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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Schoon v Unison [1995] UKEAT 850_95_1412 (14 December 1995)
URL: http://www.bailii.org/uk/cases/UKEAT/1995/850_95_1412.html
Cite as: [1995] UKEAT 850_95_1412
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At the Tribunal
HIS HONOUR JUDGE H J BYRT QC
MR L D COWAN
MR P DAWSON OBE
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant APPELLANT IN PERSON
JUDGE BYRT QC: On 25 May of this year, the Industrial Tribunal for London (North) determined a preliminary point in this case and came to a conclusion unanimously that they had no jurisdiction to entertain the Applicant's complaint on the basis that his employment had been terminated by mutual consent. It is against that decision that Mr Schoon, the Appellant, appeals to us.
Quite shortly, the facts are that Mr Schoon was employed by the Respondent Union, UNISON, as an administrator at their Ealing Branch in West London. The narrative is that over a period of some two years or thereabouts, Mr Schoon had had problems with his fellow employees and latterly with his managers. In paragraph 3 of the Tribunal's reasons, they say that, for the purposes of considering this preliminary point, they accepted Mr Schoon's contention that he had virtually been locked out of his job since the Spring of 1993.
In due course, following his absence from work for a period of time, the Tribunal found that he had referred his case to the District Officer of his union, Terry Hurst, and asked him to negotiate with the Union which employed him, the terms upon which he might be allowed to retire. There was a meeting between Mr Hurst and Mr Jack, who was the Respondent's Associate Regional Secretary. The outcome of it was that, on 10 August, Mr Jack wrote to Mr Schoon, saying that serious allegations had been made against him, and unless they were refuted, he would have to proceed to a disciplinary hearing.
The upshot of it all was that, on 17 August, following discussions between Mr Schoon and Mr Hurst, Mr Schoon wrote to Mr Hurst in the terms set out in the letter of that date. This was a document which was before the Industrial Tribunal and, quite plainly, they attached very considerable significance to it. In effect, it is an instruction to Mr Hurst to negotiate with the Union the terms upon which he would retire and it ends up by saying:
"I hope you can resolve the matter quickly to avoid any further damage to my health."
In the event, Mr Hurst passed that letter to Mr Jack and Mr Jack wrote back on 24 August. He indicated certain terms upon which the Union was prepared to accept a mutual termination of Mr Schoon's employment. He ends up by making plain that if the terms were rejected by Mr Schoon, then the investigatory procedures, preliminary to a disciplinary hearing, would have to be reinstated. Mr Schoon was given three days in which to deliver his reply.
After further discussion between himself and Mr Hurst, Mr Schoon wrote on 25 August stating that he accepted the terms of Mr Jack's letter and agreed that his services would terminate on 31 August.
When this matter was before the Industrial Tribunal, they, in our judgment, put their finger precisely on the difficulty in this particular case. The question was whether the attitude of the Union towards Mr Schoon, prior to and during the course of negotiations, was equivalent to the metaphorical pistol at Mr Schoon's head; that if he did not accept the terms the Union was spelling out to him for their consent to his resignation, they would be dismissing him.
The Tribunal decided that the the Union were not specifically saying that. They were saying that they would have to initiate disciplinary proceedings. In so finding, we are satisfied that they directed their minds to the main difficulty in the case. They then directed themselves to the right law and Mr Schoon, in the course of argument before us, has drawn our attention to the fact that the Union had in mind the case of Sheffield v Oxford Controls Co Ltd [1979] ICR 396 where it was stated that it was principally a question of causation. Could it be said that the employee had agreed the terms upon which he was to retire because he had little or no alternative but to do so? That is the question the Tribunal had to answer here.
This is a case in which the Tribunal considered the implications of the letters I have referred to, heard the evidence of witnesses, including that of Mr Schoon, over a period of some seven-and-a-half hours. What they refused to do, and this has undoubtedly concerned Mr Schoon, was to go into the details of the history prior to the commencement of this exchange of letters in order to assess the rights and the wrongs of the relevant relationships and to evaluate the pressures Mr Schoon was under when he wrote that letter of instruction to his own representative on 17 August, a letter which suggests that he was quite happy to agree terms and to retire gracefully.
The first point to be made is that the Industrial Tribunal clearly accepted, for the purposes of argument, all that Mr Schoon had to say about the unhappy state of affairs between himself and his fellow employees before the beginning of August. They accepted that he, in effect, had been locked out. They had to decide a difficult question of credit, namely, as to whether certain letters which were tendered by Mr Schoon to the Tribunal had or had not been sent. They had to come to a conclusion about that and, unhappily for Mr Schoon, they found against him on that difficult decision.
There is another point which is raised by Mr Schoon to the effect that, far from Mr Hurst acting on his behalf when negotiating with Mr Jack, Mr Hurst and Mr Jack were conspiring together to pervert the course of justice. We do not know whether that was ever raised as an issue before the Industrial Tribunal. We have observed that Mr Hurst gave evidence in support of the Respondent's case on that occasion but the probabilities are that he did so in order to be able to relate the history of the events in August and the basis of Mr Schoon's instructions to him.
What we have to decide, as an appeal tribunal, is as to whether the Industrial Tribunal erred in their application of the law. As we have indicated to Mr Schoon, and I think he fully appreciates, a point of law can also arise where the Tribunal comes to a finding of fact which can be said to be perverse by reason of the fact that it is a decision that no reasonable Tribunal could have come to. So we have been vigilant in our consideration to see whether a point of law of any sort has arisen. We are impressed by the way in which the Industrial Tribunal did put their finger on the central and crucial issue of this case. The fact that they did so quite plainly shows that they directed their minds to the essential and relevant factors that they had to consider.
In our judgment, they did direct themselves correctly on law and where they came to findings of fact, there is nothing about them which enables us to say that they were findings which no reasonable Tribunal could have come to. That being so, there is nothing which enables us to say that the Industrial Tribunal did not give this matter the closest of consideration or, indeed, that they erred in any way. It was a difficult case. We fully appreciate and understand the unhappiness and distress Mr Schoon experienced as a result of the deteriorating relationship between himself and his fellow employees over something like two years before the hearing of the Industrial Tribunal but, at the end of the day we, as an appellant tribunal dealing only in questions of law, can find no way in which we can take into account those factors in the context of the Industrial Tribunal's decision which, as I have said, we find to have been a valid decision, one which they reasonably could have come to. In all the circumstances, we must dismiss this appeal.