Wilkes v Thanet District Council [1998] UKEAT 282_97_2007

EAT

Wilkes v Thanet District Council

[1998] UKEAT 282_97_2007 · 1998-07-20

JUDGE J HULL QC :

This is an appeal to us by Miss Tessa Wilkes or Mrs Standen as she is now known, as she is married to Mr Standen, against the dismissal by an Industrial Tribunal, sitting at Ashford in Kent on 29 and 30 October 1996, of her applications to the Tribunal. The Tribunal was chaired by Mr May with two industrial members. She had complained to the Tribunal on 16 May that she had been unfairly dismissed and that there was a wrongful dismissal, that it is to say a breach of her contract of employment, and that she wanted compensation.

She was employed by the Respondents, the Thanet District Council, as an accountancy assistant with regard to rents, that being, of course, in the housing department. She was first employed on 15 January 1985 and she moved to her job, as it was at the time of dismissal, on 1 December 1994. On 20 December 1995 she went away with illness, she was not dismissed or anything at that stage, and it was later diagnosed that she was suffering from glandular fever.

Whilst she was away there were a number of events going on in relation to the local authority's activities. I do not need to go into any detail. Like all authorities, at least, I believe all, the authority was under pressure with regard to personnel, to working more efficiently and there was something called compulsory competitive tendering which was being enjoined on councils which again made them think in terms of whether they were as efficiently organised as they ought to be, whether they had people with whose services they might dispense, whether they had tasks which could be carried out more efficiently.

We have seen a number of large bundles of documents; the one which is of immediate interest is called bundle 1, which is very helpfully indexed. That contains, among other things, the terms of appointment of Miss Wilkes to her post, with provision for annual leave and a number of other matters. There are also a number of documents relating to the time while she was away from her work and letters relating to that. The first document to look at is at page 18 of the bundle. There Mr Taylor, who was at that time housing manager although he moved on fairly shortly thereafter, was writing on 25 October 1995 and referring to Miss Wilkes' position (which he referred to as post no. H34 at that stage, it later became, I think, post no. 83):

"We have now completed the half-year staffing review of Housing Officers and it is clear that new systems and computerisation of the Section will make the above post redundant in four weeks. The current post-holder is off on sick leave and the small percentage of work remaining on movement sheets etc. is adequately being dealt with by the rest of the staff.

I fully recognise that this member of staff was given an assurance of no compulsory redundancy when undertaking the stock transfer consultation, and..." [he goes on about that matter].

That was written to a senior personnel assistant. The matter was considered by an executive group to whom Mr Taylor wrote as housing manager on 23 January (p20) and, referring to Miss Wilkes' position, he wrote:

"The majority of this postholder's duties have become redundant as the new integrated computer system deletes 90 % of the workload. The current postholder has been absent on sick leave and the integration of the software has proven without doubt that this post is no longer necessary. There are no posts currently vacant nor available within the foreseeable future for the present postholder."

Then he deals with other people in that branch or sub-department inside the housing department. He then received a reply from the establishment officer, who wrote in strong terms, on 25 January - actually it was sent to the chief finance officer and deputy chief executive, a Mr Rush - and, referring to Tessa Wilkes, the writer says:

"To say that I am astonished to read 'the majority of this postholder's duties have become redundant as the new integrated computer system deletes 90% of the workload' would be an understatement."

Then he goes on to criticise the statement. He says:

"In order to clarify the present situation, the following facts can be established:-

the decision to make the post redundant was taken within six weeks of the commencement of sickness leave and several months before implementation of the new Rents system..."

Then, further down, (p22)

"In conclusion, Miss Wilkes continued employment within the organisation is quickly becoming unreasonably untenable through no apparent fault of her own.

It would be in the Council's interests to urgently review this situation prior to her imminent return to work. The Council's premature retirement scheme includes the scope for an enhanced voluntary redundancy package which can be utilised in an area affected by CCT [the Compulsory Competitive Tendering] such as Housing Management."

