United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R DAVIS (Solicitor) Messrs K E Davies & Sons Solicitors Warley Chambers Warley Road Hayes Middlesex UB4 OPU


 


JUDGE H WILSON: This preliminary hearing of the proposed appeal by the original Applicant in these proceedings has been conducted on his behalf by Mr Davis, who appeared for him before the Employment Tribunal.

1. Mr Davis, on the Applicant's behalf, complains that the finding by the Tribunal that the Applicant had resigned and was not dismissed is a perverse finding and he expresses it in different ways. What it comes down to is an assertion that it was perverse.
2. We are faced with a position in which the Extended Reasons of the Employment Tribunal set out various matters to which we will come in a moment.
3. The background of the case is that the Respondent company had bought the business which had formerly been part of the Taylor Woodrow concern in 1998. At the time of the transfer, the TUPE Regulations were in operation and so the Applicant's employment was protected in that way.
4. The transfer having happened, the Respondent company tried to persuade the Applicant and others to accept changes in their contracts of employment. He complained that when he refused he was summarily dismissed with no disciplinary hearing, no notice or pay in lieu and no fair reason for the dismissal.
5. It is not in issue that the terms of the original contract contained a provision enabling and entitling the employer to change terms of contract at discretion and with discussion. The Respondent asserts that there were changes proposed and there were discussions. The upshot was that the Applicant resigned.
6. As we have already said, the decision of the Tribunal, having heard the evidence, was that the Applicant had resigned and was not dismissed. Mr Davis in support of his case refers to the fact that the Respondent's Manager had obtained the necessary authority to dismiss the Applicant, if necessary. That is what had happened with another employee just before the events to do with this Applicant. Those events are dealt with in the paragraphs of the Extended Reasons. In particular, at paragraph 4, the Tribunal state that by 2 September 1998:-

"4. …. we find that the Applicant indicated that he did not wish to remain with the Respondent. He resigned unequivocally."

And later on in paragraph 5, the paragraph concludes with the statement that:

"5. … the Applicant cleared his desk and left the company on 2 September."

Paragraph 6 states:-

"6. We are satisfied on the basis of the evidence put before us that the Applicant resigned, he was not dismissed. His complaint fails."

7. In the course of his submissions to us Mr Davis has conceded that there was evidence from the Applicant and from two witnesses on behalf of the Respondent company, about matters in general and, in particular, about the meeting on 2 September 1998. It is plain from what Mr Davis has told us that there was a complete conflict of evidence between the parties about what went on on that occasion. The Applicant was saying that he was dismissed and the Respondent's witnesses were saying that he indicated unequivocally that he resigned.
8. It is also plain from the Extended Reasons that the Employment Tribunal preferred the evidence of the Respondent company about this crucial issue. They had the advantage of seeing and hearing the witnesses giving evidence and being cross examined and it is not for this Tribunal to interfere with findings of fact by the Employment Tribunal. This was a finding of fact behind which we cannot go and accordingly, we cannot conclude that the matter would benefit or be carried further by full argument. It must be dismissed at this stage.