Lyritzis v Inmarsat [1996] UKEAT 939_95_2603

EAT
Lyritzis v Inmarsat
[1996] UKEAT 939_95_2603 · 1996-03-26
MR JUSTICE MUMMERY (PRESIDENT) : This is an appeal by Mr Fivos Lyritzis against the decision of the Industrial Tribunal held at London (North) on 14 March 1995.The Tribunal heard a claim of unfair dismissal by Mr Lyritzis against Inmarsat by whom he was formerly employed as a senior systems analyst.The case was conducted in person by Mr Lyritzis and by Mr Dufey, the solicitor for Inmarsat, and the Tribunal reached the unanimous decision that Mr Lyritzis was not dismissed. It followed that his originating application failed.The extended reasons for the decision were sent to the parties on 4 April. Mr Lyritzis appealed. His notice of appeal was served on 10 May. The notice of appeal was settled by solicitors, Messrs Witham Weld, who had acted for him prior to the hearing at the Industrial Tribunal and subsequent to the decision for the purposes of giving him advice and settling the notice of appeal. On the hearing of this appeal, Mr Lyritzis, who has travelled from Greece for the hearing, conducted his case in person. He remained here for the whole of the argument, but left to catch his 'plane home before we announced the decision and delivered this judgment.In order to understand the basis of Mr Lyritzis's appeal, it is necessary to refer briefly to the history of the proceedings. Mr Lyritzis presented his application to the Tribunal on 24 September 1993. He claimed that he had been unfairly dismissed and made redundant, entitling him to redundancy payment. He gave details of his employment. He had been on the permanent staff of Inmarsat from June 1981, with no break in continuity, and he had been unfairly dismissed for redundancy on 9 July 1993. He gave details of the respects in which he said that he had been unfairly dismissed without receiving a redundancy payment to which he was entitled.The IT1 was prepared for him by Mr Hawthorne of Witham Weld. It sets out a clear basis for his case. This is more than can be said of the notice of appearance. Neither in its original form nor its amended form does it identify the issue on which the case was ultimately decided. The notice of appearance stated in Box 3 that it was agreed that Mr Lyritzis was dismissed. The reason given was redundancy and/or some other substantial reason. Although the details, fleshed out in 19 paragraphs, give a certain amount of background information about Mr Lyritzis's employment with Inmarsat, they do not identify what was, ultimately, the crucial issue.The case advanced in the notice of appearance was that Inmarsat, an international organization, had employed Mr Lyritzis as a senior analyst consultant based in their premises in London. He had been employed under contract down to 1990 when he tendered his resignation, which was accepted. He was then employed under a fixed-term contract. According to in paragraph 7:
"Having tendered his resignation the Applicant subsequently sought to withdraw the same and the Respondents agreed to allow the Applicant to withdraw his resignation and with effect from 1 January 1991 the Applicant was placed on a fixed term two year contract expiring at the end of December 1992."
The notice of appearance refers to events in 1991 and 1992 and alleges that on 18 September 1992 Mr Lyritzis was formally advised of the fact that, given the completion of the work on which he was engaged, his position with the Respondents was redundant. Discussions were held with him as to his entitlement to severance terms pursuant to their normal redundancy arrangements. They are set out. They plead in paragraph 12 that, having considered the proposals which were made to him, Mr Lyritzis requested a variation of the normal arrangements, that he be allowed to commute his redundancy entitlement to salary payments and that he be allowed to remain on the Respondent's payroll until end June 1993. The Respondents agreed to that on the basis that he remained on the payroll until 9 July 1993, but he was relieved of duties and performed no further work for them after 21 September 1992.On that basis it was contended by Inmarsat that Mr Lyritzis was dismissed by reason of redundancy. Despite the Respondents' attempts to find him suitable alternative employment, he was made redundant. He had received his full contractual entitlement to compensation consequent on his redundancy and this redundancy payment was commuted to enable him to remain on the payroll until July 1993. He had received substantial benefits over and above his contractual entitlement. If, contrary to their submission, he was not redundant, he was dismissed for some other substantial reason. In all circumstances, they had acted reasonably.During the course of discovery the solicitors for Inmarsat came across a letter of appointment dated 12 October 1990. This is not referred to in the particulars. Its discovery led Inmarsat to make an application for amendment which was granted. The letter of appointment provided that Mr Lyritzis would be employed with effect from 1 January 1991 on a fixed-term appointment in the directorate of Inmarsat as a senior systems analyst for a period of two years. The real importance of the document is that it contained an express term on the second page under the heading "Non-Renewal of Contract" which provided that:
"Any claims which you may have been entitled to make at the expiration of the term of this appointment for compensation or other remedies in respect of unfair dismissal or for redundancy payments, pursuant to the Employment Protection (Consolidation) Act 1978 or any statutory modification or re-enactment thereof, are hereby waived and excluded."