Finally he says:

"The potential savings [having set out some figures] for post HM83 in 1996/97 are £17,000 less any mutually agreeable package for [the] redundancy."

Well, that is a rather strong letter, or note, to write to a senior officer of the authority by a person who perhaps had not been responsible for the housing department, the establishment officer. But when one learns that it was in fact written by Mr Standen, who is now married to the lady and was at all material times, apparently, on friendly terms with her, one wonders whether it was really right for him to take a personal interest and write this letter. The Industrial Tribunal had some doubts on that topic.

"There are several things to be said," says Mr Lewis for the authority; on that important memorandum, he says:

"nobody had suggested at this stage that Miss Wilkes was redundant; this was Mr Standen suggesting it. What had been said was that 90% of the work in the post had become redundant and", says Mr Lewis, "this is the first time" - and it appears that he is right in saying that - "this is the first time that any suggestion of an enhanced payment had been made and here one has, coming from a gentleman who was in fact in close communication with this lady, Miss Wilkes, a suggestion for voluntary redundancy and an enhanced voluntary redundancy package."

Well there it was. That was, in a sense, jumping the gun. We find the notes of an executive meeting on 30 January at page 24 and at page 25 what this apparently very important committee, a powerful executive group, decided with regard to Miss Wilkes. They wrote at paragraph 605:

"HM discussed with the Group his report on staff changes for his department. The Group decided not to consider Post HM83..."

So no decision was taken on what had been suggested, namely that the post itself might be redundant.

On 5 February (p 27) there was a note from Mr Taylor to the executive group, he wrote:

" I am pleased to inform Executive Group that that assessment has been completed jointly between us and Unison [the trade union] and it is proposed that, with the exception of post No. HM83, the recommendations be implemented with immediate effect and that any decision on post HM83 be held in abeyance until the postholder returns from sick leave. At that time alternative employment within the Authority is to be discussed with the postholder."

So that was how the matter was to be left, apparently, until Miss Wilkes' return to work. But it turned out that the matter was not so left, because Miss Wilkes, evidently having spoken to Mr Standen who had disclosed these, one would have thought, confidential matters to her, wrote a letter, with his help, on 12 February 1996 (p29). She wrote:

"I am led to understand that upon my return to work from long term sickness leave, I will be advised that my post within the Housing Finance Unit has become redundant.

I must admit I was somewhat surprised to learn that the new integrated rent system has 'taken over' such a very significant percentage of the post's workload and I was also disappointed that I have not been given the courtesy of being advised or even consulted during the decision making process."

She had, if that is so, been misinformed, because the true position, as one can see, was evidently - and this was accepted by the Industrial Tribunal - that no decision had been taken and when she returned the question of other work was to be discussed with her. Now she makes the suggestion herself:

"Under this policy [referring to the Council's employment stability policy and the Council's premature retirement scheme] I am willing to consider my voluntary redundancy from the Council with immediate effect from 29 February 1996 under the terms indicated below:"

and then she stipulates for a statutory redundancy payment, the enhanced redundancy payment (which is payable under the council's scheme) and six months pay in lieu of notice; amounting to a total of more than £12,000.

Then there is another letter (p30) of the same date, also signed by Miss Wilkes, which omits all the figures; this was re-written after Mr Taylor, the housing manager, had spoken to Mr Standen and said that it might make matters easier if the figures were omitted, that is what the Tribunal found. At any rate, there was a reply (p31) from Mr Taylor. He wrote saying to her, in terms, that she had not got it quite right.

"All that has happened so far is that I have advised the Executive Group of the staffing implications within the Housing Finance Division. Until such time as I had conferred with my colleagues it would have been wrong of me to discuss this review with a member of staff, who was off sick, and caused further worry."

He goes on in the next paragraph:

"I wish to reassure you that the report received by the Executive Group outlined the Department's responsibilities under the Authority's Employment Stability Policy, and to realise your potential as an officer that a post similar to the one you are currently undertaking be found for you within the Authority. There is no intention on my part to do other than follow the necessary procedures, and I can confirm that your present post awaits you on your return from sick leave, at which time we will have the fullest interview to discuss your ongoing employment and your application for voluntary redundancy."

