United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M SCOTT (of Counsel) Instructed by: North Islington Law Centre 161 Hornsey Road London N7 6DU
For the Respondent	MR D BASU (of Counsel) Post Office Legal Services Impact House 2 Eldridge Road Croydon CR9 1PL


 


JUDGE H WILSON

1. This has been a full hearing of the appeal brought by the original Applicants against the Decision of the Employment Tribunal sitting at London North on 28 July 1999 when they unanimously found that the Applicants were not dismissed.
2. The background to the matter was that quite early on during 1998 the Applicants, who were father and son and both postmen in the same depot, had been involved in an altercation of some kind with a member of management. As a result, the disciplinary procedure had been operated some months after the event and the result of the disciplinary procedure was that both the Applicants were dismissed for gross misconduct. Unusually, but we are told because of the length of time the matter had been pending, that dismissal was on 12 weeks notice which would run out on 18 January 1999.
3. Meanwhile, the Applicants both entered an appeal under the disciplinary procedure and that appeal was due for hearing on 16 December 1999. The hearing on that date was postponed because of the need to view the original of a video of the incident. Meanwhile also, a strike ballot had been taken which resulted in a vote for a strike in support of these two Applicants in due course.
4. All of these events were happening alongside far larger matters at the depot, where negotiations were going on between The Post Office on the one hand, and the union on the other, for agreement on new work practices. Those negotiations came to a head on 15 January 1999 when the agreement was signed. It appears that it was quite a weighty document of 69 pages and one of the appendices concerned the possibility of voluntary redundancy or transfer to other depots because both sides recognised that some of the new practices might not be acceptable to some employees. The possibility of voluntary redundancy or transfer or early retirement would be open to all employees in post at 1 January 1999. To an extent therefore, it is plain that the agreement about new working practices was shadowed by the outstanding dispute over these two Applicants, and that was recognised.
5. There was a separate agreement reached between The Post Office and the union by which The Post Office agreed that the two Applicants should be eligible for the voluntary redundancy provisions irrespective of the outcome of their appeal. The union, in return, agreed that whatever the outcome of the appeal, there would be no strike action. That was a separate agreement reached at the same time as the major agreement about new work practices and the union had proposed to The Post Office on that date - 15 January - that it should be they who consulted the Applicants, The Post Office agreed. The Applicants denied before the Tribunal that they were told the proper terms of the agreement, but the union representatives went back to The Post Office with news of the acceptance by the Applicants of the voluntary redundancy terms.
6. There then came into being the only written evidence of the separate agreement. It was in the form of letters sent to each of the Applicants, the terms of which are set out in paragraph 7 of the Extended Reasons. The letter sent to each of them stated:-

"You have received notification on 26 October 1998 that your services were to be terminated on the grounds of misconduct. Your last day of service would be 18 January 1999. However since that decision was made an accord has been agreed between management and the CWU relating to changes with both methods and working practices at PRDC which allows for staff in post as at 1 January 1999 that become surplus to opt for redundancy. You have expressed a wish to exercise that right and accordingly your services will now be terminated on redundancy grounds and your last day of service will be 29 January 1999."

The Applicants signed the bottom of the letters which set out the precise amounts to be paid in the following terms:-

"I acknowledge receipt of your letter of 25 January 1999 and confirm that I am taking the redundancy terms that are on offer"

7. The Employment Tribunal found that the claim that the trades union representative had not told the Applicants of the possibility that they could in fact have gone on with their appeal, and still have had the opportunity to seek early voluntary redundancy was not acceptable. They say why they come to that conclusion in paragraph 12 of their Decision.
8. The appeal has been conducted today on behalf of the Appellants by Mr Scott and The Post Office has been represented by Mr Basu. Mr Scott relied upon the terms of his amended Notice of Appeal and Mr Basu relied upon the terms of his Skeleton Argument against the appeal. We have considered what they have written, and also what they have had to say.
9. It seems to us that the important and vital matter is that the burden of proof in this case rested on the Applicants. By their finding the Employment Tribunal rejected the evidence of the Applicants. Mr Scott, on behalf of the Appellants, asserts that they were not entitled to do that because there is no other evidence. There was no evidence from the trades union official, and indeed it seems that one of the ones who telephoned was an unknown official. We cannot accept that contention: it is for the Employment Tribunal to decide which evidence it accepts. We do not agree that, in rejecting the evidence of the Applicants, the Tribunal was left with no evidence at all. They were in fact left with the terms of the letter which had been sent to the Applicants, the bottom of which each of them had signed, accepting the terms of the voluntary redundancy.
10. It is common ground that the terms negotiated with regard to the two Applicants were that their appeal could go on. If it failed, they could still go for voluntary redundancy, or if it succeeded, then they would have a number of other options. It is also common ground that The Post Office left it to the union to tell the Appellants what the terms of the agreement were. It is further common ground that there was nothing in writing before the confirmatory letters to which we have referred.
11. The Appellants complained that they were not properly told what the terms of the agreement were. So far as The Post Office was concerned, in our judgment, it was entitled to proceed on the assumption that the Appellants would be told fully by their union representatives what was on offer and to act accordingly, once they received the answer. If there were any shortcomings, as far as the union was concerned, it does not seem to us that that can give rise to any blame attaching to The Post Office. Whether or not there is any redress, so far as the union is concerned is an entirely different matter, but it seems to us quite plain that that is where the responsibility if any lies. Accordingly this appeal must fail and we therefore dismiss it.