United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 924_95_1806

Appeal No. EAT/924/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 June 1996

HIS HONOUR JUDGE PETER CLARK

MR P R JACQUES CBE

MR T C THOMAS CBE

---

MR J F LAMBERT          APPELLANT

LIVERPOOL CITY COUNCIL          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant APPELLANT IN PERSON

For the Respondents MR T KENWARD

(Of Counsel)

Solicitor

Liverpool City Council

PO Box 88

Municipal Buildings

Dale Street

Liverpool

L69 2DH


 


JUDGE CLARK: This is an appeal by Mr Lambert against a decision of the Liverpool Industrial Tribunal sitting on 8 June 1995, dismissing his complaint of unfair dismissal on the ground that he was not dismissed by the Respondent Council. Extended Reasons for that decision are dated 20 July 1995.

From 1970 until 1991 the Appellant was employed as a Teacher of Geography at Clubmoor School, Liverpool. In 1991 he was redeployed, against his wishes, to what was called support services.

On 21 April 1994 the Respondent gave written notice of termination of his existing contract of employment as a teacher to take effect on 31 August 1994. That letter contained an offer of alternative employment under Local Government Officer Conditions of Service on a protected salary basis for four years. The precise nature of the alternative employment was not spelled out. The letter concluded:

"For those over the age of 50 years, you will retain the right to apply for teachers' premature retirement compensation to be effective up until the expiry of the period of notice to terminate your teacher's contract of employment."

The precise terms of the Respondent's premature retirement scheme were not put in evidence and no findings of fact as to the nature of the scheme are contained in the Industrial Tribunal's reasons.

Mr Lambert enlisted the assistance of his trade union in challenging the decision to terminate his teacher's contract. That challenge was dismissed, first by the Council's Disputes Panel on 27 July 1994, and further, by way of an appeal hearing held on 31 August 1994.

The appeal having been dismissed on 31 August, the Appellant promptly handed a completed application for Teachers' Premature Retirement Benefits to Mr McNamara, a Personnel Officer employed by the Council. Receipt of that application form was acknowledged by a letter from Mr McNamara to the Appellant dated 31 August 1994 in these terms:

"Dear John,

Just a note to confirm that I have passed your pension application to Shirley Conway, and asked her to arrange your early retirement with a voluntary severance payment with effect from today's date. I will ask Shirley to contact you with an estimate of when you may expect to receive payment."

At no stage did the Appellant take up the Respondent's offer of alternative employment. His employment ended on 31 August. His application for premature retirement benefits was accepted by the Council and he has since that date enjoyed those benefits.

He commenced these proceedings by an Originating Application presented on 15 November 1994. In response the Council contended in their Notice of Appearance that the termination of employment was by way of mutual agreement. It submitted that its approval of the application for early retirement is on the authorities incapable of amounting to a dismissal.

Having outlined the history, the Industrial Tribunal express their conclusions in paragraphs 6 and 7 of the reasons in this way:

"6. As stated above the respondents deny that the applicant was dismissed. The question for this Tribunal is what had the effect of terminating the applicant's employment with the respondents. We are unanimous that the respondent's letter of 21 April 1994 did not have the effect of terminating his employment. That letter informed him that his conditions of service as a teacher and his entitlements would terminate from 31 August and that in accordance with the local government officer's conditions of service he would be offered a position as local government officer on the terms set out in that letter.

7. When the applicant learnt that he had been unsuccessful in his final appeal he immediately applied for teacher's premature retirement benefits. The respondents accepted his application and as from 31 August 1994 he ceased to be employed by the respondents. In our unanimous decision he ceased to be employed by the respondents because there was a consensual agreement that he would cease to be employed by the respondents. He had taken advantage of the teacher's premature retirement benefits with the respondent's consent."

In support of the Industrial Tribunal's finding of no dismissal, Mr Kenward, Counsel for the Respondent, has referred us to a number of authorities, the effect of which he helpfully summarised in the form of six propositions. Based on those authorities we take the relevant law to be as follows:

(1) The burden of proof lies on the Applicant to prove a dismissal.

(2) The question for the Industrial Tribunal is: who really terminated the employment? See Martin v Glynwed Distribution Ltd [1983] ICR 511. That is essentially a question of fact for the Tribunal.

(3) Has the contract been terminated by the employer, with or without notice?

(4) Notice, once given, cannot be unilaterally withdrawn. See Riordan v The War Office [1959] AER 552 and Harris & Russell v Slingsby [1973] ICR 454.

(5) It is a question of fact for the Industrial Tribunal whether consent to the withdrawal of notice was given expressly or by implication by the employee. See Scott v Coalite Fuels [1988] ICR 355 and Gateshead Metropolitan Borough Council v Mills [1995] EAT 610/92 Unreported.

It therefore follows that the question of whether or not the employee was dismissed, or whether the contract was terminated by mutual agreement is essentially one of fact for the Tribunal, provided it asks itself the correct questions in arriving at its conclusions.

Rule 10(3) of The Industrial Tribunal Rules of Procedure 1993 requires Industrial Tribunals to give reasons for their decisions. This does not mean that each and every dispute of fact and legal submission must be specifically dealt with in the reasons. However, the parties must be able to tell why they have won or lost.

As Sir John Donaldson MR put the matter in Martin v Glynwed at page 520 G:

"... The duty of an industrial tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation for them, but it is not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the industrial tribunal addressed its mind and why it reached the conclusions which it did, but the way in which it does so is entirely a matter for the industrial tribunal."

We think that Mr Kenward accurately summarises the issue for us by asking this question: was it open to the Industrial Tribunal to form the view that acceptance of early retirement was consistent with implied withdrawal by consent of the employer's notice of termination? In our judgment, it is quite impossible to properly answer that question on the basis of this Tribunal's reasoning. There is no indication expressly or by inference as to what questions of law were addressed by the Industrial Tribunal in reaching its conclusion that there was a consensual agreement that the Appellant would cease to be employed by the Respondent. Did the Tribunal consider the question of consensual withdrawal of notice? If so, what factual basis existed for such an agreement? Was it express or was it to be implied? If the latter, how does that implication arise? What is the status of the application for premature retirement benefits? When was agreement reached as to that? If such agreement post-dated the effective date of termination under the notice given by the employer on 21 April 1994, how can it affect the expiry of that notice on 31 August? Was the employment consensually extended beyond that date? If so, how was that agreement reached?

Left with so many questions to which we can discern no answers in the reasons, we find ourselves in the regrettable position of having to conclude that this Tribunal has failed to give adequate reasons for its conclusion that there was here no dismissal. In these circumstances we are left with no alternative but to allow the appeal and remit the case to a fresh Industrial Tribunal to re-hear the issue of whether or not the Appellant was dismissed, applying the principles of law and posing the questions to which we have adverted in this judgement, in order to answer the question, who really terminated the employment?