United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL GREATOREX (of Counsel) instructed by: Messrs DLA Solicitors India Buildings Water Street Liverpool L2 0NH
For the Respondent	MR GARY BOGART (The Respondent in Person)

SUMMARY

Unfair dismissal – dismissal/ambiguous resignation

ET was required to decide a preliminary issue whether the Respondent agreed that the Claimant could withdraw his notice. In a majority judgment, they failed to address that issue, but held that the Appellant was on some (unclear) other basis dismissed. Remitted to a different tribunal to decide all issues (i) did he give notice (ii) was it withdrawable/withdrawn (iii) was there an agreement to such withdrawal (iv) if dismissal was it fair?

THE HONOURABLE MR JUSTICE BURTON

1. This has been the hearing of an appeal by the Liverpool Community College, as Respondent, against the majority decision of the Employment Tribunal at Liverpool in respect of a claim by the Claimant, Mr Bogart, that he was unfairly dismissed.
2. The issue that was before the Tribunal was a preliminary issue, and although in an uncorrected judgment they recorded a conclusion that the Claimant was unfairly dismissed, that was corrected because that was not in fact what ought to have been - or could have been - the decision after the preliminary issue. At best, they could have decided, and this is what is now recorded, that the Claimant was dismissed. The intention was to have a preliminary hearing which, if it had been resolved in favour of the Respondent, would have meant that the case fell away, and if it was resolved in favour of the Claimant - as it in fact was by a majority, namely that he was dismissed - the case would have gone forward to a further hearing to see whether he was unfairly dismissed. That course, namely the holding of a preliminary issue, is sometimes valuable, certainly where there is a large case with evidence on both sides which might be avoided. It might well have been a correct decision here, where the underlying issues related to alleged conduct of the Claimant, which, it seems, was going to be investigated or explored by the employer but for the alleged resignation of the Claimant. Thus, one can see why it should be that in order to avoid that evidence being examined, there could have been what may have been thought to be a short cut in this case of a preliminary issue.
3. A real preliminary issue is one which resolves the case whichever way it is answered, but this was a preliminary issue which would only have resolved the case if it was found in favour of the Respondent, but it was not. It is this finding, in favour of the Claimant, which is now appealed before us. The disappointing fact, from the point of view of both Claimant and Respondent, is that the Tribunal, it is quite plain, did not do that which they were supposed to have done. In a letter dated 22 August 2005 from the Regional Secretary of the Tribunals to both parties, the issue which the Tribunal had to decide was described succinctly as follows:

"The issue for the Tribunal will be whether the respondent agreed that your notice could be withdrawn. The Tribunal will no doubt be made aware of the allegation that preceded the tendering of notice but will not investigate whether that allegation was well founded. Accordingly it would not appear necessary to hear from these witnesses. "

In those circumstances, witness orders which were being sought for the point of view of deciding whether there had been a fair dismissal, were perfectly sensibly not made.

4. Both parties prepared for a hearing at which the one issue would be resolved, namely, whether the Respondent at the time agreed that Mr Bogart's notice could be withdrawn. There is no doubt that he had given a document which purported to be a notice, in a letter which is in the bundle before us dated 16 December 2004, but the issue which this Tribunal was supposed to decide was whether the Respondent agreed that that notice would be withdrawn, by implication before it had been accepted.
5. We shall turn briefly to the law on the topic in a moment, but suffice it to say that the issue which is causing us to allow this appeal is that although that was the question which this Tribunal was supposed to have resolved, it did not do so. The majority decision and its reasons are extremely succinct. In the first sentence, the correct question is recited. The Tribunal was to consider whether the Respondent agreed that Mr Bogart's notice could be withdrawn. However, the Tribunal did not answer that question. The Tribunal simply recites, in extremely short form, the following:

"We have heard evidence from both sides, we have come up with a majority judgment (Mrs Prescott and Mr Wentworth) in favour of the claimant."