That was alleged by Inmarsat to be a waiver provision which complied with the provisions of s.142 of the 1978 Act and was an effective waiver of Mr Lyritzis' statutory unfair dismissal of employment rights. In those circumstances, they asked for leave to make an amendment, pleading that agreement and alleging that, in those circumstances, the Industrial Tribunal had no jurisdiction to entertain the complaint of unfair dismissal.The request for the amendment was made by Inmarsat's solicitors in a letter of 7 March 1994. On 15 March 1994 a letter was sent to those solicitors, with a copy to Mr Hawthorne, as Mr Lyritzis's then solicitor, stating that the request to amend was granted.There was a directions hearing on 8 February 1995 following complaints from Mr Lyritzis about the delay in dealing with the matter. A direction was given that the question raised by the amendment should be decided as a preliminary issue. The date for the hearing of that preliminary issue was fixed for 14 March 1995. The decision made on that hearing is the subject of this appeal.The decision is explained in the extended reasons. The Tribunal said (paragraph 1) that:
"The Respondents in their Notice of Appearance contended that this was a consensual ending of the contract and not a dismissal and therefore the Applicant could have no remedy.
2. This issue was treated as a preliminary point and upon it we heard evidence from Mr K Thakkar of the Respondents and from the Applicant [Mr Lyritzis]. "The extended reasons compressed the position on the pleadings. The situation was, as Mr Nicholls, their Counsel, accepts, that it was never expressly alleged by the Respondent that there had not been a dismissal, that there had been a consensual termination, which is not a dismissal under the 1978 Act.Having expressed a preference for the evidence of the Respondents, the Tribunal referred to the corroborative effect of certain undisputed events and to certain undisputed documents before them. The facts found, so far as not already set out, were that Mr Lyritzis agreed to leave on the terms set out in a letter dated 22 September 1992. They said in paragraph 6 that:
"They [the Respondents] could of course have waited for the fixed term contract to expire but instead they approached Mr Lyritzis to agree a severance package. They based their calculations upon contractual redundancy terms which were far more generous than statutory terms. They offered him a sum of over £40,000 if he would leave immediately.
7. Mr Lyritzis agreed to leave but asked that instead of being made redundant a similar amount of money could be paid to him as a salary until July 1993 so that he would be in a better position to apply for other jobs. The company agreed. He was sent home that day and not required to report for work. They paid him his salary until the following July and did not stand in his way if he could get a job before then. They offered him out-placement services.8. Mr Lyritzis told us that he did agree to that scheme but it was on condition that the company re-employ him on another contract the following March. We did not accept that nor that he had been dismissed. An employer wishing to dismiss an employee in these circumstances could quite easily have sent him home and paid him for the following three months until the end of his fixed term contract but instead they made him an offer which was far more generous and which he readily accepted.9. In those circumstances we have no doubt that the contract was ended upon consensual terms and there was therefore no dismissal within the meaning of section 55(2) of the Employment Protection (Consolidation) Act 1978."He could not therefore bring a claim for unfair dismissal or redundancy payments.The letter of 22 September 1992 is not expressly referred to in the decision. We have been provided with a copy. Although Mr Lyritzis alleged in his submissions that a number of other documents were forgeries, in particular an attendance note or memorandum of the meeting that took place on 18 September 1992 between him and Mr Thacker, he did not challenge this letter. He did not deny receiving it and he admitted that he did not write, after he had received it, disputing any of it.The letter is a crucial one. It is addressed to Mr Lyritzis at his then address in Epsom:
"Following your earlier discussions with Keith Thacker, Paul Branch, Bob Dahlgren and Marsha Grothe, I am summarizing your redundancy separation terms as follows:
1 You will remain on the payroll until July 9, 1993. For the time you remain on the payroll, all paid benefits and allowances will continue in full.2 Your pension benefits will continue to accrue while you remain on the Inmarsat Payroll..."The letter concludes on this note:
"I am very sorry that we have to part on this basis. Marsha Grothe from the Human Resources Department will be speaking with you about your outplacement counselling. We wish you the best for your future."
