Fennell v Creda Ltd [1995] UKEAT 1258_94_0706

EAT
Fennell v Creda Ltd
[1995] UKEAT 1258_94_0706 · 1995-06-07
MR JUSTICE TUCKER: This is a Preliminary Hearing ex parte of an employee's appeal against a decision of the Industrial Tribunal sitting at Shrewsbury on 8 November 1994. The Tribunal was asked to decide as a preliminary issue, whether there was a dismissal under the provisions of Section 55 of the Employment Protection (Consolidation) Act 1978 . The Tribunal found that on the basis of a mutually agreed settlement, the Applicant resigned from the Respondent company, Creda Ltd, and voluntarily terminated his own employment. They found that there was no dismissal and therefore the Tribunal had no jurisdiction to deal with the application.In his originating application, the Applicant complained of unfair dismissal. He set out the details and they included an allegation on the part of the Respondent, that he had been guilty of gross misconduct and that he could choose resignation or face a disciplinary hearing. He totally rejected any wrongdoing and therefore had no reason to resign. He alleged that during the period that followed, his position was undermined by the company's action, to the extent that his job, as the most Senior Financial Officer of the company, became untenable. In the circumstances, he believed that he was unfairly dismissed.The Respondents took the opposite view. They did not agree that the Applicant had been dismissed. In their Notice of Appearance they set out their contention which was, that the Applicant's contract of employment was terminated by his resignation, or alternatively, by mutual agreement. That, therefore, was the issue. It involved a mixed question of law and fact. So far as the facts were concerned, the Tribunal set out the evidence in considerable detail and reviewed it. The Applicant's case was that he was accused of misconduct and told that in the circumstances he could either resign and go without any financial compensation or face a disciplinary hearing. In the event, he went but with very considerable financial compensation. He told the Tribunal that the matter was put forward to him:
"...on a `take it or leave basis.' He considered that he was under duress but conceded to it and entered and entered into an agreement for settlement with the respondent company. He also maintained that he had always indicated, in any event, that he intended to take the respondent company to a Tribunal. In general terms he believed that he was being intimidated and put under psychological pressure about the whole matter. He also felt that he was a victim of circumstances but because he had to live he had to accept what was offered and seek redress later on through the Tribunal. This is the real reason, therefore, which he was putting forward for signing, in effect, what appeared to be a mutual agreement and understanding..."
The Respondents called their own evidence on the matter, given by a Mr Collins, who said that terms were finally agreed between the Respondent and the Applicant as to his resignation from their employment. He told the Tribunal that the Applicant told him:"... If you agree that I will not go to any Tribunal, it is a deal."...The terms which were being agreed to, were in addition to compensation, that the Applicant was entitled to use the company car for six months and to have cover under the BUPA scheme for five years, for the Applicant and his family.The Tribunal accepted what Mr Collins said. They preferred his evidence to that of the Applicant on all matters relating to the alleged mutual agreement for settlement of the Applicant's claim. It is therefore on the basis of terms having been mutually agreed, that the Tribunal accepts that the letter dated 25 March 1994 was then written by the Applicant to Mr Enders, of the Respondent company. The Tribunal were referred to the relevant cases. They included the case of Sheffield v Oxford Controls Company Limited [1979] ICLR 133 and two other cases. In the Sheffield case, at paragraph 20, Mr

Justice Arnold giving the judgment of the Appeal Tribunal said:

"... It is plain, we think, that there must exist a principle, exemplified by the four cases to which we have referred, that where an employee resigns and that resignation is determined upon him because he prefers to resign rather than to be dismissed (the alternative having been expressed to him by the employer in the terms of the threat that if he does not resign he will be dismissed), the mechanics of the resignation do not cause that to be other than a dismissal. The cases do not in terms go further than that. We find the principle to be one of causation. In cases such as that which we have just hypothesised, and those reported, the causation is the threat. It is the existence of the threat which causes the employee to be willing to sign, and to sign, a resignation later or to be willing to give, and to give, the oral resignation. But where that willingness is brought about by other considerations and the actual causation of the resignation is no longer the threat which has been made but is the state of mind of the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then we think there is no room for the principle to be derived from the decided cases. In such a case he resigns because he is willing to resign as the result of being offered terms which are to him satisfactory terms on which to resign. He is no longer impelled or compelled by the threat of dismissal to resign, but a new matter has come into the history, namely that he has been brought into a condition of mind in which the threat is no longer the operative factor of his decision; it has been replaced by the emergence of terms which are satisfactory."...What is the position in the present case? The Tribunal were the fact finding Tribunal and found these facts that:
"... they do not consider that there was any duress put upon the applicant in agreeing the terms of settlement and no intimidation or psychological pressure was put upon him with regard to the settlement. He was a senior manager and a financial director and well able to make a rational decision himself on such matters. In so far as the terms of the settlement were concerned the Tribunal are satisfied that these terms were mutually and properly agreed and that following such mutual agreement upon them, after a considerable number of days having been spent upon negotiations, the applicant signed a letter agreeing to the mutually agreed terms and agreeing to the termination of his employment... It was also suggested to the Tribunal that there was a redundancy situation arising in this instance. The Tribunal do not accept that this was so and in fact also do not accept that there was any evidence to show that the applicant had been unfairly selected for redundancy. Similarly the Tribunal do not accept that the applicant was unfairly constructively dismissed. As stated they do not consider there was any "dismissal". The applicant, following upon mutually agreed terms of settlement having been reached, resigned his own employment with the respondent company and therefore voluntarily terminated his own employment."
Those are the Tribunal's findings. They applied to those findings the proper principles of law. It is difficult to see how that decision can be impugned. During the course of the day, this Tribunal received a facsimile letter from Personnel Advisory Services who have been advising the Appellant in the appeal, a letter bearing today's date saying:
"My wife received a telephone call today pointing out that the hearing of the above case is scheduled for today. I entered the date in error in my work file for the 7th July, I apologise for this. However I would like the EAT to decide on the case on the details already submitted. The essential nature of the case is that there was a dismissal. The documents show that Mr Fennell was offered and accepted Voluntary Redundancy. There was a dismissal, it is claimed. The Tribunal found that there was no dismissal. The appeal to the EAT is simply to ask if, in law, there was a dismissal. If in law there was a dismissal, then the Respondent is required to show the reason for that dismissal. VR was shown in the evidence. The Tribunal rejected this."
Accordingly, we have dealt with the hearing on the basis of the details already submitted, together with the contents of the letter which we have recited.We agree with the Tribunal's Decision. They saw the witnesses, they decided the facts, they applied the proper principles of law to those facts and we see no purpose in allowing this appeal to go any further, because in our view, it could not succeed. We dismiss the appeal.