United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D A PEARL (of Counsel) Messrs Doyles Solicitors 150 Minories London EC3N 1LS
For the Respondent	MR P MARSHALL (of Counsel) Messrs Howe & Spender Solicitors 40 Station Road Port Talbot SA13 1JS


 


MR JUSTICE KIRKWOOD: This is an appeal by an employer from a finding on a preliminary issue by an Industrial Tribunal at London (North) sitting on 20th January 1997 that the employee, Mr Spender, was dismissed from his employment; and that the tribunal had jurisdiction to hear his application that the dismissal was unfair. The tribunal gave its extended reasons for that decision on 23rd January 1997.

The case arose in this way. Mr Spender was employed by Rugby Travel Specialists from September 1993. On 26th October 1995, according to his evidence, Mr Spender found on or via a computer a letter which he said showed that Mr Doran, the Managing Director of the Company, intended to dismiss him. The letter was not produced to the tribunal and in fact Mr Doran had denied its existence.

On 27th October, Mr Spender did not go to work. He told the Company that he was ill. In fact he went to Cardiff for an interview about another job. He told the tribunal that he was also interested in a transfer to Manchester, and that he was using his application for other jobs as a weapon against the Company.

On 30th October, a Monday, Mr Spender did not go to work. However, a meeting was arranged between Mr Spender and Mr Doran for six o'clock in the evening that day.

There was no dispute before the Industrial Tribunal that there had been some problems with regard to Mr Spender's employment, although the nature of that and the detail of that were not gone into before the tribunal. There was, however, a dispute about what occurred at the meeting. It seems to have been Mr Doran's case that Mr Spender had resigned without giving any notice and thereby let him and the Company down. Mr Doran's case was that he did not dismiss Mr Spender. The Industrial Tribunal plainly preferred Mr Spender's account upon which it relied in its extended reasons. And, indeed, in respect of another detail the tribunal found that Mr Doran's evidence was not credible. On Mr Spender's account, which the tribunal accepted, Mr Doran had opened the meeting by saying that he regarded Mr Spender as a nice person and, but for that, he would have shown him the door. Mr Doran then asked Mr Spender what he thought should happen in the circumstances. As the meeting went on, Mr Spender asked if it would be better if he handed in his notice. Mr Doran then told him that if he did that he, Mr Doran, would give him a reference confirming his popularity as a work person. Then after some further discussion, Mr Spender offered to resign and was told that his resignation would be accepted if he put it in writing. At the conclusion of the meeting on 30th October Mr Doran handed Mr Spender a cheque dated Friday, 27th October 1995. That was in relation to money due and money in lieu of notice. There was also a form P45, which showed that employment ended on 27th October 1995. Mr Doran told the tribunal that the cheque was dated 27th October 1995 because he heard from fellow employees that Mr Spender was looking for another job, and that his employment would indeed end on 27th October 1995. Mr Doran instructed Mr Spender to date his letter of resignation 27th October 1995 and he apparently instructed the accounts department to show on the records that Mr Spender's employment had terminated on 27th October 1995.

The day after the meeting, on 31st October, Mr Spender posted a short letter of resignation which he had, as instructed, dated 27th October 1995. It was received by the Company on 1st November 1995. What it said was this:

"Further to our meeting I wish to inform you in writing that I wish to cease my employment with Rugby Travel.

I have enjoyed my two year term of employment with the company."

Also, however, on 31st October 1995, Mr Spender, on second thoughts, wrote a letter to the Company withdrawing his letter of resignation and that was delivered by hand to the Company also, as the tribunal found, on 1st November 1995.

On that same day, 1st November 1995, Mr Doran wrote to Mr Spender confirming:

"... my acceptance of your verbal resignation, subsequently confirmed in writing."

There was no finding of fact by the tribunal as to the precise sequence of those letters, or as to whether the letter from Mr Spender of 31st October 1995 had come before Mr Doran before Mr Doran's letter of 1st November was dispatched.

The tribunal also found that there was no dispute that at the meeting on 30th October Mr Spender was in a poor state of health, and was not his true self. However, we have been told in the course of argument that the appellant in fact disputes the words "poor state of health". But it seems to us that we really cannot go behind the Industrial Tribunal's extended reasons on that aspect.