In our view, the terms of that letter clearly support the finding by the Tribunal that there was an agreement reached between Mr Lyritzis and Inmarsat which consisted of this redundancy package under which he agreed with Inmarsat that his employment would terminate on 9 July 1993.It is important to read that letter against the background of the letter of appointment under which, if no contrary agreement was reached, Mr Lyritzis' employment would come to an end at the end of December 1992 with no entitlement on his part to compensation for dismissal or a redundancy payment by virtue of the s.142 waiver.The grounds of appeal, settled by Mr Lyritzis' then solicitor, raise two points. One relates to the procedure followed. The second relates to the perversity of the decision. Mr Lyritzis is suspicious about the course of the proceedings. He makes allegations, not supported by any evidence, that there was impropriety on the part of the Tribunal or its Chairman. At certain points during the hearing Mr Lyritzis alleged that the Chairman was possessed of information not available through formal procedures, that there had been illegal co-operation between the Tribunal and the Respondents and that the Chairman of the Tribunal was working for the Respondent employer.Although we reject these allegations entirely, we can see how the course of the proceedings aroused a suspicion in Mr Lyritzis that the procedures adopted were unfair and unusual. His case is that he was entitled to a full hearing of the case; he wanted to call witnesses; he understood that there was a preliminary issue; he turned up on 14 March to find that what was being decided then was a different issue than had been raised by Inmarsat in the original notice of appearance; he said rather graphically that what had happened at the hearing on 14 March 1995 was the "cancellation" of the IT3. He said that this was not a judicial process. What the Chairman did at that hearing was to decide the case on a different basis than he had been led to believe would be decided on that day. The only matter which had been directed to be heard formally as a preliminary issue was the point on jurisdiction in relation to s.142 of the 1978 Act. He alleged that it was outrageous for the Tribunal to come to the conclusion that he had resigned.In more temperate language Mr Hawthorne's notice of appeal refers to the fact that the notice of the preliminary hearing had been to consider the question raised by the amendment to plead s.142 of the 1978 Act. As there was a long delay after that preliminary direction was given, complaints were made. After those complaints, a hearing was granted for 14 March for the s.142 point.Mr Lyritzis decided to represent himself at that hearing. He appeared without solicitors and without witnesses. He told us that one of the witnesses he would have wished to bring was his manager.

(c) of the notice of appeal that:

"At all times prior to the Industrial Tribunal hearing on the 14th March 1995 so far as the Appellant is aware, the fact of his having been dismissed was admitted by the Respondents. Also their Form IT3 filed in response to his complaint Form IT1 ... admitted dismissal but gave redundancy and/or some other substantial reason as their grounds."
