United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS ULELE BURNHAM (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE ALTMAN:

1. This is an appeal from the Employment Tribunal sitting at Stratford on 9 November 1999 when they found that the Appellant was not dismissed and they accordingly dismissed his complaint. Miss Burnham has represented the Appellant under the ELAAS scheme. We wish to express our indebtedness to her for the giving of her time and considerable expertise, without remuneration. In presenting the case on behalf of Appellant, she has argued the case fully and has raised every matter that can properly be raised on behalf of the Appellant. The matter came before the Employment Tribunal at a time when the Appellant had started new employment, consequent, he says upon:

"His wrongful dismissal by the Respondents."

He had submitted a detailed originating application and he did not wish to jeopardise his new employment. Accordingly the Tribunal presided over by a Chairman sitting alone, proceeded in his absence on the information before them. In addition to his originating application, they had a letter of 31 August which was a denial of what had been said by the Respondents in their Notice of Appearance, so as to show that those facts were not admitted.

2. The position of the Respondents, who attended by Mr Cherry to give evidence to the Employment Tribunal, was that the Appellant himself terminated his own employment and the Employment Tribunal believed the evidence of Mr Cherry that it was a surprise when the Appellant told him on 6 May that he would like to 'call it a day'. Mr Cherry told the Employment Tribunal that this came as 'quite a shock'. This was very early on in the Appellant's employment. He began on 26 April 1999 and this conversation took place on 6 May. But it is argued on behalf of the Appellant that the evidence before the Employment Tribunal was that the Appellant was dismissed. Particular reliance is placed upon a letter of 16 August 1999, from the Respondents to the Employment Tribunal in which they set out their case in the following words:

"He (that is the Appellant) informed Mr Cherry that he was generally unhappy with his role and felt that he had nothing more to offer the job. Mr Cherry said if that is how he felt at this early stage, having only worked for 10 days for the company, he agreed with him it would be better all round if he left. Mr Addis then offered to be a caretaker, however due to the disruptive problems already caused by Mr Addis' actions and the time he had been employed in the job this offer was not accepted."

3. By caretaker was meant, and it appears was understood to mean, that the Appellant was offering to remain in post until his proper notice had expired. He was offering to stay in post so that the Respondents could use that time to find a replacement. That it is argued was the conversation that amounted to a dismissal. It is suggested that the process was first of all an expression of the dissatisfaction and uneasiness in a new job, which is something that happens from time to time, and secondly as we understand it, the Appellant would say that instead of responding by seeking to resolve any difficulties, the Respondents said instead that it would be better all round if he left. Those words, it is argued, amounted to a dismissal, and this was re-enforced by the Respondent's subsequent refusal to accept the offer of the Appellant to be a caretaker.
4. When the Employment Tribunal Chairman came to approach the matter, having described the surprise of Mr Terry and accepted his evidence that he was sorry that the Appellant was leaving, he said the following: -

"If Mr Addis is to succeed, he must satisfy me on the balance of probabilites, first that he was dismissed as he contends. There is a direct conflict of evidence between the parties. I have no reason to disbelieve Mr Cherry. He has taken the trouble to appear before me and has given his evidence frankly and in my view honestly. I accept what he says which, in any event, seems to fit more within the documentary evidence I have before me than the untested assertion by Mr Addis that he was dismissed."

It is important to note however, that in the originating application of the Appellant himself, having set out all the concerns that he had about his employment, he said this: -

"From all of this I expressed my concerns to Mr Cherry on that day by telephone. His reaction was not concern but very much matter of fact, who in turn was not the least bit concerned nor sympathetic and from this I expressed my wish to leave and in doing so, and this is the important part, I categorically said 'I would caretake' implying that I would work my notice."

5. So that there was not only the documents which I have been referred but also the case put forward by the Appellant that he was expressing his wish to leave. The letter to which I have referred is an account of what happened which the Employment Tribunal would take into account along with the rest of the evidence before it. But although in certain circumstances saying to an employee 'you'd better go' or 'it would be better if you are going' could be words which could amount to dismissal. There is nothing of magic within the words it seems to us, and in the context of that paragraph they are consistent, and it seems to us more consistent, with the general proposition that this was a general discussion in which it was not the employer who was telling the employee to leave but that the employer was accepting the employee's decision, as possibly being the best decision in the circumstances. The Respondents words followed the decision of the Appellant to leave. They were not the cause of it; they were simply the of it.
6. Accordingly we reject the proposition that as a matter of law, the only proper construction to be placed upon that letter is that there was a dismissal. Therefore we have come to the conclusion that it cannot be said that the Employment Tribunal made any error of law in reaching the decision they did, on the facts that were before them. Accordingly, there is no basis for an appeal to the full Tribunal and this appeal falls to be dismissed at this stage.
7. We will adjourn generally any application for leave to appeal.