United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M GRASSAM (Solicitor) Messrs Carrick Carr & Wright Norwich House Savile Street Kingston Upon Hull HU1 3ES


 


MR JUSTICE LINDSAY: We have before us as a preliminary hearing the appeal of Mr Brian Reffin in the matter Reffin against Kingston Upon Hull City Council.

Mr Reffin had been employed by Hull City Council and he (in circumstances we do not need to develop at this stage) ended up not employed by Hull and on 22 October 1997 he lodged an Originating Application for unfair dismissal. At paragraph 9 (5) of that he says:

"The whole of the circumstances in which I was unjustifiably suspended from work and the failure of my employer to deal promptly with its investigation resulted in my position being totally undermined. I therefore resigned from my employment on the 31st August 1997 having applied for early retirement. I claim that the circumstances were such that I was constructively dismissed."

The matter came before the Industrial Tribunal at Leeds, under the chairmanship of Mr Latham, and the unanimous decision, promulgated on 5 February after a hearing on 16 January 1998, was that the Applicant's claim must fail as he was not dismissed as defined under the provisions of section 95 of the Employment Rights Act 1996.

The course that the reasoning took can be best summarised by looking at paragraph 6 of the Industrial Tribunal's reasoning which said:

"The Tribunal is of the view that, on the facts, the Applicant at no time terminated his employment. He merely applied for early retirement, which application for early retirement was approved by the Respondents and processed by them. They did not terminate his employment, neither did he."

Then, in paragraph 7, they say "there had been a mutual agreement to terminate" and they went on, in paragraph 8, to indicate that they had not gone on to consider the matters raised by Western Excavating v Sharpe [1978] IRLR 27, which discusses whether a dismissal can be regarded as a constructive dismissal. The reason why they did not decide that was that they took the view that there had been no dismissal.

The whole matter hinged upon the nature and effect of Mr Reffin's application for early retirement and Mr Grassam, on Mr Reffin's behalf, advances a ground of appeal in paragraph 6 (a), (b), (c) and (d) of the Notice of Appeal. We merely have to decide whether those grounds, or any of them, represent an arguable ground proper to go to a full hearing.

This is by no means an easy issue. On the merits one can see considerable argument that, if the Tribunal had gone on to consider Western Excavating, they would have determined that if there had been a dismissal, it could not, in any event, have been claimed by Mr Reffin to be a constructive dismissal. But that stage was never, it seems, fully reached because instead the Tribunal took the line that, as the Applicant at no time had terminated his employment but had merely applied for early retirement, there was no termination and therefore no dismissal. That we see to be an arguable point. Whether it will lead anywhere and whether, even if did, Mr Reffin would be able to succeed when Western Excavating comes to be considered are different matters.

But we do see that it is arguable that to say "application for early retirement, ergo no dismissal" is not enough of itself and Mr Grassam has drawn our attention to the passages in Birch and Humber v The University of Liverpool, [1985] IRLR 165, where at page 170 Ackner LJ, assumes in relation to an agreement, that there has been no coercion of any kind and where at page 172 Slade LJ spoke of "freely given mutual consent". If the Tribunal had, in terms, concluded that the circumstances here were such that there had been and could be regarded as being no coercion of any kind and that the consent was freely given, Mr Reffin would have found himself in difficulties even on this first point. But it seems that the Industrial Tribunal did not look into that aspect but simply said to themselves that an application for early retirement meant, of itself, and without more, that there could not be dismissal.

It is a point that is, we think, arguable. We express no view on the outcome of the argument, and we do allow Mr Reffin to go forward with real reluctance because there are very strong factors that suggest that, had Western Excavating been considered, Mr Reffin would have failed. It may therefore be that if the case is taken further that nonetheless Mr Reffin's case will run into the sand, but that is a matter for him. Simply asking ourselves whether it is proper to go to a full hearing, we say that it is.