In order to decide, as they did in their decision, that he was not dismissed, the Industrial Tribunal must either erroneously have allowed the Respondents to make further amendments without notice to him, to the IT3, or have acted inconsistently with the clear statement and admissions to the contrary made in 1993 in the form IT3 and later, in March 1994, following the consent given to the amendment to plead s.142.These are alleged in the grounds of appeal to amount to a failure of the rules of natural justice under which parties are entitled to know, in advance of an Industrial Tribunal hearing, the nature of the case that they have to meet at that hearing. Having notified the parties that the hearing on 14 March was concerned with the s.142 question, the Tribunal erred by refusing to decide that issue. Instead they decided another point not previously raised by the parties. Reference is made to the consistent admission by Inmarsat over many months that there was a dismissal. They had never alleged in any pleading (or amended pleading) that there had been a resignation.In those circumstances, Mr Lyritzis was incensed. At a number of times during this hearing we had the clear impression that he intended to leave the hearing, because he did not think that we were according him natural justice. We were able to persuade him to remain until the end of the argument and to hear what Mr Nicholls had to say on behalf of Inmarsat.Mr Nicholls' point, reinforced by affidavit evidence to which Mr Lyritzis did not object on the basis that he would be entitled to comment on it, was that you must look at the rules to ascertain the procedure governing tribunals. You must then look at the affidavit evidence filed by him to see what actually happened and then determine whether there had been a breach of the rules. Industrial tribunals, unlike ordinary courts, have more flexible, more informal procedures. He relied on Rule 9 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 Rules:
"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 tribunal 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."
He also referred to Rule 13:
"Subject to the provisions of these rules, a tribunal may regulate its own procedure."
Mr Nicholls referred to the affidavits which have been provided and to the Chairman's comments. He referred to the affidavit of his solicitor, Mr du-Feu, about what happened at the hearing. He appeared for the Respondent at the hearing accompanied by Mrs Jones, who was at the time head of personnel at Companies House and was on secondment to his firm. Mrs Jones took notes of the hearing. They have been exhibited to the affidavit sworn by her. He referred to those notes to refresh his memory. His recollection was that for the first hour of the hearing there was a discussion between himself, the Chairman and Mr Lyritzis about the nature of the case which the Tribunal had to determine. Mr Lyritzis took a full part in the discussion. The Chairman took pains to ensure that Mr Lyritzis understood the nature of the arguments discussed. The Chairman asked Mr Lyritzis what he hoped to achieve from the Tribunal. He told him that there was an issue whether he was dismissed or whether his contract came to an end by mutual agreement. He stated to Mr Lyritzis, on more than one occasion in the course of the hearing, that the Tribunal had to determine whether Mr Lyritzis was dismissed or whether he left as part of an agreement. He made it plain that the Tribunal only had jurisdiction to entertain his claim if he had been dismissed. In the course of presenting the case, Mr du-Feu took the Tribunal through the documents, drawing attention to the generosity of the termination package. He submitted to the Tribunal that there had been a mutually-agreed termination of the contract, as evidenced by the generosity of that payment.Mr Lyritzis put forward his case. The Chairman reminded him that the issue was whether he was dismissed or whether he left as the result of an agreement with the Respondent. Mr Lyritzis appeared to understand at all times the evidence and issues discussed. He was not taken by surprise when the issue was raised whether he had been dismissed or left pursuant to an agreement.We have two letters from the Chairman of the Tribunal. One is a letter of 20 February 1995, written by the Industrial Tribunal on behalf of the Regional Secretary. It refers to the events which occurred at the interlocutory hearing on 8 February and the direction for a preliminary issue.We have from the Chairman a letter dated 29 August 1995 giving his account of what happened at the hearing on 14 March:
"It was the Tribunal's view that the arguments put forward and the evidence heard on 14 March 1994 were very much on the point raised in the amended IT3.
The essence of the amendment was that Mr Lyritzis was not dismissed. This of course was an alternative argument to their defence of redundancy. It follows that the Industrial Tribunal rejects paragraphs (d). [Referring to the notice of appeal.] The amendment and preliminary hearing were about the central question of whether he was dismissed. The Tribunal investigated the circumstances thoroughly and concluded, albeit for different reasons than those originally pleaded, that there had been no dismissal."He referred to the question of s.142 raised by the amendment:
"If an Industrial Tribunal embarks upon a point under Section 142 but decides upon sworn evidence that the application must fail because there has been a resignation - is it obliged to stop and hear the same evidence over again at another preliminary hearing? That in our view would make a nonsense of the judicial process."
