Marshall v Endersby & Anor [1994] UKEAT 868_93_0302

EAT
Marshall v Endersby & Anor
[1994] UKEAT 868_93_0302 · 1994-02-03
MR JUSTICE MUMMERY (PRESIDENT) : This is an Appeal against the unanimous decision of the Industrial Tribunal held at Southampton on 23, 24 and 25 August 1993.For reasons notified to the parties on 15 September, the Tribunal held that the Applicant, Mr Marshall, was not dismissed from his employment by the London Borough of Sutton, his employers. The Tribunal found that he had resigned on 7 October 1992 and his application accordingly failed.Mr Marshall was dissatisfied with the decision. By his notice of appeal dated 26 October 1993, he stated as the grounds of his appeal as follows:
"It could not be a resignation dated on 7 October 1992 to take effect on the same date when my contract clearly states that 2 months notice must be given on either side. It was a dismissal."
And, secondly:
"Due note was not taken about the defectiveness of the Procedure for Dismissal as laid down by London Borough of Sutton. The legal requirements were not carried out and the Tribunal failed to take this into consideration."
Those were the two points which Mr Marshall, who has appeared in person, developed in the course of his oral arguments.The background to the dispute can be shortly stated. Mr Marshall was employed by the London Borough of Sutton from 1 February 1989 to 7 October 1992 as an assistant engineer in the traffic and road safety section. His complaint to the Industrial Tribunal, presented on 31 December 1992, was that he had been unfairly dismissed on 7 October 1992 and had also been subjected to racial discrimination.He said in his complaint that he had been reported by two members of the staff for taking time off for carrying out private business of his own when, in fact, he was visiting Brixton Prison in connection with public duties, being a member of the Board of Visitors and a member of the Local Parole Review Committee.He refers to a disciplinary hearing which took place on 7 October 1992, when he said that he was informed on behalf of the Council by Mr Endersby that he was dismissing him for gross misconduct. Mr Marshall was, therefore, forced to resign on that date and was paid only for the week from 1 October to 7 October. He contended that that was a dismissal, that it was unfair, was racially motivated and was unlawful insofar as the dismissing officer was acting ultra vires in accordance with the relevant procedures.That was the complaint to which the Council responded in detail, denying that there had been any unfair dismissal and denying that there had been any racial discrimination.The Tribunal hearing over three days heard a number of witnesses called on each side. Mr Marshall conducted his case in person. Among his witnesses was a Mr Green, a Union representative, who had been involved in Mr Marshall's interests on a disciplinary hearing, which had taken place on 7 October.In connection with the Appeal, we have been shown documents that were before the Tribunal and which I should refer to before I go briefly to the Tribunal's decision. We have been shown a letter of 7 October 1992, signed by Mr Marshall, and addressed to the Borough Engineer and whoever else it may concern, in which he stated:
"I hereby tender my resignation from the employment of the Council due to personal reasons."
That is stated as received by Mr Endersby at 5.43 p.m. on 7 October and accepted.Mr Marshall also asked us to look at the terms of his appointment as an assistant engineer, dated 16 January 1989. Clause 13 provides:
"The period of notice to be given by either side to terminate the appointment is two months."
It is that provision that forms the basis of Mr Marshall's first submission that he was dismissed, because he was not allowed a period of two months from 7 October 1992 to continue in the employment of the Council.The difficulty with the submissions made by Mr Marshall on both points is that the Tribunal made certain findings of fact which cannot be challenged on appeal to this Tribunal. Only points of law can be pursued. The points taken by Mr Marshall here on the appeal were taken by him before the Tribunal. The Tribunal heard the witnesses, considered the conflicting evidence in the light of the documents and came to clear conclusions of fact. They clearly concluded in paragraph 11 of the decision, having heard different versions of what had happened on 7 October at the disciplinary meeting, that there was no dismissal, but that Mr Marshall resigned with effect from 7 October 1992.In coming to that conclusion they must have accepted the version of events, described in the evidence, that, when it was indicated to Mr Marshall that he would be dismissed following the disciplinary hearing, Mr Green asked whether the Council would accept resignation and provide a reference. That was agreed by Mr Endersby. The letter of 7 October was handed in and accepted.In those circumstances, there is no point of law arising under Clause 13 of the conditions of Mr Marshall's appointment. A contractual requirement that a contract of employment can only be terminated by either party on two months' notice is always subject to a contrary agreement. In the case of two months' notice of resignation it is open for an employer to waive the requirement of two months' notice. That must have been what the Tribunal found as a matter of fact when it held that the resignation had been with effect from 7 October.The Tribunal also went on to enquire whether, as Mr Marshall contended, there had been a constructive dismissal, so that it was not, in truth, a resignation. The Tribunal considered this in detail, asked themselves the right questions and concluded at the end of paragraph 12 of its decision:
"We reject any suggestion that the applicant's resignation took place at (sic) circumstances in which he can justifiably claim that he was constructively dismissed."
That makes sense in view of the earlier findings by the Tribunal that Mr Marshall:
" had come to the meeting on 7 October with a preprepared letter of resignation. Resignation was clearly on his mind since, as a result of the investigations which had been concluded, he had been 'found out'."
In those circumstances, the points on which Mr Marshall wishes to appeal cannot constitute arguable grounds of law. The contentions he wishes to make fly directly in the face of the findings of fact that he effectively resigned as from 7 October and that he was not constructively dismissed.For those reasons there is no arguable point of law in this case. The appeal will be dismissed on this preliminary hearing.