So Mr Taylor was saying there, in terms, "you are not redundant. Your post awaits you. When you return we shall have discussions and we will also discuss your application." She had, in a sense, jumped the gun, if that is the right expression, she had applied for voluntary redundancy when there was no question of her being redundant. The fact was that her post might or might not, in substance, disappear, that she herself might or might not find that she was liable to be redundant, that she might or might not, in those circumstances, either be offered a post to which she could contractually be moved, in which case there would be no question of redundancy, or be made a reasonable offer of suitable employment by the authority ,which might involve some change in hours or duties or matters of that sort but if it was a reasonable offer then, again, she would not be redundant, at any rate if she accepted it. So that was the situation at that stage.

There was a memorandum, again written by Mr Standen, on 28 February, in which he set out the likely payments that would become due in accordance with Miss Wilkes' own understanding of the matter. Not surprisingly, because he of course was on friendly terms with her and had been in communication with her.

Then we come to some letters which are very important indeed. First of all Mr Taylor wrote to Miss Wilkes on 11 March. He referred to a meeting during which, he said,

"...you explained your position and re-iterated your decision to be considered for voluntary redundancy, I am writing to confirm that I have spoken to the Chairman of the Housing Committee and that your application is accepted.

The financial package available to you includes a Statutory Redundancy Payment, the maximum severance payment under the Local Government (Compensation for Premature Retirement) Regulations 1994 (limited by your age and service) together with a payment in lieu of notice under the Council's Employment Stability Policy..."

Mr Taylor did not recall, he said, signing that letter but the Tribunal found that he had in fact signed it although after 11 March, he had signed it on 15 March. The Tribunal also found that his employers were displeased with his letter and they asked him to write a slightly altered version - that was Mr Rush, the deputy chief executive - and that is to be found at page 42. There is the important alteration in the second paragraph, the payment was to be not simply 'in lieu of notice' but 'in lieu of statutory notice' and that was consistent with what turned out to be the position, that the authority was only prepared to offer, I think it was, 12 weeks in place of 6 months pay in lieu of notice.

On 12 March Mr Standen took it on himself to write a letter to Miss Wilkes as though they were at arms length (p38) and he wrote:

"Dear Miss Wilkes

Post HM 83 - Voluntary Redundancy

I would refer to Mr Taylor's letter to you dated 11th March 1996..."

I would say that Mr Standen had seen this letter unsigned on Mr Taylor's desk. Mr Taylor's letter, which I have referred to, was not sent until the 15th at any rate. But he had seen it and he wrote:

"I would refer to Mr Taylor's letter to you dated 11th March 1996 which indicated the Council's acceptance [of] your application for voluntary redundancy and I outline below the terms and conditions under which your employment with the Council will be terminated."

There they were, substantially the same as Miss Wilkes, with Mr Standen's assistance, had stipulated for. Mr Standen signed and sent this letter and Miss Wilkes, as one might say, cool as a cucumber, signed, saying "thank you very much":

"I agree to the termination of my contract of employment on the grounds of voluntary redundancy and in accordance with the terms indicated above. I declare that I have not been offered alternative employment with this Council, or any other Local Government Authority, which commences within four weeks of the termination of my contract on 31st March 1996."

She signed that on 13 March 1996.

Well, as the Tribunal said, they were not going to decide whether Mr Standen had any authority to send this letter. As I say, he was presuming on a letter from Mr Taylor which had not yet been sent, he was presuming that he would get authority from Mr Rush and, in due course, when Mr Rush found out about this, Mr Rush was far from pleased. He admonished Mr Standen and insisted that a different letter be written and that is to be found at page 39.

