O'Leary v Perkins Engines Ltd [1996] UKEAT 1055_95_0902

EAT
O'Leary v Perkins Engines Ltd
[1996] UKEAT 1055_95_0902 · 1996-02-09
MR JUSTICE TUCKER : This is a preliminary hearing ex parte of an employee's appeal against a decision of the Industrial Tribunal held at Leicester on 17 August 1995. It was the unanimous decision of the Tribunal that the Appellant was not dismissed. They described it rightly as being a sad case. The Appellant had worked for the Respondents, Perkins Engines Ltd for 30 years as a machinist. He had become a shop steward. He had worked long and hard and no one criticised him for the work he had put in or the way he had done it.It seems that pressures built up for reasons that have been explained to us and that there were tensions between the Appellant and certain other employees.The Respondent has a grievance procedure and a general sick-pay scheme. The Appellant went off sick on 10 April 1995. His doctor diagnosed anxiety and depression and we have a recent doctor's note saying that he saw the Appellant on 12 April 1995 and that the Appellant was then very anxious and mildly depressed. The trigger factor seemed to be work pressure. The doctor suggested that he stayed off work for two weeks. He then saw the doctor's partner, who suggested counselling and further time off work.The Appellant arranged a meeting with the Respondents' personnel manager, Mr Cartwright. That took place on 20 April. The Appellant invited Mr Cartwright to dismiss him for redundancy but it was explained to him that there was no redundancy situation. Mr Cartwright told the Appellant that he should arrange for his doctor to sign him off sick for a further two weeks to give himself time to consider his position and advised him not to take a hasty decision. That seems to be wise advice for the Respondents through their personnel manager to have given. But on 4 May the Appellant decided to resign and indicated that he would be leaving the following Monday.He subsequently did resign. On 18 May Mr Cartwright told him that he could reapply for work but in that case he would be considered as an ordinary new employee.It is not entirely certain what complaint the Appellant was making to the Industrial Tribunal but he tells us that he was seeking reinstatement in his employment. The Tribunal regarded him as having made a claim for unfair dismissal and treated his application on that basis. The Tribunal properly directed themselves as to the law. They set out in paragraph 11 that it was for the Applicant to demonstrate first of all that he was dismissed and, in the circumstances of his case, to demonstrate that he was constructively dismissed. They directed themselves that that meant that the Respondents must have been guilty of significantly serious behaviour which caused the Appellant to leave. But, as the Tribunal found, at no stage did the Respondents try to force the Appellant to retire. The decision to retire came from him and him alone. He was advised by Mr Cartwright to take time to consider his position and did not make hasty decisions. In paragraph 12 the Tribunal say this:
"Having considered the evidence, we are clearly of the view that the respondent did nothing to breach the applicant's contract."
They expressed the wish that the Respondents had done rather more than they did for a man who had served them for over 30 years. They took into account the fact that he was under stress and was confused but the Tribunal said:
"We would have preferred to have seen the respondent in this situation taking more active steps to counsel the applicant. Their failure to do so does not, however, come anywhere constituting a breach of contract."
The Appellant tells us today that since leaving he has taken voluntary retirement. He has accepted a substantial lump sum payment and is in receipt of a retirement pension of £300 per month.What is his appeal to us? The grounds of appeal are that the Tribunal erred in law and that the important point of law in his case was to whether or not an employer can accept a resignation from someone he knows to be under severe stress, particularly when the resignation is verbal and is not confirmed in writing.It is, as we said at the outset, as the Tribunal found, a sad case. We have allowed Mr O'Leary, who has appeared in person, to address us on any matter he sees fit but the fact is that he is not, in our view, able to point to any point of law upon which we could assist him. He will understand that we cannot review evidence taken before an Industrial Tribunal nor re-open the arguments which were addressed to them. We can only act if it appears that the Tribunal went wrong on some point of law and that would include showing that they came to a perverse decision which no reasonable Tribunal could have reached, properly directing themselves.Sympathetic though we are to Mr O'Leary in his predicament, we are afraid we cannot find, though we have searched long and hard on his behalf, any point of law which would assist him. I am afraid, therefore, Mr O'Leary, we have to say we dismiss your appeal at this stage and we wish we could help you. We have striven to see if we could do so but I am afraid we cannot.