SAS Service Partners v Whalley [1992] UKEAT 561_91_1911

EAT
SAS Service Partners v Whalley
[1992] UKEAT 561_91_1911 · 1992-11-19

LORD COULSFIELD:

The Respondent in this appeal was employed by the Appellants from April 1980 until December 1990, when his employment came to an end. He applied to an Industrial Tribunal complaining that he had been unfairly dismissed. His application was heard at Manchester by an Industrial Tribunal on the 16th July 1991. The hearing dealt only with the question whether the Respondent had been dismissed that being a matter in dispute. In September 1991 the Industrial Tribunal, held by a majority, that the Respondent had been dismissed and the Appellants now appeal against that decision.The Respondents carry on business as providers of catering services to the public, including services at Manchester Airport, where the Respondent was employed. On Friday 14th December 1990 the Respondent attended a disciplinary hearing at which allegations of misconduct were made against him. He was represented by a trade union representative, Mr Flynn, at that hearing. The result of the hearing was that he was summarily dismissed. That decision was confirmed by a letter dated 18th December 1990. The next stage of the proceedings was an appeal. There was another letter, also dated 18th December 1990, by which the Respondent was sent his P45 and a cheque for outstanding monies, and was also notified that the appeal hearing would take place on 24th December. The hearing did take place on that date. The person conducting it was a Mrs Barber. The Respondent was again accompanied by Mr Flynn. A note of the proceedings was produced to the Industrial Tribunal but there was some dispute as to its accuracy and some conflict of evidence as to the precise course of proceedings at the hearing. It is clear, however, that there was some proposal by the Respondent that he should be allowed to treat the termination of his employment as a resignation and that the Appellants agreed to that proposal. The position is so recorded, in a letter dated 24th December 1990, which states:
"I acknowledge receipt of your resignation dated 14th December, 1990 and also note your intention not to work the required period of notice.
As agreed at our recent meeting you will be paid any holiday pay and lieu days outstanding, any further monies/payment in lieu of notice will be withheld due to the circumstances in which you resigned."The reference to the resignation dated 14th December 1990 is a reference to a letter which bears that date but which was apparently signed by the Respondent after the conclusion of the appeal hearing. In so far as the question of monies outstanding is concerned, the terms set out in the letter of 24th December, do not significantly differ from those set out in the original letter of dismissal of 18th December which stated that, although dismissal for gross misconduct was usually a dismissal with forfeiture of all rights, it had been decided on this occasion that, in view of the Respondent's length of service, he would receive his holiday pay and any lieu days outstanding.The conflict of evidence concerned with the precise sequence of events at the appeal hearing. The note of the proceedings, which we have mentioned, records at least part of what was said at those proceedings. There was discussion of the alleged misconduct on the part of the Respondent which had given rise to the proceedings. Towards the end of the note, the following appears:
"Jane:We are just going over what was said at the disciplinary do you have anything further you would like to add?
Bernard:I would like to say something. Mike does not really want his job back he would like to be allowed to resign so that when references are asked for it will look as though he left of his own accord.Jane:If you would like to leave for a few minutes I can consider what has been said."The person referred to as "Jane" is Mrs Barber and "Bernard" is Mr Flynn. Thereafter the note records that there was a five minute break, after which Mrs Barber said:
"I have considered what you asked for and I will allow you to resign, however, you must stipulate in your resignation that you do not wish to be paid in lieu of notice and that you accept the fact that the only payment you will receive will be your holiday pay and lieu days as agreed at the disciplinary hearing."
Those requirements were met in the letter dated 14th December which the Respondent signed.In his evidence the Respondent said that he had told his union representative that he would resign rather than be dismissed, if all else failed; that there had been an interval during which he and Mr Flynn left the room in which the proceedings were being held but were called back; that Mrs Barber said that she had decided to uphold the dismissal; and that it was that it was only at that stage that the Respondent's representative made the request for him to resign. Mrs Barber, Mr Flynn and another witness, however, agreed in saying that as the note of the proceedings bears, the interval came after the request to be allowed to resign. Mr Flynn said that by the stage at which the request was made, he had concluded, that the appeal would not succeed.The Industrial Tribunal differed in their views of the evidence. Both the Industrial Members thought that there had been a dismissal but did so for different reasons. One Member agreed with what Mr Flynn had said, that is, that the appeal was going to fail anyway, as was confirmed by a reading of a note of the proceedings, so that the Respondent had no alternative but resignation. This Member took the view that the note of the meeting was accurate as regards the sequence of events, that is, that the offer of resignation took place before the interval. The other Member accepted the Respondent's evidence, that