The tribunal directed itself as to the law. It considered Sothern v Frank Charlesley & Company [1981] IRLR 278 and Kwik Fit (GB) Ltd v Lineham [1992] IRLR 156. It summarised what it considered to be the principles to be drawn from those cases in these terms:

"16 ... when words used by a person are unambiguous words of resignation and so understood by the employer, in the normal case the employer is entitled to accept the resignation. The question of what a reasonable employer might have understood does not arise. ... where words or actions of resignation are unambiguous, an employer is entitled to treat them as such and accept the employee's repudiation of the contract at once, unless there are special circumstances arising due to personality conflicts or individual characteristics, words spoken or actions expressed in temper or in the heat of the moment or under extreme pressure, or the intellectual make-up of an employee may be such special circumstances. Where special circumstances exist, before accepting a resignation at its face value, an employer should allow a reasonable period of time to elapse, such as a day or two, during which facts may arise that cast doubt upon whether the resignation was really intended and can properly be assumed."

In presenting argument on behalf of the appellant, Mr Pearl said that the tribunal had correctly summarised the principles to be drawn from those two cases.

As it seems to us, an employer is entitled to rely on the unambiguous words of resignation, unless special circumstances exist that should put the employer on enquiry as to what the employee meant and intended. Whether such special circumstances exist is a matter of fact for the Industrial Tribunal. And when special circumstances are found to exist, the reasonableness of the employer whether in acting on the resignation or in allowing time for reflection, again is a matter for the Industrial Tribunal.

Here the tribunal made the following findings. First that Mr Doran should not have accepted Mr Spender's resignation at face value. Having regard to Mr Spender's demeanour, by which we take the tribunal to refer to Mr Spender's poor state of health, the employer should have asked Mr Spender to consider his resignation carefully before putting it in writing. Next, that it was extraordinary that Mr Doran had ready and waiting a final salary cheque dated 27th October 1995. Third, it was extraordinary that Mr Doran should have given Mr Spender a month's salary in lieu of notice. If it were right that Mr Spender resigned, as Mr Doran had contended, Mr Spender would not have been entitled to any money in lieu of notice. In any event, the contract of employment required only two weeks notice.

The tribunal rejected Mr Doran's evidence that he made the payment out of the goodness of his heart. The tribunal found that the resignation was not a true resignation, but a resignation engineered by Mr Doran. The tribunal found as a fact that in truth Mr Spender was dismissed.

The appellant's case is that the finding of special circumstances was in effect perverse. The tribunal seems to have relied upon demeanour of Mr Spender, taken as I have said to refer to or also to his health, as to which there was, contrary to the finding of the tribunal, a dispute. Secondly, attendance that day by Mr Doran with a cheque ready made out. Thirdly, an intention by Mr Doran to dismiss if resignation could not be procured. Those do not, it is argued, amount to special circumstances known to the employer that should have excited his suspicion as to the genuineness of the resignation.

It seems to us that Mr Spender's health and well-being that day was a factor the tribunal was entitled to take into account. It has indeed to be taken into account in the context of the other findings the tribunal made. In particular there is the finding that what occurred was engineered by the employer. The tribunal found in effect that Mr Doran engineered this resignation. Indeed in the Notice of Appeal it is conceded that if Mr Spender had not resigned, Mr Doran would in fact have dismissed him. What occurred looks very like what one of the industrial members of this Appeal Tribunal has described as "white collar jostling".

In considering the perversity argument, for that is what it is, we have in mind too that the tribunal saw and heard Mr Doran and Mr Spender and plainly formed its own views about them. In particular it was able to form, and did form, its own impression of how the meeting on 30th October went, and what was the flavour of it. The tribunal was entitled to and did have in its mind the whole of the circumstances of the resignation in deciding that special circumstances existed. We are by no means persuaded that it reached a decision as to that that was not open to it.

The appeal then proceeds on the premise that there was a finding of special circumstances. The main argument is that the tribunal then went too far in what it required of the employer. In paragraph 17 of the extended reasons, the tribunal said:

"17 It is quite clear that Mr Doran should not have accepted Mr Spender's resignation at face value. Seeking Mr Spender's demeanour, he should have asked Mr Spender to consider his resignation carefully before submitting it in writing."

