W J Farwell (Sopwell) Ltd v Coleman [1995] UKEAT 1040_94_0112

EAT
W J Farwell (Sopwell) Ltd v Coleman
[1995] UKEAT 1040_94_0112 · 1995-12-01

JUDGE CLARK:

This is an appeal by the employer against a decision of the Southampton Industrial Tribunal chaired by Mr Gorst, following a hearing held on 9 September 1994. The issue before the Tribunal was whether or not the Respondent employee had been dismissed. It decided that he had.The Respondent was employed by the Appellant company as an agricultural worker at Sopley Farm in Hampshire. The farmer was Mr Farwell. On 9 March 1994 the Respondent was rolling a field with a tractor. It was wet. He made something of a mess of the field. When he returned he was angry that he had been left to use an unsuitable vehicle. He complained to Mr Farwell about that, and about the behaviour of a fellow employee, Geoff Neil. At the end of the conversation he said:
"7 ... if things are not going to change, you can have my notice in the morning."
That evening he telephoned Mr Farwell. Part of the conversation was recorded on Mr Farwell's answering machine. A transcript was prepared and in paragraph 8 of the reasons this passage from the transcript appears:
"Respondent: ... I think the best thing for me to do so, you know perhaps sort of give me notice in and move on.
Mr Farwell: Well it is up to you. I haven't been out in the field so I don't know what ....Respondent: Well, there is a bit of a mess out there.

Mr Farwell: Well, you can't help making a mess if it's wet."

