Ellison v Governing Body Of Northolt High School [1998] UKEAT 679_98_0111

EAT
Ellison v Governing Body Of Northolt High School
[1998] UKEAT 679_98_0111 · 1998-11-01

JUDGE D PUGSLEY :

This case is listed under a procedure to identify where there are any arguable points of law. The case arises out of a decision of the Industrial Tribunal, London North, where they decided that the Applicant's claim for unfair dismissal by way of constructive dismissal is rejected.The circumstances are that Mr Ellison was employed as a teacher from 1 September 1989 until the termination of his employment on 31 August 1996. He was a science teacher. This was a grant maintained school.The essence of Mr Ellison's case was that he was constructively dismissed and he referred the Tribunal to the case of Woods vWN Car Services (1982) ICR 693. That case has been followed in numerous other cases and most recently by the House of Lords in the case of Malik v BCCI which, although concerned with stigmata damages was nevertheless concerned with the issue of mutual trust and confidence. It is I think impossible to improve on the language of Brown-Wilkinson J, as he then was, where he sets out the circumstances where, by a cumulative series of breaches, an employee is squeezed out.There is no exhaustive test as to what can or cannot constitute a breach of that term. It is unnecessary to deal in great length and, indeed, it would if I may say so, be offensive to Mr Ellison to do so, with the course of complaint that was made against him. It involved the fact that there were certain ways in which he was criticised and subject to certain disciplinary proceeding arising out of certain complaints made against him. Mr Ellison recognises now that the ambit of our powers is limited. We are not a fact finding body. We are not able to overturn any question of fact by a Tribunal and we direct ourselves rightly that a Tribunal had the opportunity of hearing witnesses, of seeing the context in which they gave evidence and understanding the chemistry of the case.Mr Ellison was unrepresented but, if one may so, he put his finger - with a homing instinct for what is right - on what the essence of his case was. There is trust and mutual trust and confidence in the breach thereof. The Tribunal directed themselves in paragraph 3 as to the requirements of mutual trust and confidence and again in paragraph 21, where they said this:
"In order to succeed, the Applicant was obliged to show that there had been in the context of this case a series of acts such that would when taken together undermine the employee's position and his trust and confidence, that he resigned in response to those acts and that he did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal."
The Tribunal then went on to set out their conclusions and, effectively, they said this: they found no substance on the merit for the Applicant's complaints in respect of the "Esson" matter, nor in respect of the "Clempson" matter...
"The Benwell case was never pursued, although it did result in suspension. The Tribunal did not find the suspension to be an act which could be taken as a breach of the fundamental term of implied trust and confidence. In view of the Applicant's continuing willingness to be re-engaged, the Tribunal did not accept as a matter of fact that his trust and confidence had in any event been undermined."
It then went on to deal with the fact that Mr Ellison had volunteered for and had taken early retirement. It is common ground - and Mr Ellison has been very open on this for which we are very grateful - that the initiative of that came from his trade union representative and that, in order to do that and take advantage of the early retirement scheme that then pertained, there were negotiations with Mr Parry, the headmaster. The Tribunal said:
"There was no question of Mr Ellison being told either expressly or by implication it was a question of taking early retirement or else... [That] Mr Ellison completed his application for early retirement. Mr Parry approved the arrangements and counter-signed it. It was then forwarded to the Teachers Pensions Agency, TPA, for approval. It was a condition of the TPA that there should be no pending disciplinary proceedings before granting such approval and for that reason the school withdrew the Benwell complaint. Mr Ellison was placed on 'garden leave' by a letter of 8 April 1996 from Mr Ashman. The contractual termination... was on 31 August 1996."
It is of course right, as the Tribunal note, that without the offer of early retirement, which he solicited, he would not have for a moment considered resignation. The Tribunal in their final paragraph say this:
"It is clear he realised that there was a distinct possibility that he might be dismissed. That prospect and the pending disciplinary proceedings did not cause him to resign. What caused him to resign was the offer of early retirement. His 'resignation' was in fact the acceptance of early retirement. It was not a response to any of the alleged wrongs. In the light of those findings, the Tribunal rejected Mr Ellison's claim that he had been constructively dismissed and it therefore rejected his claim of unfair dismissal."
As a matter of law we can find no error where they say there was no breach of the fundamental term of mutual trust and confidence. It is right to say that, although we accept the philosophic basis upon which Mr Ellison queries to what extent mankind is ever free, on the particular facts of this case, bearing in mind it was Mr Ellison's representative who solicited the offer, there was no ultimatum or innuendo: 'resign or be dismissed' but it was a realistic assessment by Mr Ellison of his position that led him to take that course.As a matter of causation we accept that the Tribunal were able to say the prospect of dismissal and the pending disciplinary proceedings did not cause him to resign, what caused him to resign was the offer of early retirement. Causation is a difficult concept. His resignation was, in fact, the acceptance of early retirement, it was not in response to any of the alleged wrongs. It depends how long the chain of causation is, but within the time frame and the perspective we do not consider the Tribunal was wrong in their view.In our view there is no arguable issue and we dismiss the appeal.