United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G B SANDS (REPRESENTATIVE)


 


JUDGE PETER CLARK: This is an appeal by Mr Burns, the Applicant before the Stratford Employment Tribunal which sat at 18th June 1998, against that Tribunal's decision, promulgated with extended reasons on 3rd September 1998, dismissing his complaint of unfair dismissal against the Respondent, the London Borough of Waltham Forest ("the Council"). We note from the Respondent's PHD form that it has said the correct Respondent is the Governing Body of Selwyn Infants School. Nothing terms on the correct identity of the Respondent.

The Appellant was employed as a caretaker at that school from 1st November 1983 until 31st March 1998. In December 1995, he made a complaint to the Employment Tribunal against the Council of racial harassment. That complaint, ("the First Complaint") was due to be heard by the Tribunal on 24th and 25th November 1997. Prior to that hearing, the Council commenced disciplinary proceedings against the Appellant. In the course of those disciplinary proceedings the Appellant took advice from a Mr Arian, a legal adviser with the Waltham Forest Racial Equality Council. Mr Arian entered into negotiations with the Council on behalf of the Appellant in connection with the then current Employment Tribunal proceedings.

As a result of those negotiations, a COT3 Agreement was drawn up with the involvement of an ACAS Conciliation Officer. The Tribunal observed in their reasons that the Appellant was unhappy about entering into the Agreement and told Mr Arian that he did not want to lose his job, but to be redeployed. Mr Arian said there was no alternative and that the Appellant could not add to the agreement that he was signing under duress. The Council at the time knew nothing of these misgivings. Despite them, the Appellant signed the agreement on 15th December, knowing that under the terms of the agreement who would lose his job.

The terms of the agreement, which is before us, provide that in full and final settlement of the complaint of the Appellant against the Governing Body of the school, it was agreed that among other things, Mr Burns would be given 16 weeks notice to terminate his employment on 31st March 1998, he was to receive a total sum of £6,250 and by clause 6, there will be no further recourse to the Industrial Tribunal or any other legal body in relation to Mr Burns' employment at Selwyn Infants and Junior Schools or the Council.

On those facts, the Tribunal concluded:

1. That the Appellant was precluded by virtue of the COT3 Agreement from bringing his Second Complaint, which was the complaint of Unfair Dismissal presented on 11th March 1998;
2. If not, the employment was terminated by agreement. There was no dismissal to found an Unfair Dismissal claim;
3. Even if there was a dismissal, it was for some other substantial reason and was fair.

Against that decision, he now appeals. The basis of the appeal is that the conduct of the Tribunal proceedings was procedurally irregular and unfair in three respects which are set out in an Affidavit sworn by the Appellant in these proceedings in 3rd November 1998.

The first point is that at the start of the Hearing before the Employment Tribunal, he contends that he was trying to put forward his case but was informed by the Chairman that the Tribunal was not interested in events leading up to the dismissal, only the fact that there was a dismissal and whether that dismissal was fair or unfair. The Tribunal also took into account his First Complaint, which he submits had no bearing on the present Unfair Dismissal case.

Secondly, he complains that the Respondent brought to the Tribunal the ACAS Officer who had been involved in the negotiated settlement. But then the Council asked if the ACAS Officer was not needed he could leave and return to work. The complaint is that the Appellant's side was not consulted on this matter and were denied the right to question him.

Thirdly, it is said that the Appellant's representative, Mr Sands, who appears before us, warned the Tribunal before the Hearing that in the agreed bundle of documents there was a confidential letter which, we are told, was a letter from the Council's medical advisor to the Appellant and that the letter would only be produced if the Tribunal felt it was legal to do so. However, the Tribunal allowed it to be read by the Council.

The Chairman has commented on those three allegations by a letter dated 11th November 1998. We have taken into account his comments. It seems to us that first, the Appellant was given an opportunity to deal with the issues which were relevant to the Unfair Dismissal claim before the Tribunal. Secondly, that it was open to the Respondent, having arranged for the attendance of the ACAS officer, not to call him. The Appellant did not intend to call him and therefore, we see nothing in that point. Finally, so far as the letter from the Council's medical officer is concerned, we have had some difficulty in understanding precisely the submission made by Mr Sands on this aspect of the matter. But it seems to us that that letter formed no part of the Tribunal's reasoning in this case, and to that extent, it appears to be immaterial.

It follows that we are not satisfied that this Appeal raises any arguable case for a finding of unfairness in the Tribunal's conduct in these proceedings, such as would vitiate its eventual decision.

Finally, in fairness to Mr Sands, who has done his level best as a lay representative before this Tribunal, whose jurisdiction is limited to correcting errors of law on the part of Employment Tribunals, we have looked at the three bases on which the Tribunal dismissed this Unfair Dismissal complaint. We can see that it might be arguable that the COT3 agreement, which was directed to settlement of the First Complaint, does not, on its wording, strictly exclude the Appellant's right to bring a complaint of unfair dismissal. However, we have carefully considered the second ground on which the Tribunal dismissed the complaint, namely, that the employment was terminated consensually. In reaching that conclusion, the Tribunal plainly had in mind the Appellant's case, that he entered into the COT3 agreement under duress. They rejected it. We remind ourselves of the approach laid down by the Court of Appeal in Martin -v- MBS Fastenings [1983] ICR 511, where it is said that it is essentially a question of fact for the Employment Tribunal whether the agreement which led to the termination of the employment was reached under such duress that it should be treated as a dismissal. This Tribunal found that there was not that degree of duress such as to lead to that conclusion and we do not feel able to interfere with that factual finding. In these circumstances, we have concluded that this appeal must be dismissed at this Preliminary Hearing stage.