It purports to be dated 12 March as though it were the same letter, or in place of the same letter, in fact it was clearly sent later. It could not have been sent until 14 March at the earliest on the Tribunal's findings and that letter, and it is the vital letter, contains a quite different term with regard to statutory rights. In addition to the statutory redundancy payment and the extra severance payment under the compensation for redundancy regulations as before, the letter now said:

"In accordance with your statutory rights you are entitled to 11 weeks notice and therefore you will be paid a payment in lieu of this notice period which is equivalent to £2,903.00." [in place of a payment of more than £6,000, as I have said, in the letter which Mr Standen had originally written... nearly £7,000].

Well that letter was sent and on 18 March Miss Wilkes, signed it. She signed it certainly within three days of receiving it because it could not have been sent, as is clear from the dates in the Industrial Tribunal findings, before 14 March. So, there was a letter the postscript to which Miss Wilkes had signed, "I agree to the termination of my contract of employment on the grounds of voluntary redundancy and in accordance with the terms indicated above."

There are several things to be said about that letter. First of all Miss Wilkes was a friend of Mr Standen's and he, no doubt, advised her throughout. They were shortly to get married. The second point is this, that in referring to 'voluntary redundancy' it might mislead anybody who had not been through the history, as we have been taken through it, into thinking that this was a redundancy situation; that the employee was about to be dismissed for redundancy. She herself had used the same expression, 'voluntary redundancy'. All paraphrases, such as 'redundancy situation' and so on, are apt to mislead. If it had simply been a case of being put as a resignation that might well prejudice Miss Wilkes fairly seriously in the matter of Social Security Benefits and, whether for that reason or otherwise, it is often put as voluntary redundancy when it is nothing of the sort. But this letter also begs a number of other questions which, of course, the Industrial Tribunal had to consider.

Was this a case of Miss Wilkes volunteering for redundancy in the conventional sense? One knows that when an employer can see quite plainly that he is going to have to reduce his workforce the commonest thing in the world is to say "are there any volunteers for redundancy? The terms will be as follows..." Often in that situation a number of people do put their hands and say "yes, I volunteer" and after they have been, one hopes, advised and have consulted their union, if they have a union, the employer then dismisses them. Was that this situation? Was the employer in this situation saying to the employee, "right, you are dismissed" - was that the reality of it?

Was it a case, and this is a different possibility, of saying "resign or be dismissed. You know very well you are going to be made redundant and you can go quietly or you can go noisily but you are going to be dismissed, now, are you going to resign?"

Those were all matters which the Tribunal had to consider because not everything, unfortunately, which is written on paper represents reality. Very often people like to dress up their transactions as something which in fact they are not. In this case the Tribunal had to look into it. What is the position in law?

Under section 139 of the Employment Rights Act 1996, which is now the provision:

"For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to -"

and the criteria for redundancy are set out:

(a) the fact that his employer has ceased or intends to cease - (i) to carry on the business... or

(ii) to carry on that business [in that place]... or

(b) the fact that the requirements of that business - (i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in [that] place...

have ceased or diminished or are expected to cease or diminish.

But one must note that redundancy under that statutory definition depends in each case on the employee being dismissed. An employee who resigns, without being constrained to do so, resigns by agreement or resigns unilaterally, is not dismissed by reason of redundancy and, of course, the Act in section 136 gives the three situations, the only three situations, in which an employee is dismissed:

(a) the contract [must be] terminated by the employer...

(b) [it must be] a fixed term contract which expires without being renewed, or

(c) the employee terminates the contract... in circumstances in which he is entitled to do so without notice by reason of the employer's conduct.

A non-lawyer might need (c) explained; that means that the employer has been guilty of a breach which goes to the root of the contract, which shows that the employer will no longer treat the contract as binding on him; the employee is then entitled to say, "if that is what you are going to do," or "if that is what you have done", "I am entitled to say our contract is at an end and you have, in reality, dismissed me." Those are the only three situations.

As I say, this Tribunal had to look into these matters. They made a number of important findings about the extent of Mr Standen's involvement in these various comings and goings in the council and with regard to Miss Wilkes' employment. They go through the history of it rather more fully than I have done. They find at one important point that they are unable to accept Mr Standen's assertions that he had not discussed this question of voluntary redundancy and it is right to say, in fairness, that they do not accept everything else that is said to them by the council and their officers either. They refer to the essential letter of 12 February, which I have just read.

