United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1331_95_0305

Appeal No. EAT/1331/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3 May 1996

Before

HIS HONOUR JUDGE PETER CLARK

MRS R CHAPMAN

LORD GLADWIN OF CLEE CBE JP

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MR C H FOX          APPELLANT

BASS TAVERNS LTD T/A BASS TAVERNS NORTH WEST          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR T KIBLING

(Of Counsel)

Messrs Maxwell Entwistle & Byrne

Solicitors

26 Sherborne Square

Huyton

Liverpool

L36 9UR


 


JUDGE CLARK: The Appellant commenced employment with the Respondent on 1 January 1989. That employment terminated in October 1994. The issue was whether the Appellant was dismissed, or whether the contract was terminated by mutual agreement, in which event there was no dismissal and the Industrial Tribunal had no jurisdiction on that basis to entertain his complaint of unfair dismissal.

At the relevant time, the Appellant was employed as the Manager of the 5th Avenue Public House in Paradise Street, Liverpool. He took up that position in 1992, when it was owned by the Respondent. In October 1993 the 5th Avenue Public House was transferred by Bass to Mercury Inns. On 1 September 1994 it reverted to the Respondent. On each occasion the Appellant's employment was transferred, first to Mercury, then back to the Respondent.

The background to his leaving the employment is set out in the Extended Reasons of the Liverpool Industrial Tribunal dated 30 October 1995. Following the transfer at the beginning of September 1994, the Appellant had a meeting with a Mr Dalzell, the Area Manager of the Respondent. That took place on 7 September 1994 and the Appellant put forward a business plan for running the house. Mr Dalzell suggested that the Appellant put his proposals to Mr Webster, the Retail Director, at a meeting on 12 September. Mr Webster was not impressed by the plan proposed by the Appellant and he told him so at that meeting on 12 September. That disheartened the Appellant. There was then a discussion about his future employment. That discussion included possible severance terms. But the Tribunal find that Mr Webster did not tell the Appellant how much his severance payment would be. What he did say was that the Appellant would not be made redundant, since on a further sale of the house, his employment would again transfer to the new owner. After that meeting the Appellant left to consider his position.

The Tribunal found that he took these matters into consideration. First, he found the prospect of running the house under the plan proposed by Mr Webster to be unattractive. Secondly, his partner was expecting a child and the accommodation above the house was unsuitable for a baby and finally, it seems, the Appellant was in discussion with another prospective employer about the possibilities of alternative employment. The following day on 13 September, he telephoned the Respondent and indicated that he would take severance. As a result there was a meeting on 14 September, at which terms of severance contained in a letter of that date were discussed. We have seen that letter. It is headed "Mutual Termination of Employment" and begins:

"This letter is to record the terms which we have discussed and agreed in the course of our meetings/conversations on 12th and 13th September 1994 concerning the mutual termination of your employment with effect from 31st October 1994."...

The letter went on to set out various terms. He was not required to work after 22 September, although he would be paid until the end of October 1994. During that period he was to retain the Justices License for the 5th Avenue. Following termination he was to receive a lump sum payment of £2,257.41 without deductions. He agreed to vacate the premises by 22 September. Under the heading "Acceptance" are these words:

"The severance payment is accepted by you in full and final settlement of all claims of any nature which you may have against Bass Taverns or any of its officers or employees arising out of or in connection with your employment with Bass Taverns or its termination."

At the end, Mr Webster signs the letter as does the Appellant, under this statement:

"I accept the above terms in full and final settlement of any claims against the Company arising out of my employment or its termination."

The respective cases advanced before the Industrial Tribunal are set out in paragraphs 3 and 4 of the Reasons. The Respondents case was that this employment was terminated by mutual agreement. The Appellant's case was that he was "railroaded" into reaching the agreement set out in the letter of 14 September 1994, and that he did not consent to his employment ending. In those circumstances he contended that he had been dismissed for the purposes of Section 55 of the Employment Protection (Consolidation) Act 1978.

Having considered those rival contentions and the facts as they found them, the Tribunal concluded in paragraph 8 of the Reasons:

"In these circumstances we have come to the conclusion that the applicant has not satisfied us on the balance of probabilities that he entered into this agreement under duress; it is therefore a valid agreement in law which amounts to a termination of his employment by mutual agreement."

Mr Kibling, who appears on behalf of the Appellant at this Preliminary Hearing, takes essentially two points in the appeal. First, whether the agreement contained in the letter of 14 September 1994 is void as being contrary to Section 140 of the 1978 Act as amended. Secondly, whether the Industrial Tribunal misdirected itself in considering the question of dismissal under Section 55(2)(a). We are invited to consider those two points against the backcloth of his first submission, that the Industrial Tribunal failed to give sufficient reasons for their decision in their Extended Reasons. We have considered the guidance contained in the Court of Appeal decision in Martin v Glynwed Distribution Ltd [1983] ICR 511 and the subsequent analysis of both the questions in this case by this Appeal Tribunal in Scott v Coalite Fuels & Chemicals Ltd [1988] ICR 355.

From these authorities we derive the following principles:

(1) The question of whether or not termination was by voluntary mutual agreement (no dismissal) or caused by pressure from the employer forcing the employee to resign (dismissal) is essentially one of fact for the Industrial Tribunal. Absent perversity, this Appeal Tribunal has no power to interfere with the Industrial Tribunal's decision.

(2) The fact that the parties reach agreement to terminate their relationship does not render that agreement void. Section 140 goes to the Industrial Tribunals jurisdiction to hear a complaint. That jurisdiction cannot be ousted by an agreement between the parties which does not comply with the detailed requirements of a compromise agreement, as defined in the Section as amended. However, where no point is taken by the Respondents as to jurisdiction, Section 140 has no application. (See Scott 370 B-E).

Applying those principles, we are satisfied that this Industrial Tribunal reached a permissible conclusion that the employment had been terminated by mutual agreement, having assumed jurisdiction to consider whether or not there had been a dismissal. The Respondent did not contend that the Tribunal was precluded from considering the application at all on the grounds of the agreement. Their case was that the Applicant was entitled to be heard, but they took a preliminary point that there had been no dismissal. We have considered Mr Kibling's submission that these Extended Reasons are insufficient for the purposes of Rule 10(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. We cannot accept that submission. We think that the issues between the parties are plainly set out; that the necessary findings of fact have been made, and that a conclusion has been drawn that this was termination by mutual agreement. It was not a dismissal.

We can see no fault in the Tribunal's form of decision. In these circumstances we are unable to find any arguable points of law to go to a full hearing and we must dismiss this appeal.