQUIRES          APPELLANT

HILL BROTHERS (CHICHESTER) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR D BARNETT

Of Counsel

FRU

c/o Warwick House Chambers

8 Warwick Court

Gray's Inn

London

WC1R 5DJ

For the Respondents MR R SCUPLAK

Personnel Consultant

IRPC Hinton Ltd

Stockwell House

New Buildings

Hinckley

Leicestershire

LE10 1HW


 


JUDGE LEVY QC: This appeal follows a preliminary hearing held on 8 July 1994. In this case Mrs Squires appeals against a finding by an Industrial Tribunal, held at Southampton on 2 February 1994, that she was not unfairly dismissed by her employer, Hill Brothers (Chichester) Ltd ("the Company").

The Company's business was that of a small firm of market gardeners. Mrs Squires was promoted as an employee of that firm in February 1993 to the post of temporary supervisor of other workmen there. The Company did not find that the promotion worked. On 14 May 1993 they terminated her appointment as a temporary supervisor.

There appeared to be ill-feeling about Mrs Squires from other employees and a time came when the Company wrote to her a letter dated 12 June 1993 in these terms:

"With reference to the meeting held at your request on Friday 4 June 1993 between ourselves and other female members of staff in order that you be aware of the precise personality problem referred to in our letter of the 14 May 1993 and queried in your letter of 21 May.

Various views were expressed confirming those already given by past employees that your uncompromising approach to work practices and critical observations of fellow workers continually gave rise to an unpleasant and unsustainable working environment.

When these feelings were conveyed to you in a situation where the opportunity existed to address the problem directly and where ways of resolving the issue could have been implemented you displayed nothing but contempt for those present to which we can only conclude that any further progress may well be impossible. This feeling was compounded by your decision not to return to work for the afternoon period.

This unsatisfactory conclusion to the meeting has further aggravated an already very difficult situation. In order to have any hope of guaranteeing your continued employment with this company there must be an acceptance of the views expressed and a determination to resolve the problem. We therefore look forward to your response to this letter".

The Industrial Tribunal found this to be an apposite letter to be written to Mrs Squires, and we accept that that was a finding that could properly be made by them. What happened after the letter had been written was recollected in different terms by Mrs Squires and the Company. It seems to have been accepted that she did not receive the letter in the post. On 14 June 1993 her evidence as to what happened was summarised thus in paragraph 10 of the Full Reasons given by the Industrial Tribunal.

"The Applicant gave evidence to the effect that at 8.00 am Peter Hill summoned her to the office and said `Are you thick or bloody thick skinned, I'll give you £1,200.00 to get out the f...ing gate now'. She told us that she was then presented with a form of receipt (Exhibit R4) which she signed `because I was so upset'. That receipt reads as follows:- `Received from Hill Brothers (Chichester) Ltd the sum of £1,200.00 in full and final satisfaction of all claims which I may have relating to my employment with the company'. She said she was not shown nor given the letter dated 12/6/93 which appears at page 3 of Exhibit R. Clearly if one accepted the Applicant's evidence of what transpired on 14/6/93 there would, prima facie, have been an actionable dismissal which would have been unaffected by the receipt of £1,200.00 expressed to be in full and final satisfaction of all claims".

In paragraph 2 of the Full Reasons the Tribunal had said this:

"The Applicant comes before us complaining that she was unfairly dismissed. The Respondents say that she resigned".

The Company's evidence as to what happened on 14 June is summarised by the Tribunal thus in paragraph 11 of the Full Reasons.

"11. Mr Kevin Hill told us that after the Applicant was summoned to the office on 14/6/93 by his brother Peter she was shown the letter dated 12/6/93 (Exhibit R3) and after she had read it and showed no response whatsoever his brother Peter said to her `either you are thick or thick skinned'. According to Mr K Hill the Applicant then offered to leave to which one of them replied "Perhaps that would be the best thing", offered her £1,200.00 and had typed out the form of receipt (Exhibit R4). Mr K Hill denied that she was told she had to go. He said that he and his brother were aware that the Applicant was entitled to stay on and that they would have gone along with one more effort to resolve the problem. He denied that his brother had said `get out of the f....ing gate'. He said that had the Applicant accepted the suggestion contained in the letter of 12/6/93 the matter need not have gone any further. He said that if the situation had continued and they had lost staff as a result of the Applicant they would have had to get rid of her. He said that what the other girls had said is that they could not go on working with the Applicant".

The Tribunal essentially accepted the evidence of Mr Kevin Hill about what happened on 14 June, and, of course, the final sentence of his evidence as summarised may have helped the Tribunal with its decision. The Reasons do not analyse what the effect of the meeting was. The Tribunal state in paragraph 13:

"13. .... Having accepted, as we do, that the Applicant offered to resign and was not told to go it follows that there was not a dismissal; ipso facto there was not an unfair dismissal".