Evidence before the Industrial Tribunal was given by the Respondent and his witnesses by way of written statements, supplemented by oral examination, both in chief and by way of cross-examination by Mr Laycock, the Solicitor representing the Appellant. It was the Respondent's evidence recorded at paragraphs 9 and 10 of the reasons, that on the following morning he told Mr Farwell he was not going to hand in his notice and Mr Farwell replied that he thought they should part company.On 11 March the Respondent attended for work. His evidence, at paragraph 10, reads:
"10 ...
"On Friday morning, 11 March, Mr Farwell gave me my work as usual. While I was filling the tractor with diesel he came over to me and said he had thought about the situation. He said that he thought we should part company as we would not be able to work as a team any more. He said to me that if I wanted to carry on earning money I could stay until he found a suitable replacement. I informed him that I had no intention of leaving or handing in my notice. Mr Farwell then told me he was giving me two weeks' notice. Later that evening, in the hearing of my brother, I asked Mr Farwell what he meant and he told me he was sacking me.
At no stage have I ever handed in my notice to Mr Farwell and at no stage, since our conversation on Friday 11 March, has Mr Farwell communicated to me any written notice of dismissal nor any reasons for dismissal."Mr Farwell also gave evidence by way of written statement. That evidence is reproduced in paragraph 14. In summary, it was his version of events that on the evening of 9 March the Respondent telephoned to explain his outburst that morning and to tender his resignation. On the following morning, he said that the Respondent and he agreed that matters would remain as in the conversation on the previous evening, that is, that the Respondent would resign.On 11 March he said that the Respondent was still unhappy with his job and it was agreed that the Respondent would take two weeks' holiday. At the end of that period, on 25 March, he collected his P45. Mr Farwell denied ever sacking the Respondent.The first question which the Tribunal had to decide was whether the words used by the Respondent during the telephone conversation on the evening of 9 March amounted to a resignation. The Tribunal analysed the words used in paragraph 18 of the reasons and concluded in paragraph 19:
"19 As a question of fact and law, the words used by the Applicant in the telephone conversation on the Wednesday evening did not constitute a resignation. It seems that he was doing nothing more than float that idea as a possibility."
Mr Lynch, in his first ground of appeal attacks that finding. He contends that the words used by the Respondent constituted clear and unambiguous words of resignation.The Tribunal found, at paragraph 16, that Mr Farwell so understood the words used by the Respondent. Accordingly the only valid conclusion which the Industrial Tribunal could reach, was that the words did amount to the Respondent's notice of resignation. Their failure to do so amounted to an error of law. The Tribunal is further criticised for looking at the subjective intention of the Respondent behind the words used. It is submitted that looking at the words used objectively they plainly amount to a resignation.Mr Doughty contends that the Tribunal reached a permissible conclusion on this aspect of the case. The words used were ambiguous. The Tribunal correctly applied an objective test. Looking at the words used in the surrounding context it was entitled to conclude that all that the Respondent was doing was to float the possibility of resigning, not giving notice of his resignation.There has been some debate as to what is the proper test to be applied when considering potential words of resignation or dismissal. See Harvey at Section D 225 to 249 and the cases there cited. In our judgment the question where the words used are ambiguous is not what did the speaker intend to convey, nor what did the listener understand by the words used. These are subjective tests. We think that the proper test is an objective one; what would a reasonable bystander understand from the relevant conversation? In our judgment it was open to the Tribunal to conclude, looking at the words used by the Respondent objectively, that they do not constitute a clear and unambiguous resignation, but raised the possibility of his resigning in the future. We can find no error of law in the Tribunal's approach on this aspect of the case. Equally, it would have been open to the Tribunal to conclude that the words did amount to a resignation.The second question to be determined was whether or not Mr Farwell had actually dismissed the Respondent. As to this there was a conflict of evidence between Mr Farwell and the Respondent as to what the former had said. The Tribunal weighed the evidence given by both witnesses and came to the conclusion that it was impossible to decide which witness it preferred.If the matter had ended there, the Tribunal state in paragraph 20, it would have been bound to decide the case on the onus of proof. Since that lay on the Respondent, it would follow that the Appellant would succeed. That approach is correctly in line with the Court of Appeal's decision in Morris v London Iron & Steel Co Ltd [1987] ICR 855.However, the Tribunal found that there was one piece of evidence which tipped the scales in favour of the Respondent. This is dealt with at paragraph 11 as follows:
"11 In addition to the above mentioned evidence, the Applicant told the Tribunal, and this was confirmed in evidence by his Fiancé, Miss Elaine Elliott, that on the evening of 11 March, Mr Geoff Neil, the stockman about whom the Applicant had been critical in conversation with Mr Farwell, during the course of a hostile visit to the Applicant's then home, said inter alia `You tried to get me sacked but it has backfired as you have been sacked'. The Applicant invited this Tribunal to accept that that remark was made by Mr Geoff Neil and corroborated the Applicant's assertion that he had been dismissed. However, it is germane to observe that the Applicant did not call either Mr Geoff Neil or the Applicant's brother, whom he said was present on the same evening when the Applicant said he asked Mr Farwell what he had meant earlier in the day and Mr Farwell, he alleged, replied that he was sacking the Applicant. It is equally germane to observe that the Respondents did not call or ask for an adjournment to call Mr Geoff Neil and the Applicant's brother to refute those assertions."
At paragraph 13 the Industrial Tribunal record that the remark by Mr Neil, when he visited the Respondent's home, was corroborated by another witness, Mr Shaun Gold. That account appears in the witness statements of Elaine Elliott and Shaun Gold which were served on the Appellant in advance of the Industrial Tribunal hearing.The Tribunal expressed its conclusion on this aspect of the matter at paragraphs 21 to 23 of the reasons:
"21 There is however, one piece of evidence to which attention has to be given, and that concerns the statement, as recounted by Miss Elliott and Mr Gold, by Mr Geoff Neil, to the effect that the Applicant had been sacked. How did Mr Neil know that if he had not been told by Mr Farwell? True, the Applicant did not call his brother or Mr Neil to give corroborative evidence on that point, but by the same token neither did the Respondents ask for an adjournment to enable them to call those two witnesses, to rebut what was being said by or on behalf of the Applicant.