Having gone into all that and the rewriting of the letters, which I have referred to, the Tribunal refer to the submissions which were made to them. The submission for the Applicant which was made to them was that "the Applicant was constructively dismissed", that she was "forced to apply for voluntary redundancy as a result of the behaviour of the Respondents". The Respondents had "wrongly declared the Applicant's post redundant".

That, so far as we can see, as a statement of fact is a travesty. They had done nothing of the sort. They had contemplated that her post might be redundant but they had resolved to consider that matter only when she returned to work.

The submissions go on,

"They had not advised the Applicant and although they had deferred their decision on the Applicant's redundancy, the Respondents had effected changes within the Housing Finance Department which adversely affected the Applicant's position. No consultation had taken place and no consideration had been given as to the pool of employees from which a redundant employee could be selected. The Respondents had failed to implement the Employment Stability Policy.

In the alternative, the Applicant claimed breach of contract by the Respondent in failing to pay six months' salary in lieu of notice under the Employment Stability Policy. The signing of the acceptance on 18 March [the letter at p39 which I have referred to] was not binding as it was not made under the auspices of ACAS or through a compromise agreement.

The Applicant sought payment of the 5½ days' holiday wrongfully withheld."

Well there were submissions by the Respondent and the Respondent referred the Industrial Tribunal to the important case of Birch & Humber v University of Liverpool

[1985] ICR 470

. That was a decision of the Court of Appeal. The headnote says:

"The employer, forced by economic circumstances to make a substantial reduction in its staff, issued a series of circular letters inviting its employees to take advantage of an early retirement scheme. Under the scheme, which was expressly stated not to be a redundancy scheme, any application for early retirement was subject to final approval by the employer."

The two employees did apply and the Industrial Tribunal found, in favour of the employees, that their contracts of employment had been terminated by the employer and they found that there had been a dismissal, within the meaning of section 83 of the Act. This Tribunal, the Employment Appeal Tribunal, reached a contrary conclusion and the employees then appealed to the Court of Appeal.

It was held, dismissing the appeal, that the question whether on the agreed facts the Industrial Tribunal was entitled to hold that there had been a dismissal within the meaning of section 83 was a question of law. Secondly, that on its true construction, section 83(2)(a) of the Act (as it then was) the Employment Protection (Consolidation) Act 1978

"only defined as 'dismissal' the unilateral termination of a contract of employment by the employer, with or without the employee's consent, and it did not include in that definition a termination of the contract of employment by the mutual agreement of both parties; ..."

and the dicta to which our attention is particularly invited are by Ackner LJ,

1985 ICR 479

, letter F onwards; he said,

"Miss Cotton has shown us no authority for the proposition, which I find a strange one, that the mere fact that the requirement of the business for employees is expected to diminish, should make it in law not possible to have a determination of the contract by mutual consent. I put to her the simple example of an employer who envisages some time in the future, e.g. because of new technology, the need to slim down his workforce and makes an offer to those who are prepared to resign rather than wait to volunteer for redundancy and supports that offer with a financial inducement which is far in excess of what is likely to be obtained under the redundancy legislation. It seems to me clear that in such a situation, assuming no question of any coercion of any kind, that if that offer is accepted there can be no question of there having been a dismissal. Yet that is a situation which presupposes what has been referred to conveniently as a 'redundancy situation'."

There is also a passage in Slade LJ's judgment, at p 483, letters E and F; having referred to the statutory provision for redundancy and dismissal;

"In my opinion this subsection, on its true construction, is directed to the case where, on a proper analysis of the facts, the contract of employment is terminated by the employer alone. It is not apt to cover the case where, on such an analysis, the contract of employment has been terminated by the employee, or by the mutual, freely given, consents of the employer and the employee. In a case where it has been terminated by such mutual agreement, it may properly be said that the contract has been terminated by both the employer and the employee jointly, but it cannot, in my view, be said that it has been terminated by the employer alone.

