United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M GRASSAM (Solicitor) Messrs Carrick Carr & Wright Solicitors Norwich House Savile Street Kingston-upon-Hull HU1 3ES
For the Respondents	MR J LEWIS (of Counsel) Instructed by: Mr P Dearing Civic Law Kingston-upon-Hull City Council The Guildhall Alfred Gelder Street Hull HU1 2AA


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the unanimous decision of an Industrial Tribunal held at Leeds which dismissed Mr Reffin's complaint of constructive dismissal which he made against his former employers, Hull City Council.

The tribunal found as facts the following. First, the applicant was subject to a final written warning, and had received a period of suspension during those disciplinary proceedings, and was aware that suspension was something that was available to the respondents in appropriate circumstances in disciplinary cases. They found that on 17th June 1997 the applicant alleged that he had received an injury at work, but the tribunal noted that the report relating to that injury was dated 2nd July 1997. He was then off work and telephoned in on 18th and 19th June saying that he would not be coming into work due to his injuries. On 20th June he did not present himself for work but instead went to Gloucester Crown Court to pursue an appeal against a conviction for a driving offence which had been heard at the Gloucester Magistrates Court in February 1997.

The applicant had not filled in the application forms for taking days off without pay. But he maintained that he had discussed what he was planning to do with his head of department. The tribunal concluded that it was not able to find as a fact on this point, as they did not hear evidence from the respondents. The procedure which required those particular forms had only been in operation since 1996 in any event, when there had been a change of headmaster.

Unfortunately for the applicant his appearance at the Crown Court was the subject matter of local press interest. Therefore the school became aware of where he was on that day. They thought that he had been off work sick due to the alleged injury. On becoming aware of the position the deputy headmaster wrote to the applicant on 25th June drawing attention to the position. A meeting was arranged for 26th June 1997, when the applicant gave an explanation for what had happened. The employers, not surprisingly, decided to carry out interviews with other members of staff, and that was done on 27th June. It became apparent to the employers that from those interviews that there were a number of matters which were in dispute and which were crucial in their determination of what should happen.

As a consequence, the applicant was summoned to a meeting on 2nd July, which was very short, for the purpose of suspending the applicant from employment, pending the conclusion of the investigation.

The suspension was on full pay. During that time he was required not to visit the school unless specifically asked to do so, nor to contact colleagues, pupils or anyone else associated with the case. He was told that he would be contacted as soon as possible regarding any further investigatory/disciplinary interviews. That was a letter sent to the applicant from the headmaster.

Immediately afterwards, the employers wrote to the Crown Court and to the Magistrates Court and received replies from both of them giving details of the relevant hearings. They acquired that information on or about 14th July. But during this period, that is from 2nd July onwards, the applicant had decided that he wished to enquire whether the facility for early retirement on age grounds was still available to him, notwithstanding that he was on suspension. The applicant reached the age of 60 in 1997. He telephoned a clerk in the respondents' authority, he did not even, so the tribunal found, say that he was taking that retirement for reasons that involved any allegation of breach of contract on the part of the respondents, or that he found the suspension to be untoward or improper. He merely stated that he was dissatisfied generally and wished to consider retirement. He was advised that he could still proceed to apply for early age retirement, notwithstanding his suspension, and he therefore requested the forms for application which were sent to him and which he received on 10th July 1997. He completed them on that day and dispatched them.

The tribunal were given copies of the forms in question. The document which the applicant completed on 10th July is headed "Teachers' Pension Scheme - Application for Teacher's Age Retirement Benefits". The applicant completed that form putting as the date of his retirement 31st August 1997". He completed section 9 headed "Future employment" and immediately under that box are these words:

"Any person knowingly making a false declaration is liable to prosecution"

The declaration contains a number of undertakings. The first:

"I apply for age retirement benefits under the teachers' pensions regulations"

and the last:

All the information I have given on this form is true to the best of my knowledge and belief"

and the applicant signed it. In other words he had been suspended for some seven to eight days at the time when he completed this document. When a person applies for age retirement benefits the employer is required to complete a certificate which was duly done by the respondents. The certificate reads:

"I certify that this teacher is retiring on the ground of age, that all the details given in Part B are correct and that contributions due under the teachers' pension regulations have been, or will be, deducted from salary."

Having completed the documentation, the headmaster wrote on 15th July 1997 to the applicant saying as follows:

"I was in the process of finalising investigations into the circumstances surrounding your absence on 20th June which resulted in your current suspension, when I was informed by the LEA [Local Education Authority] that you had decided to retire on age grounds, and had given your resignation to them.

In the circumstances I do not think that it would be appropriate for me to continue with disciplinary proceedings.

Can I thank you for the service which you have given to the profession over the years and wish you a happy retirement."

The headmaster also wrote to the Education Department of the Local Authority indicating that Mr Reffin had decided to retire and that he felt it inappropriate to continue with the disciplinary action.

In due course, the applicant completed a form seeking engagement as a supply teacher. In the form seeking such position, he was invited to say what the name of the school was that he had been working from or his present appointment. He completed that box by saying "retired" and then identified the school. At the end of that form of application for employment as a supply teacher he signed a declaration that the particulars he had given were true, complete and correct and he accepted that any false statements or material omission will normally lead to him being dismissed if appointed to the post.

At no time was the applicant specifically required to return to work, but he did so, and completed teaching duties for a further ten days during the summer term which finished at the end of July 1997. Therefore, he continued in employment beyond the end of that term in accordance with his contract of employment, and his employment ceased or terminated on as of 31st August 1997, which was the date he had put on his form for retirement. The tribunal said this:

"4.(n) Even if the Applicant felt particularly aggrieved at the way he had been treated at the beginning of July 1997, he still returned to work and completed his teaching duties after it was decided that the disciplinary proceedings should not proceed, and gave no indication to anybody that he was feeling aggrieved as to the way he had been treated or that he considered that any contract of employment that he had with the Respondents had been breached.

