United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANTS


 


JUDGE PETER CLARK: This is an appeal by National Blood Authority against a decision of the Newcastle Industrial Tribunal sitting on 5th June 1996 that the respondent employees, Miss Jordan and Mrs Portus were unfairly dismissed on 31st January 1996.

Solicitors acting for the appellant wrote to the Registrar on 7th November 1996 indicating that they would not be attending this preliminary hearing. They ask us to take into account the written submissions contained in that letter, together with the grounds set out in the Notice of Appeal. That we have done.

The factual background, so the Industrial Tribunal found, was this. Both respondents were very long serving employees of the appellant. They worked in a department which used a computer database to invite members of the public to attend blood donor sessions.

Dr Doughty, the Operations Manager, in consultation with colleagues, decided to alter the way in which the computer was used. He thought that the respondents' jobs would be radically changed as a result of this innovation, and that they were not trained for the proposed re-organisation. He also took the view, not from any formal request by the respondents, but as a matter of impression, bearing in mind their ages and length of service, and conversations in the office, that each wanted early retirement.

In that frame of mind he called them to a meeting on 27th November 1995 to put to them terms for early retirement. They were not warned in advance of the purpose of the meeting.

The two interviews on that day took a similar course. Both respondents were shown the proposed new organisation chart and an estimate of the financial terms available for early retirement. Each was stunned by the news and believed that there was no place in the new organisation for her. No alternative position was offered. No suggestion of retraining was made.

In fact, the tribunal found, neither had any intention of taking early retirement due to their financial commitments. Dr Doughty, in good faith, had simply misread the position.

The tribunal record that in evidence Dr Doughty said that if they had wanted to stay they could have taken less well-paid temporary jobs, but that was viewed by the tribunal as an afterthought. It simply did not occur to Dr Doughty at the time that the respondents would not willingly accept early retirement.

They remained in employment until 31st January 1996 without demur. They trained a replacement, much younger than they, who had joined the appellant as a result of an advertisement.

The tribunal concluded that the respondents had been dismissed and in the absence of any reason for dismissal being put forward, that those dismissal were unfair. It is against those findings that this appeal is brought.

The principal ground of appeal, developed in a number of ways, is that in deciding whether the respondents had been dismissed by Dr Doughty, or had voluntarily resigned the employment on agreed terms as to early retirement, the tribunal focused on the subjective understanding of the respondents and did not apply the objective test of the reasonable listener's understanding of what Dr Doughty was saying on 27th November 1995.

We accept that this is the appropriate test. See Sovereign House Security Services Ltd v Savage [1989] IRLR 116 (CA), and that during the course of their reasons the tribunal record the subjective understanding of the respondents. However, we are not satisfied that the tribunal wholly failed to consider the question objectively.

At paragraph 5 of their reasons the tribunal find that Dr Doughty gave the respondents the strong impression that there was no alternative to early retirement. In so finding it seems to us that the tribunal is going beyond finding what the subjective understanding of the respondents was; it was finding that objectively that was a reasonable understanding.

In paragraph 8 of the reasons the tribunal say that:

"The applicants resigned because they saw, and were given, no alternatives."

Again, it seems to us that the tribunal are finding not only did the respondents subjectively understand there to be no alternative; that was what they were given to understand. In other words, a reasonable listener would have had the same understanding had he been present at the interviews.

In these circumstances we unable to detect any error of law in the tribunal's approach. Accordingly, this appeal must be dismissed at this stage.