The authorities, I think, require one to look at the realities of the facts, rather than the form of the relevant transactions, in deciding whether the contract been 'terminated by the employer' within the meaning of the subsection."

At the next page, Slade LJ continues at letter G:

"...the highest it can be put on the facts of the present case is that the university had given implicit warnings of possible redundancies to come. This is not, on its agreed facts, a case where the employees had been told that they were personally no longer required in their employment, or where they had been expressly invited or placed under pressure to resign. It is therefore distinguishable, for instance, from..." [and he refers to a case from which it can be distinguished].

So it was the duty of the Industrial Tribunal to look at this letter and all the surrounding circumstances, many of which I have referred to, and say: "did this mean what it said? Was this a genuine agreement under which this lady was to leave by mutual consent or was it, in reality, something of a sham? Was it something which was procured by pressure by the employer: 'you are going to be sacked so you might as well resign'? Was it a case of asking for volunteers? 'Will you volunteer? If so I will sack you' and Miss Wilkes saying 'yes, I volunteer:' 'All right, we will sack you.' Or was it a genuine document, as it appeared to be?' On its face it was a situation in which redundancy had not yet arisen (although it was expected that it might do so) in which the lady had asked whether she could go, by consent, and an agreed termination was reached. Did the words "voluntary redundancy" affect it so that in truth they showed that it was a redundancy and not a voluntary and mutual agreement to resign? That is what they had to consider.

They set out their findings of fact and, as I say, it is a long and careful decision. They say

"56 From October 1995 until January 1996 Mr Taylor was undertaking a review of his department [which] resulted from the introduction of the new computer and the need to limit costs..."

They say, after further consideration,

"59 Therefore, as at 12 February 1996 no decision had been made to make the Applicant redundant, or to declare that her post was redundant. The Applicant remained part of the team in the Housing Finance Department.

61 By writing her letter of 12 February 1996, the Applicant had 'jumped the gun' in applying for voluntary redundancy. She had not received any official approach from the Respondent and the only information she had came from the memoranda prepared by Mr Taylor during the carrying out of his review.

62 On 23 February, Mr Taylor had written to the Applicant to reassure her that her post awaited her on her return from sick leave. [She] was not prepared to accept Mr Taylor's assurance and decided to force through her application for voluntary redundancy.

63 The Tribunal find that the Applicant was not placed under any duress to volunteer for redundancy. She had received no direct approach from the Respondents and had based her application upon the debate being carried out by the Respondent's officers and not on agreed policy."

They then say they considered Birch and Humber v The University of Liverpool , to which I have already referred. They say it was necessary to consider in that case:

"...whether any pressure had been placed upon the employee to resign and, if so, was the degree of pressure such as to amount in reality to a dismissal.

65 The Tribunal have found, there was no pressure placed upon the Applicant to apply for voluntary redundancy. Having been advised that her post was still open to her, she still elected to seek voluntary redundancy and the Respondents accepted the position and negotiated the termination of her employment.

66 The Tribunal find that in reality the Applicant's contract of employment was terminated by means of a consensual agreement which was called voluntary redundancy. The Applicant was not constructively dismissed nor dismissed."

That meant, of course, that they found there had been no breach, or no serious breach of contract by the employers.

"69 The Respondents, it is said, sought to negotiate compensation in accordance with the terms of the Premature Retirement Scheme. The Tribunal find that the provisions for early retirement are not relevant to the Applicant, who was under 50 and had not worked for the Respondents for 15 years. The only basis upon which the Applicant could have been considered under the Premature Retirement Scheme was if the circumstances so required during the processes of [Compulsory Competitive Tendering]. This was not a case in which CCT was applicable.

70 The Applicant alleges that the Employment Stability Policy has been incorporated into her contract of employment.. [She would, under that, have been entitled to six months' notice and therefore she is entitled to six months' salary] which would incorporate her statutory contractual notice pay. The Respondents deny this and maintain that the Employment Stability Policy was not incorporated in the Applicant's contract. The Tribunal, for reasons set out herein, have not found it necessary to decide upon this issue.

