United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr K Hogg, Solicitor Of- Messrs Allcourt Solicitors 1 Carmondean Centre Carmondean LIVINGSTON EH54 8PT
For the Respondents	Ms M Paterson, Employment Consultant Of- MENTOR Services 134 West Regent Street GLASGOW G2 2RQ


 


LORD JOHNSTON:

1. This is an appeal from a decision of the Employment Tribunal sitting in Edinburgh against a finding to the effect that the appellant applicant had not been dismissed from her employment with the respondents.
2. The issue before us focussed on a very short but sharp point, namely, whether the findings of the Tribunal, to the effect that she had resigned her employment, were adequately expressed and supported. In this respect the relevant finding is as follows:-

"The question for the Tribunal was whether the applicant had been dismissed or resigned. By a majority the Tribunal took the view that the applicant had resigned in the course of her telephone call to Mr O'Rourke. It seemed to them probable that, given that she had started her full time post so soon after the call, and she knew that the full time post was available when she phoned, her intention was to resign from the respondents' employment. While the Tribunal could not tell what words were actually said, it accepted that Mr O'Rourke was entitled to infer resignation from the general terms of the conversation."

3. The immediate problem we have with this finding, is that, intrinsically, it does not indicate any issues of credibility against the background of a letter written the following week (A5) by the appellant which indicates quite clearly that she still regards herself as in employment. It is highly significant that in the finding in question the Tribunal could not tell what words had actually been used. We find it difficult, if not impossible, to understand how they were therefore entitled to infer resignation from the general terms of the conversation in that respect.
4. As regards the relevance of the letters, we consider that the word "she" on line 17 of page 3 is probably a misprint for "he". Certainly, this would accord with commonsense inasmuch as it is highly unlikely the person would not remember writing her own letter.
5. Ms Paterson, appearing for the respondents, valiantly sought to argue that, at the end of the day, the Tribunal had properly addressed the issue with adequate reasoning. We do not consider this to be the case, not least because of the presence of the letter (A5) and also the inadequacy of the wording of the finding in question.
6. In these circumstances the submission by Mr Hogg that this decision cannot stand must be preferred. Nor do we consider it appropriate for the matter to be referred back to the same Tribunal since they have already expressed a view, albeit, inadequately. We therefore reluctantly are forced into the position that this case will have to be re-heard before another Tribunal.
7. In these circumstances this appeal will be allowed, the decision will be quashed and the matter remitted to a differently constituted Tribunal for a fresh hearing.