In the Kwik Fit case, to which I have referred, the Industrial Tribunal had held that there had been a duty on the employer to check that the employee's true intention was to resign when he had walked out in anger and said that he would take the employer to an industrial tribunal for unfair dismissal. On appeal the Employment Appeal Tribunal held, and I refer to the headnote:

"... that the industrial tribunal had placed too high a burden on the employers in finding that there was always a duty to ascertain an employee's true intention where there was an unambiguous resignation expressed in the heat of the moment."

The circumstances here, of course, are very different. Of the essence of these cases is the question of reasonableness on the particular facts. The Industrial Tribunal did not here suggest a specific line of enquiry. It found that Mr Doran should have advised Mr Spender to think carefully; that he did not do so is of course consistent with the impression and finding of the tribunal that what Mr Doran was really bent on was procuring the removal of Mr Spender from employment.

We are not persuaded that the Industrial Tribunal erred in what it said in the second sentence of paragraph 17 of the extended reasons, so that we do not find that Mr Pearl's argument on this aspect invalidates the conclusion reached by the Industrial Tribunal.

The subsidiary argument is that, being perhaps precise and perhaps technical, it was the time of receipt of the letter of resignation, that is the "27th October" letter, received on 1st November, upon which the tribunal should have focused in asking whether in the special circumstances the employer had acted reasonably. Had they done so, it is said, and had they considered that the employer should have enquired further, it would have been necessary to look then to the letter of 31st October 1995 delivered by hand on 1st November 1995. That letter says:

"Following your demand yesterday that I tender my resignation as an alternative of being dismissed by you, I do not resign and withdraw any letter to that effect that will come to you."

It is said on the appellant's behalf that that letter makes an assertion of fact that is not true. Accordingly it is said the employer was or would have been entitled reasonably to take that untruth into account in not allowing the resignation to be retracted.

This line of argument we think takes us far away from the realities and practicalities of what actually occurred. But following it nonetheless, we have to say that it is the view of the industrial members that such a letter would in fact have put a reasonable employer on alert that the meeting of 30th October 1995 was itself flawed. We do not accept the appellant's argument as to what conclusion would or might well have been reached if this line of enquiry had been followed.

The final point relied upon by the appellant goes to the question of whether the tribunal disadvantaged itself by precluding evidence going to the history of Mr Spender's employment and the difficulties that had risen in respect of it. What Mr Pearl says for the appellant is that if the tribunal had listened to the range of dissatisfactions that the employer had with Mr Spender, then the tribunal might have reached a different conclusion as to what occurred at the meeting on 30th October 1995 and the effect of it.

There are two difficulties in the way of putting forward that argument.

The first is that correspondence we have been shown today demonstrates clearly that it was in fact the appellant's contention that the tribunal should deal with this case by a preliminary hearing on the issue of dismissal or resignation. The tribunal did not accede to that application. But when the case came on for a directions hearing, the trial of the originating application was planned in such a way that in fact the question of dismissal or resignation would be heard first. And if the tribunal found dismissal, then at a further hearing it would consider the question of unfairness; and if that were found too, the consequential matters. So the fact that there was a split-hearing, was something that the appellant had actually wanted.

The secondly difficulty is that this argument is not raised in the Notice of Appeal. Where some procedural irregularity is alleged, it often occurs that the observations of the Chairman of the tribunal are sought as to those allegations. That of course has not happened, because Mr Pearl is actually seeking to put forward an argument that is not in the Notice of Appeal. In putting it forward, Mr Pearl recognises that this is somewhat of a speculative ground. There can only be speculation as to what impact a fuller hearing might have had as to what impact a rehearsal of all the background facts, many of which were disputed, may have produced. And although we have given this aspect of the appeal some careful thought, we are satisfied that there is no ground established to begin to justify upsetting the finding of the Industrial Tribunal.

It is quite clear that the decision before the Industrial Tribunal was a fine one. We cannot interfere with its decision unless we are persuaded of an error of law by the Industrial Tribunal; or it is demonstrated to us that the tribunal reached a conclusion which no reasonable tribunal could have reached on the evidence before it and the facts as found by it, and the proper application of the law. None of those matters have been established in a fashion that satisfies us in any way, and the consequence of that is that the appeal has to be dismissed.

No order for costs.