They then indicate the nature of that majority judgment:

"Mr Bogart was not given a proper opportunity to withdraw his notice, and this is backed up by the evidence given by Mrs Allen that he was misled in that she as his line manager said that personnel in her view would not action his letter prior to the Christmas closure. Mr Bogart was told that in her opinion he had time to consider his actions if he wished to. The minority judgment (the Chairman) is that he did have an opportunity to consider his actions."

6. It is totally clear, in those circumstances, that the Tribunal did not resolve the question as to whether the Respondent agreed that Mr Bogart's notice could be withdrawn. If anything, the implication is that the Tribunal decided that there was no agreement that it could be withdrawn; that Mrs Allen had given an opportunity as understood by the Appellant for him to seek to withdraw the notice, but that he had never done so, perhaps because that opportunity was, as the majority appears to have thought, an insufficient one. Whatever may be the correct application of the law to those kinds of questions (e.g. as to opportunity, adequate or otherwise, to withdraw) – and no law is recited in the majority judgment – no answer is given, unless it is possibly an implied "no", to the question that was asked.
7. Mr Greatorex, for the Appellant, while submitting that the Tribunal judgment should be set aside, submits that we should substitute our conclusion that the Respondent did not agree that Mr Bogart's notice could be withdrawn, by derivation from the implication to which we have referred. We are entirely clear that that is an inappropriate course. He himself has pointed out how exiguous the reasoning is in the judgment, and we are in no position to reach ourselves a conclusion that there was not an agreement by the respondent, albeit it does look as though that might well have been the decision the Tribunal would or should have come to if they had addressed their mind to it.
8. We must set aside this judgment, so that proper consideration can be given by another Tribunal. There is no point in sending it back to the same Tribunal, first because it seems that the disagreement between the majority and minority may be the cause of the inadequate reasoning, but also because this matter must now be considered afresh.
9. However, while we are sending the matter back, it would be undesirable, in our judgment, if it was sent back simply for a rehearing of this preliminary issue, which may or may not be the right question in any event. There has already been a substantial passage of time since this first attempt at a preliminary issue. If this matter is now to be sent back, it is not appropriate for there to be another preliminary issue. Preliminary issues sometimes, as we earlier indicated, save time but not where they have resulted in an appeal and a remission, and now, whatever might have been sensible first time round, the whole question must be resolved one way or the other. We consequently propose to give some short guidance to the fresh Tribunal as to what appear to us to be the issues for the new Tribunal to resolve. Not all those issues are necessarily contested. It is not the purpose of our setting out this list to suggest that any of the answers to the questions are contested or difficult, but this appears to be the order in which the Tribunal must address the questions, whether or nor they are in issue before them.
10. The first question is, did the Appellant resign? In his skeleton argument which, albeit unrepresented, Mr Bogart has put forward before us today, he refers to authorities which would be relevant, or might be relevant, on the issue of whether there was a resignation. Barclay v City of Glasgow District Council [1983] IRLR 313 and Kwik-Fit (GB) Ltd v Lineham [1992] IRLR 156.
11. On the assumption that he did resign, the next question would be: can the Claimant avail himself of any exception to the rule that a notice, once given, cannot be withdrawn unilaterally? There is accepted to be the line of authority containing the case of Martin v Yeomen Aggregates Ltd [1983] IRLR 49. There may or may not be other exceptions to that general rule.
12. Thirdly, on the assumption that his resignation was not effectively unilaterally withdrawn, was his withdrawal of his resignation agreed? This is the issue which the Tribunal was supposed to resolve, and such authorities as Riordan v The War Office [1959] 3 All ER 552 and Harris and Russell Ltd. v Slingsby [1973] ICR 454 would appear to be relevant.
13. Fourthly, if he was dismissed, in the sense that he did not resign or that he did successfully withdraw that resignation and/or withdrawal of his resignation was agreed, then was he fairly dismissed?
14. Those issues must now all be resolved, and we remit this matter, allowing the appeal to a different tribunal for that purpose.