Cranley v University Of Manchester [1999] UKEAT 1052_98_2701

EAT
Cranley v University Of Manchester
[1999] UKEAT 1052_98_2701 · 1999-01-27
MR JUSTICE MORISON : The purpose of this hearing is to determine whether there is an arguable point of law in appeals which Mr Cranley wishes to make against various decisions of an Industrial Tribunal. Those decisions were made in relation to a complaint brought by him against the University of Manchester. The substantive complaint was that he had been unfairly dismissed. The second appeal related to the Tribunal's decision to refuse a review and the third appeal related to a decision of the Tribunal to correct a mistake in one of the documents under what may be colloquially described as 'the slip rule'.In advancing the appeal in this case on Mr Cranley's behalf, Miss McNeill, under the ELAAS scheme, entirely appropriately indicated to us - on the instructions of her client - that the second and third appeals were not to be pursued and they will formally be dismissed. We are concerned only with the substantive appeal against the substantive finding by the Industrial Tribunal that the Applicant was not dismissed by the University of Manchester but that his employment relationship with them terminated by mutual consent.The background to this appeal and the facts relevant to the Tribunal's decision may be shortly stated. The Applicant was employed by the University as University Veterinary Officer and named Veterinary Surgeon under the Animals (Scientific Procedures) Act 1986. He had been employed by the University since December 1980. The Applicant belonged to the AUT. In April 1995 the University introduced an early retirement voluntary severance scheme in order to attempt to reduce payroll costs. In October of 1995 a complaint about the conduct of the Applicant had been received. It was investigated and the University were minded to invoke the disciplinary procedure but it was recognised that, due to the nature of the disciplinary code, such a procedure was likely to take some four to six months before a conclusion was reached.On or about 2 November 1995 the University officer telephoned the President of the AUT, who was also the designated AUT advisor for the Applicant. The Union officer was informed of the nature of the allegations which had been made and was advised that the University were intending to invoke the disciplinary procedure. The Union officer told the University official that he was already aware of the allegations, as the Applicant had already mentioned them and it was at this stage that the Union officer raised with the University the possibility that, as an alternative to the invocation of the disciplinary procedure, an amicable settlement should be arrived at which took into account all the relevant circumstances.The University responded by saying that against the background of the scheme for early retirement and voluntary service which the University had issued in April 1995 the University would be prepared to consider voluntary severance of the contract of employment. There was an indication as to the severance terms. But the University was anxious to bring this to an immediate conclusion and, bearing in mind that previously they had found some difficulty in negotiations and discussions with the Applicant, it was the University's view - rightly or wrongly - that such discussions had been unduly protracted and difficult and, therefore, the University was anxious that if the Applicant was to accept voluntary severance a swift conclusion to the discussions should be arrived at. Accordingly the officer, on behalf of the University, imposed a deadline for the way this should be dealt with, namely, the end of the working day on 3 November 1995 - the day after the telephone call.As the President of the Union was to be away from his office on 3 November he effectively delegated the handling of this matter to his vice-president. The vice-president had never previously had any dealings with the Applicant. What then happened was set out in the Tribunal's decision. They found as a fact that the Applicant spoke with the AUT Vice- President at approximately 10'o'clock in the morning when there was outlined to him details of the financial severance package which was being offered. The Applicant put forward alternative proposals for voluntary severance by way of early retirement. The details of those proposals were communicated by the Union to the University which agreed to consider them and take advice from the pensions department.Subsequently there was a telephone conversation with the vice-president of the AUT and an offer was made on behalf of the University to permit the Applicant to retire at the age of 50, which was just over two years away, with a retirement pension of £6,000 a year. This proposal was then discussed with the Applicant who rejected it. A third set of proposals were therefore drawn up and communicated specifically to meet the Applicant's point about enhancement of pension. The University returned with yet another set of proposals in which the Applicant would remain on the books as an employee until 31 November 1997 (namely the Applicant's 50th birthday) and that the enhanced pension, which the University was prepared to offer to the Applicant, would be a lump sum of £25,500 and an annual pension, as from 30 November 1997, of £8,500. Between November 1995 and November 1997, a period of 25 months, a nominal salary of £408 per month would be paid to the Applicant instead of his usual £3,000 per month, the balance of salary being used by the University to purchase enhanced pension rights for the Applicant.There were certain other conditions attached to the offer. Namely that the agreement would have to be concluded that day and that the Applicant would not be required to report to work on any day after 3 November 1995 and that he would subsequently be banned from entering University premises after 3 November and that all the property which belonged to the University should be returned forthwith by him.The vice-president of the Union recorded in his own handwriting the details of the package being offered by the University and made some notes recording both the advantages and disadvantages of the package from the Applicant's point of view. The Tribunal found that the Union then gave details of the package to the Applicant by telephone. The Applicant promised to consider the offer.There was then a meeting which the Tribunal found, on the evidence, took place face to face between the Applicant and the vice-president in the vice-president's office. The view of the Applicant was that the package which was being offered was extremely generous and, indeed, possibly even over-generous. Therefore he instructed the Union officer specifically to confirm the details of the offer with the University and he informed the vice-president - so the Tribunal found - that if that confirmation was available from the University he, the Applicant, wished to accept the voluntary severance package which had been made available.Whilst the Applicant was seated in the vice-president's office the vice-president telephoned the University's officer, confirmed the details of the offer being made and, when those details were confirmed, the Union officer confirmed that agreement had been reached and that the Applicant would accept those terms. In the presence of the Applicant the Union officer then personally typed on his own computer, in his office, a letter of confirmation of the terms on offer and that document was handed to the Applicant at 2:20pm on 3 November and further copies were sent to representatives of the Trade Union and to the University by way of confirmation of