(o) The Tribunal noted that in his evidence, and in response to a question from his solicitor when asked what his reaction would have been if the application to retire had not been granted, the Applicant did not reply to the effect that he considered that his employment had been terminated in any event by way of the conduct of the Respondents, but replied that he would have to think about matters again. That, in the Tribunal's view, indicates that he had come to no such decision as to the termination of his employment at the time he applied for the age retirement."

They concluded:

"6. ... the Applicant at no time terminated his employment. He merely applied for early retirement, which application was approved by the Respondents and processed by them. They did not terminate his employment, neither did he."

The tribunal went on to say:

"7. ... The Applicant's solicitor confirmed that the Applicant maintained no other basis of dismissal, other than the provisions of that sub-section [s. 95(1)(c)], and therefore the Tribunal is of the view that, bearing in mind the onus of proof on the Applicant, he cannot satisfy the Tribunal that his employment has been terminated by him as he alleges, and therefore his application must fail.

8. In coming to this conclusion, the Tribunal would emphasise that they considered this point to be the starting point to an application for "constructive" dismissal, as it is colloquially called, and before the Tribunal has to consider the matters as set out in the guidelines contained in the case of Western Excavating (ECC) Ltd -v- Sharp. It was clear from the findings of fact in so far as the evidence had been given to the Tribunal that the Applicant might well have been in considerable difficulties satisfying those guidelines in any event."

The argument which was succinctly made on behalf of the appellant was that the Industrial Tribunal had erred in law in their approach. What they should have considered was whether the applicant's application for age retirement was itself made in response to the respondents' actions. They failed also to consider whether there might have been more than one reason for early retirement, and whether the availability of the pension was the effective rather than the sole reason for him leaving the employment. And the Industrial Tribunal failed to consider the primary reason for the applicant's resignation which effectively precluded it from considering at all the various matters set out in Western Excavating v Sharp. Therefore, the Industrial Tribunal did not properly apply the test to ascertain whether this was a constructive dismissal case within the meaning of s. 95.

For the employers it was submitted that the tribunal had approached the matter entirely correctly as they were entitled to do. What was really significant was that the employee had applied for age retirement without in any way indicating that he was accepting or purporting to accept the employer's alleged repudiatory breach of contract.

It seems to us perfectly clear from the facts as we have recited them, that this appeal is wholly without merit. This is a case where in order to obtain age retirement benefits the applicant had to complete a form in which he was indicating that he was leaving his employment through retirement. He had to verify that that was the position, otherwise he would not have obtained the pension that he was seeking in those circumstances. How can it be, therefore, that having acted on that basis, he can now retain the money which he received from the pension scheme and seek to recover compensation from his employers.

In this case we have no doubt that the approach taken by the Industrial Tribunal was entirely appropriate. In every constructive dismissal case there will have to be shown to be a causal connection between the alleged breaches of contract by the employer and the leaving of service by the employee. In other words, in order to get a case off the ground the employee must be able to say that the conduct of the employer drove him out of his employment.

On the facts of this case, the tribunal were entirely sensible to approach the question on the basis of asking themselves whether that causal connection had been established. If it was not, then whatever the nature of the alleged breaches of contract by the employer, if they did not have causative effect, there cannot have been a constructive dismissal within the meaning of the Act. The reason why they thought it sensible to approach the question in that way, was no doubt because they perceived there to be an inherent contradiction between the applicant's position as he was leaving, namely his verified assertion that he was seeking age retirement, and the position which he was taking in the Industrial Tribunal. Having regard to that position it was sensible of them to investigate the causation question to see whether there was indeed any link. On the evidence before them it was manifestly obvious that although the applicant may have felt aggrieved by the way he was treated, this was not a case where he was seeking to leave his employment because of the way he had been treated. He never indicated that that was the position, and even when he was asked in evidence about it, gave an answer on which the Industrial Tribunal were entitled to base their decision.

Accordingly, we have no hesitation in rejecting the submissions made on behalf of the appellant. The answer to them is simply that the Industrial Tribunal did not get to the stage of having to investigate whether the breaches of contract were fundamental and matters of that kind. They were able to dispose of it on the simple basis that they did not believe that the applicant left his employment otherwise than on the basis which he had asserted at the time when he ceased to be employed.

Furthermore, it does seem to us most unlikely that the applicant could possibly establish any breach of contract by the employer. The employer was carrying out an investigation into a potentially serious disciplinary offence which had been committed against the background of a final written warning having been given. They suspended him on full pay. He waited only a period of eight days before seeking age retirement. If his case is that the employers left him alone for an unnecessary long period, we reject that suggestion. Eight days was not an unduly long period. They were making enquiries as they were entitled to do and did not themselves receive information until 14th July. That was not an unduly long period, bearing in mind that the suspension was on full pay.

In any event, it seems to us that the applicant cannot both assert and obtain on the basis of that assertion a pension and assert facts which would have disentitled him to make the application to the pension trustees.

This is a bad case as it seems to us of an applicant seeking to have his cake and eat it at the same time. I would have considered it probable had this matter been investigated, that either the applicant was estopped from contending that he was not leaving voluntarily as a retiree, or that he was guilty of a misrepresentation which would have entitled the Secretary of State in charge of the statutory pension scheme to recover from him the amounts which have been paid. In these circumstances, we do not need to reach a conclusion on either of these matters. But it does seem to us that not only is there no legal basis for the submissions which have been made to us, but the applicant's appeal lacks any merit in fact. Accordingly the appeal is dismissed.