71 The Tribunal find that because there was a consensual agreement to terminate, the parties were free to negotiate their own terms, and did so. The Applicant says that she was placed under duress as a result of the comments concerning Mr Standen's employment and she felt obliged to accept the terms which were offered. The Tribunal do no accept the Applicant's submission. If she had chosen to reject the terms, it would not have made the position of Mr Standen any better or any worse. The terms could have been further negotiated, or the Applicant could have decided not to terminate her employment. The Applicant accepted the terms of her own free will and is bound by them. The Tribunal find that the Applicant has no right to receive any further payment from the Respondent."

They therefore find that she was not dismissed, not constructively dismissed, not unfairly selected for redundancy and that her employment was terminated by means of a consensual agreement and, they say, that it was freely negotiated. They found that she was not able to take five and a half days holiday because her absence was due to illness, not the exigencies of the service, so that she was not entitled to holiday pay.

So it came back to this; was this a genuine letter meaning what it said? They found that it was and it did, and it was not voidable for duress. They might have considered - they were not invited to consider - whether, this letter being inconsistent with the earlier letter, it was a case for rectification. They were not asked to say that. It quite manifestly was not such a case, on their findings.

In those circumstances could the Applicant - having received this letter and written what she did at the bottom, signing to indicate her assent - could she have said "oh yes and, by the way, I have agreed to terminate our contract on these terms but you are in breach of that contract in various ways, and I shall now sue for various payments under the terms of that contract"? - that was urged on us again this morning. It is an impossible contention, because here the Tribunal have found that this was a termination of the parties' contractual obligations. If there had been any question of the Applicant saying: "I am prepared so far as this goes to sign this, but I am going to assert further claims in contract against the council," one knows she would, in effect, be putting forward a counter-offer and the council would have had to consider that and the question whether they would have agreed to any such thing would have been very much a matter for them. That was not what happened and in those circumstances the Applicant cannot possibly say, "although I have terminated the contract on terms, there are various terms of my previous contract, now terminated, which I wish to sue on," that is manifestly an absurdity.

The Tribunal went as patiently into this, one feels, as they could have done. They have considered all these submissions. We have looked at what was said to them, there were a hundred pages of submissions made by the Applicant; today Mr Standen, to whom we are grateful, has addressed 24 pages of submissions to us. Very largely those are a repetition and an elaboration of the submissions which had already been made to the Industrial Tribunal and the only criticism which is made of the Industrial Tribunal, so far as we can see, is that they should have given - in one way or another - they should have given effect to those submissions. They did not, for the reasons which they have spelled out - that this was a genuine agreement, that it was not procured by duress, that it was not something else dressed up, a sham. It goes without saying that the decision might, hypothetically, have gone the other way. The Tribunal heard the evidence. We have not heard the evidence. They might have decided the matter differently. It is for them to say what the facts are. We have, under our constitution, no power whatever to consider or reconsider facts and evidence. Our duty is confined to seeing whether the Tribunal has made any error of law. We have looked as carefully as we can at this Tribunal's decision, which is a long and careful one, we cannot find any error of law in it whatever.

It follows, therefore, notwithstanding what has been said to us by Mr Standen, that this appeal has to be dismissed and we also would say, for completeness, that we reject the suggestion that the council was acting ultra vires in making the payments which it did; that argument appears to us to be entirely without foundation. We also reject as being entirely without foundation the suggestion that the redundancy, which was contemplated by the authority before 12 February, was not in fact bona fide and that the Council in some way had indirect motives in mooting that possibility; that was not the Industrial Tribunal's decision and in our view there is no foundation for it. We are also satisfied that there is no substance in the contention that these payments which, so far as we know, Miss Wilkes (Mrs Standen as she now is) is only too anxious to accept are, in fact, being paid, in part at any rate, ultra vires. So in those circumstances the appeal falls to be dismissed. Those are the reasons of us all.