That is a helpful letter, but we would observe that it was not clear from the original IT3 or the amendment that the point taken by the Respondents was that Mr Lyritzis had not been dismissed. As already explained, the point taken by way of amendment was that he was dismissed in circumstances in which, by virtue of the terms of the letter of appointment and s.142, he was not entitled to compensation or redundancy payment.In those circumstances, Mr Nicholls submitted that there was no procedural error which would entitle Mr Lyritzis to succeed on his appeal. Mr Nicholls submitted that, having regard to the Rules of procedure and to the uncontradicted affidavit evidence as to what happened at the Tribunal, supported by the Chairman's comments, the Tribunal was entitled to follow the course they did. They were masters of their own procedure. It did not matter that the point on which they decided the case was not adverted to in the notice of the preliminary hearing. The matter was addressed at that hearing, with the consent of both parties. The Tribunal acted in accordance with the rules of natural justice. The issues were explained to Mr Lyritzis. He was given a chance to give his evidence. He was made aware of the real issue. He was given assistance by the Chairman in the conduct of his case.On that ground of appeal we agree that the Tribunal were entitled to make a decision on the question of whether there was a dismissal or not at that hearing. It would have been better, in our view, if the hearing had been adjourned in order to give Mr Lyritzis an opportunity to seek advice, if he so wished, from Mr Hawthorne about how he should deal with the different situation which had arisen, namely the issue of dismissal or not, as opposed to the s.142 issue.We are not able to say, however, that there were procedural irregularities such that the appeal should be allowed. We accept what is said in the affidavits and in the Chairman's letter that Mr Lyritzis did have explained to him what the issue was and was given an opportunity to give evidence relevant to that issue. More important than that, in our view, is the effect of the documents which are really decisive of the whole case.The second ground of appeal was that the decision was perverse, on the merits, that the Tribunal came to a decision which no reasonable Tribunal, properly directing itself, would have reached. It is said at the end of the notice of appeal that the Industrial Tribunal decision in April 1995 that the Appellant was not dismissed is perverse and should be set aside.On the documents alone (the authenticity of which have not been challenged by Mr Lyritzis) and we refer to the letter of appointment for the two-year fixed-term and the letter of 22 September 1992 setting out the redundancy package, we are satisfied that the Tribunal's decision was not perverse. Indeed, it is the only decision that the Tribunal could reach. It is clear from those documents that the legal position is as concluded by the Industrial Tribunal in the extended reasons.If no redundancy package had been agreed, the legal entitlement of Mr Lyritzis was this: his fixed-term contract would expire on 31 December 1992 and he would have no claim to compensation or redundancy by reason of the waiver of those rights under s.142 in the express terms in the contract. It is clear from the letter of 22 September that an agreement was reached under which he would leave the employment of the company. Detailed arrangements were agreed from which he did not dissent in any subsequent correspondence. The only points that Mr Lyritzis had on that letter were, first, that he did not make any mention of a payment for redundancy compensation and, secondly, he had not been asked to sign anything. He said that an organization of this size would have asked him to do that if this was, in fact, a complete settlement of everything, including the redundancy payment.We do not find either of those points persuasive. On reading those two documents together - the letter of appointment and the letter with the redundancy package - the Tribunal's decision, far from being perverse, was the only decision that could be made. There was a parting of the ways between Inmarsat and Mr Lyritzis as a result of mutual agreement on a redundancy package. It is unfortunate that the procedural state of the case was such that it raised anxieties on the part of Mr Lyritzis as to whether he had a fair hearing, but this unfortunate aspect of the case should not allow us to cloud our judgment about the substantive merits. We have reached the conclusion that, even if we had decided to allow the appeal on the procedural point and remit the case to another Industrial Tribunal for a rehearing, it would be bound to reach the same decision that this Tribunal reached.For all those reasons, there was no error of law in the decision which would justify allowing this appeal. It is, therefore, dismissed.