is, accepted that Mrs Barber had told the Respondent that the appeal was refused, and it was only at that stage that Mr Flynn asked for an opportunity to resign, that of course being contrary to Mr Flynn's own account of the position. The Chairman took the view that Mrs Barber had not reached, and certainly had not intimated, a decision on the appeal, so that the appeal was still live, and that the Respondent had elected to resign and not been forced into a resignation. The Chairman appears to accept, although he does not specifically say so, that the offer of resignation came before the interval in the proceedings.In the argument on behalf of the Appellants it was pointed out, as is the case, that the Tribunal had made a finding in fact that the Respondent had told Mr Flynn, at the appeal hearing, that he had a job to go to and wished to resign. It was argued that, in consequence of what the Respondent had said and the instructions given to his union representative, him willingness to resign was brought about by a desire not to have a dismissal on his record. Consequently the resignation was not a result of pressure on him to resign or be dismissed. It was further argued that one of the Members of the Tribunal and the Chairman had both reached the view that Mrs Barber had not arrived at her decision whether or not to uphold the appeal at the time when the to offer of resignation was made and that this view should have led to the conclusion that the original dismissal had been replaced by a termination of the contract by a mutually agreed resignation. It was not, it was suggested, a case of pressure to resign but a case of a voluntary negotiation leading to a resignation although it was accepted that the terms of the resignation did not differ, in so far as the monetary consequences were concerned, from the terms on which the original dismissal had been carried out. It was further argued that the Chairman's analysis was correct and that he had correctly reached the view that it was not the Appellants who had terminated the contract.We should deal first with the Chairman's analysis. The Chairman refers to Martin v. MBS Fastenings (Glynwed) Distribution [1983] ICR 511, in which the Master of the Rolls said that the proper question, in circumstances such as these, is, "who really terminated the contract of employment?" The Chairman took the view that, once an appeal had been made against a dismissal, the dismissal was suspended; if the appeal was allowed, the employee would be re-instated and would normally receive full back-pay, while if it was decided that the original decision to dismiss was correct, then the dismissal would take place on the original date. The Chairman then went on to add, however, that the fact that there had been a dismissal of the Applicant in the present case, on 14th December 1990, was not relevant for a consideration of this preliminary issue of dismissal since the dismissal was suspended pending the outcome of the appeal. It seems to us that the Chairman's statement of the law, as it is set out in the case of J Sainsbury Ltd v. Savage [1979] ICR 96, and approved in the West Midland Co-operative Society Ltd v. Tipton [1986] ICR 192. What is said is those cases in that the employee, or the contract of employment, is suspended, not the dismissal. The only significance of this point, is that it may have led the Chairman to say that the dismissal was not relevant. In our view, to say that is to go much too far. The Chairman stated the correct question, namely, who really terminated the contract of employment? That question is, as was made clear in the case of Martin supra, in particular in the judgment of Sir Denys Buckley, a question of fact, and all the circumstances of the case must be relevant. It must therefore be relevant that there had been a dismissal which, unless the appeal was successful, would have effect from its original date. We may note at this point that it was suggested on behalf of the Respondent that in view of the law as stated in the J Sainsbury v. Savage case, the true position was that the contract was terminated by a dismissal on the 14th December and the subsequent proceedings were not truly relevant to the question whether or not there had been a dismissal for the purposes of the present proceedings. We did not, however, allow that argument to be developed since it was not a point taken before the Industrial Tribunal.The question for the Industrial Tribunal was, as the Chairman correctly said, who really terminated the contract? We were also referred to the case of Staffordshire County Council v. Donovan [1981] IRLR 108, but that was a case which arose from very different circumstances and is not, in our view, of direct assistance for the purposes of the present case. The two Industrial Members of the Industrial Tribunal differed from one another in one respect, which is not unimportant, because one of them thought that the decision to uphold the dismissal had actually been announced, whereas the other thought that it was only imminent. Looking at the circumstances as a whole however, the position is that there had been a dismissal; that the hearing had come close to a conclusion; that in the judgment of the trade union representative of the Respondent the appeal would fail a judgment which, in our view, is entirely consistent with a reasonable reading of the record of the hearing and of the evidence; and that there was no difference between the terms on which resignation was permitted and those on which the original dismissal was made. In the circumstances, despite the difference between the views of the two Members of the Tribunal we have, come to the view that they were entitled to conclude that the true position in this case was that there had been a dismissal.In these circumstances we shall refuse this appeal.