22 Accordingly, having been unable to draw any distinction between the Applicant and Mr Farwell as witnesses of truth, the matter must be decided solely by reference to what Miss Elliott and Mr Gold have said was asserted by Mr Geoff Neil, namely that the Applicant was dismissed.23 From this, it follows that the Applicant is free to pursue his claim for a decision as to whether or not he was unfairly dismissed."Mr Lynch makes two separate and distinct points on this conclusion.First, he acknowledges that Industrial Tribunals have greater freedom to regulate their own proceedings than courts bound by more formal rules of evidence. Rule 9(1) of the 1993 Rules of Procedure provides:
"9(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunals shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."
However, he submits that limits to the discretion, in particular to admit hearsay evidence, do exist and he referred to the observations made by this Tribunal in Aberdeen Steak Houses Group Plc v Ibrahim [1988] ICR 550. Wood J. presiding said at page 557H - 558A.
"It is also clearly recognised that tribunals on occasions can and should admit hearsay evidence, as is done sometimes in other courts. However, whilst recognising that tribunals have a wide discretion in these matters of procedure and evidence, it must be remembered that the rules of procedure and evidence have been built up over many years in order to guide courts and tribunals in the fairest and simplest way of dealing with and deciding issues. Prolixity is to be avoided.
It is possible for informality to go too far and it is important for parties appearing before any judicial body, and for their legal advisers in preparing for trial, to know the rules normally to be applied during that hearing. It is important that there should be consistency. It is also important that any such change from that norm should not present a party with an embarrassing situation from which a feeling of unfairness can arise."In this case, he complains that the determinative piece of evidence amounted to double hearsay. It was evidence from the Respondent's witnesses as to what Mr Neil had said about the circumstances in which the Respondent's employment had been terminated, and it was assumed by the Industrial Tribunal that Mr Neil was recounting what he had been told by Mr Farwell that he, Farwell had done, that is "sacked the Respondent".However, that suggestion was not put to Mr Farwell in cross-examination, and so he did not have an opportunity to deal with it. It may have been Mr Neil's own interpretation of events, in which case it counted for nothing. To decide the case finally on this point was unfair to the Appellant, in that it went too far beyond the recognised rules of evidence and procedure built up over many years to avoid this sort of unsatisfactory determination of the issues between the parties.The second point taken by Mr Lynch on this finding is that no indication was given to the Appellants' representative, Mr Laycock that the Tribunal was considering relying on this material to resolve the factual issue of whether Mr Farwell dismissed the Respondent. In this connection he relies on this Tribunal's decision in Laurie v Holloway [1994] ICR 32, that if a Tribunal is of its own motion going to attach decisive significance to a matter which has not been raised during the hearing, the parties should have a proper opportunity to deal with the point.In response, Mr Doughty submits that the Appellants had advance notice of what the Respondent's witnesses would say about the observations made by Mr Neil when he visited the Respondent's home. He points to the Chairman's notes of evidence, and in particular the extract from Mr Laycock's closing address during which he submitted that "what Geoff Neil has said is not evidence". He was therefore alive to the point on which the Tribunal finally decided the case. In any event, it was open to the Appellants to call Mr Neil. He was still an employee. They chose not to do so.However he also frankly told us that he did not put to Mr Farwell in cross-examination the question: "Did you tell Mr Neil that you had sacked Mr Coleman"? The reason for not doing so was that he did not lead evidence about the events on the evening of 11 March at Mr Coleman's house for that purpose. The relevance of that evidence to his case was that, in answer to the suggestion that the Respondent did not attend for work between 11 and 25 March, it was not because he had resigned but because he feared Mr Neil's threats. It was therefore never part of the case before the Industrial Tribunal that the hearsay evidence as to what Mr Neil had said was evidence of its truth, or of the proposition that Farwell had told Neil that he had sacked Coleman. Mr Doughty, it seems did not make the submission attributed to the Respondent, that is Mr Coleman, in paragraph 11 of the reasons.In our judgment the two complaints made by Mr Lynch concerning the Industrial Tribunal's final determination on the dismissal issue are well made.Applying the observations in Ibrahim , the implicit assumption made by the Industrial Tribunal in paragraph 21 of the reasons that Mr Farwell had told Mr Neil that he had dismissed Mr Coleman was impermissible and could not properly determine the matter.Secondly, in accordance with the principle set out in Laurie v Holloway and as expressed by Ralph Gibson L.J. in County Council of Hereford & Worcester v Neale [1986] ICR 471, at 486E thus:
"In general I agree with the view expressed by the appeal tribunal as to how a tribunal should treat and assess matters which they regard as important but which the applicant or his representative has either not mentioned at all or has apparently treated as of little importance. It is however necessary to add that it would be unwise and potentially unfair for a tribunal to rely upon matters which occur to members of the tribunal after the hearing and which have not been mentioned or treated as relevant without the party, against whom the point is raised, being given the opportunity to deal with it unless the tribunal could be entirely sure that the point is so clear that the party could not make any useful comment in explanation. Further, if a point has not been mentioned, or if little or no weight has been attached to it, the tribunal is entitled to and should have regard to the point according to their own assessment of it but, in forming that assessment, the industrial tribunal should, in my judgment, pay careful and proper attention to the course of the hearing and the way in which and the extent to which a point has been made or relied upon."
We are satisfied that the determinative factor in this case, namely Mr Neil's assertion that the Respondent had been dismissed (see paragraph 22 of the reasons) arose wholly out of the Tribunal's deliberations and no opportunity was ever given to the Appellants to deal with it in evidence and by way of submission. That was, in our view, a breach of the rules of natural justice and materially unfair to the Appellant.Accordingly we hold that this Industrial Tribunal fell into error in the two respects which we have identified and that this decision cannot stand. The appeal is allowed. We think the right course is to remit the matter to a fresh Tribunal for a re-hearing. We have considered, with Counsel, whether that re-hearing should proceed on the basis of the first Tribunal's finding that there was no resignation by the Respondent. However we think that that would artificially fetter the new Tribunal's consideration of the matter as a whole and would be undesirable. Accordingly all matters of evidence and argument are at large. The question at the end of the day will be, who really terminated the employment? See Martin v Glynwed Distribution Ltd [1983] ICR 511, 519G per Sir John Donaldson M.R.