Mr Barnett, who appears before the Tribunal today, as he did at the preliminary hearing, challenges that finding in two ways. First of all, he accepts that the Tribunal found as a fact that Mrs Squires had offered to leave and by implication she did so in ambiguous terms. However, he says, on an objective view the circumstances of a resignation make it possible that the resignation was not genuinely intended, notwithstanding that unambiguous words of resignation may have been used. In such circumstances, he says, the employee should be allowed a cooling off period of one or two days before her resignation is accepted. He said that what the Tribunal should have done was this. It should have made findings as to whether Mrs Squires used unambiguous words of resignation. If they found that she did, he says the Tribunal should then have looked to see if the circumstances made it possible that a resignation was not the genuine intent of the employee. If they came to that stage, they should then ask themselves whether the employer allowed a suitable cooling off period before accepting the resignation from her. Of course, that is not something that the employers did and that it not something which the Industrial Tribunal considered.

To support his submission Mr Barnett referred us to the decision of Wood J. and two of his colleagues, one of whom sits on this Tribunal today, in the decision in Kwik-Fit (G.B.) Ltd v Lineham [1992] ICR 183. At page 191 of the judgment there, Wood J. giving the decision of the Employment Appeal Tribunal said on the question of resignation at D:

"As we have said the industrial members take the view that the way in which this industrial tribunal have expressed themselves puts too high a burden upon employers. If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure ("being jostled into a decision") and indeed the intellectual make-up of an employee may be relevant: (and he gives a citation). These we refer to as `special circumstances'. Where `special circumstances' arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances' the intention to resign was not the correct interpretation when the facts are judged objectively".

The facts in Kwik-Fit were rather different to what we have here, but the words of Wood J. and his colleagues, which I have quoted, seem to us to be very relevant. With great respect to the Industrial Tribunal, there are no, or no sufficient findings, as to whether or not there was a clear resignation on 14 June by Mrs Squires. There are no findings as to whether or not she was under pressure at the time. There is no or no sufficient consideration given to the surrounding circumstances which might have amounted to special circumstances.

In attempting to reply to the point made by Mr Barnett, Mr Scuplak who appears for the Company here, tried to introduce evidence of what had happened below in the court, but he had not requested, and we did not have, the notes of the evidence; therefore we did not feel it appropriate to allow him to explore that route. He further submitted that as the Industrial Tribunal had preferred the evidence of the Company on facts as to what happened on 14 June to that of Mrs Squires, there are no findings that the Tribunal could make which could assist the case which Mr Barnett put forward.

We are unable to accept Mr Scuplak's submissions. The Industrial Tribunal does not appear sufficiently or at all to have asked themselves whether or not there was pressure on Mrs Squires at the time, or whether or not a cooling off period should have followed before the discussions about the resignation package took place.

In these circumstances, we have come to the conclusion that the appeal should be allowed and the matter remitted to the Industrial Tribunal for further consideration as to whether or not, in all the circumstances of the case, there was in fact a resignation.

Mr Scuplak referred us to the decision in Martin & Yeomen Aggregates [1983] IRLR 49 where Kilner Brown J. and colleagues gave a consideration as to whether or not there was a dismissal in the circumstances then considered. Briefly, in the heat of the moment, a director of a company dismissed an employee with whom he had had a sharp difference. A few moments after the director recalled the dismissal. The employee then sought to argue that he had in fact been dismissed. We do not find the dicta in that case helpful when we have to test whether there was a resignation in the circumstances which we have outlined.

Mr Barnett had a second string to his bow. That was this. He submitted that an offer to resign (which the Tribunal found had been made) is not a breach of contract, but an invitation to treat which once accepted brings a contract of employment to an end by means of resignation. The Tribunal must have found there was a mutual determination. If this is right, a question arises whether such agreement is genuine. It is accepted that either where improper pressure has been brought to bear by an employer or where there is an agreement "to leave or be dismissed", that would amount to dismissal. The Tribunal failed to consider whether either of these alterations applied here.

We do not think it necessary to make findings on this alternative submission because there were no findings below as to whether any pressure was brought on Mrs Squires when she was with the brothers on 14 June. On the further hearing this point can, if it is thought appropriate, be explored further and if thought appropriate no doubt will be. In the circumstances, we make no findings on that second ground.

That said, having regard to our findings on Mr Barnett's first ground of appeal, we will remit this matter to the Industrial Tribunal which heard it before, if that is possible, so that they can give this matter further consideration. To that extent, this appeal succeeds.