the agreement which had been reached between the parties. Subsequently the Applicant collected his personal belongings and was escorted from the premises at the end of the working day on 3 November at approximately 5:45pm.On 6 November, the Monday, the Applicant consulted solicitors for advice. No complaint was raised by the Applicant or by solicitors as to the circumstances in which the agreement had been reached. No allegation of duress was raised. No allegations were raised by the Applicant that he had been given insufficient information upon which to reach a conclusion and no indication was given to suggest anything other than the fact that he had agreed to a voluntary severance of his contract of his employment during the course of the meeting with the Union officer on Friday, 3 November.The Tribunal was unanimously of the opinion that the Applicant's contract of employment had been terminated by the mutual agreement of both parties and had not been unilaterally terminated by the University. They were unanimously satisfied that a binding agreement had been made between the parties on 3 November 1995 and that the contract of employment came to an end in November 1997 as agreed.The dates of employment put on the IT1 show that the Applicant himself was asserting that his employment came to an end on 30 November 1997. After referring to authority, the Tribunal said this:
"6. During the course of the hearing the applicant made an application to have the case adjourned in order to enable him to seek to produce a written telephone log of telephone calls which were made by him from the University during the course of 3 November 1995. The Tribunal refused the application for adjournment made by the applicant on the basis that the applicant accepted that he made no such relevant telephone calls between 1.30pm and 2.20pm on 3 November 1995. The relevant meeting, during the course of which the applicant accepted the terms being offered by the respondent, took place at or about 2.15pm on 3 November and the Tribunal was unanimously of the opinion that whether or not any telephone calls were made by the applicant prior to 1.30pm on 3 November would not in any way affect the conclusion of the Tribunal that during the course of the meeting... at or about 2.15pm that day the applicant agreed to voluntary severance... under the terms being offered by the University."
Having abandoned appeals in relation to the two matters to which I have already referred the Appellant's representative, Miss McNeill, to whom we are grateful, invited us to consider that there were four arguable points in this case.Firstly, the Tribunal had erred in law in failing to allow the Appellant's application for an adjournment in order to obtain a copy of the telephone log. The reason why it was crucial, she submitted, was not that it would have related to the period referred to by the Tribunal in paragraph 6 of its decision but it would have been of assistance to them in determining where the truth lay in conflicts of evidence between the Applicant and the Trade Union officer. The Tribunal had found that the evidence given by the Applicant was at times confusing and contradictory and that he had changed his version of events on a number of occasions and, for that reason, they indicated that they preferred the evidence given by the witnesses for the Respondent. What is being said is that the introduction into evidence of the telephone log would or might have led them to assess the credibility of the parties and their witnesses in a different way.The second issue that was raised is that the Tribunal failed to give any real consideration to documentary evidence which showed that the Applicant continued to remain the Veterinary Surgeon named under the Animals (Scientific Procedures) Act 1986 until at least 21 February 1996. The point that is being made here is that as the named vet under that legislation there were certain statutory responsibilities which had to be complied with. By not permitting him to enter the University premises during that period the University had repudiated his contract of employment and therefore they had dismissed him.Thirdly, the Tribunal had failed to take into account a letter which he wrote to the vice-chancellor of the University and copied to his Trade Union, dated 7 November 1995, which confirmed - so it was submitted - his evidence that he did not regard himself as having arrived at a binding agreement terminating his employment contract.The fourth point that was made is that the Chairman of the Employment Tribunal demonstrated bias in two respects. Firstly, he failed to declare that he was an "alumnus" of the University of Manchester and secondly, he conducted the proceedings "in such a manner as to indicate unfairness towards the Appellant".We do not regard any of these points which have been made - and argued with conspicuous ability by Miss McNeill - as justifying a further hearing. We do not consider any of them to be arguable points of law.In relation to the telephone log; we cannot fault the decision of the Tribunal set out in paragraph 6. Even if the log would have shown that conversations might not have taken place in the precise order that had been set out in the Tribunal's decision it is clear to us, as it must have been to the Industrial Tribunal, that the crucial question was whether the parties had come to terms between 1.30pm and 2.20pm on 3 November 1995 and on that issue the telephone log would not be of assistance. Accordingly, this is not a point of law but an attempt to re-argue a point which was fully considered by the fact-finding Tribunal and, in our judgment, the appeal should be dismissed on that point.The second point seems to us to be wholly and completely unarguable. As we have pointed out, the IT1, signed by the Appellant himself, gives as his date of leaving employment as 30 November 1997. If his employment had come to an end in February 1996, as he would wish to contend, by way of constructive dismissal, then his application to the Industrial Tribunal would have been over a year and a half out of time - it was presented at the beginning of December 1997. He would not have been entitled to continue to receive the monies which were stipulated for in the settlement contract and he would not have given the dates of his employment as he did in his IT1. It seems to us quite unarguable to suggest that somehow the consensual termination of the contract had been in some way superseded by what would appear to be an administrative error on the part of the University to continue to refer in documents to the Appellant being the named Veterinary Surgeon. That is not an arguable point and we would dismiss the appeal on that point.In relation to the letter of 7 November, to which we have referred, it is to be noted that it was before the Industrial Tribunal. It is not fair to suggest that because the Industrial Tribunal do not themselves refer to this particular letter they have failed to take it into account in arriving at their conclusions. The overwhelming probability on their findings of fact was that a deal had been done between the parties as evidenced by the written document which was typed up and given to both parties by the Union officer who brokered the deal on the Applicant's behalf. The fact that the Applicant on 7 November was seeking to assert that he was still an employee does not add much, in our view, to the story which is set so clearly by the Industrial Tribunal in their written decision. Accordingly that point seems to us to be an empty one, particularly in the light of the Tribunal's findings at paragraph 3.(vi), to which we have just referred. This ground of appeal is not arguable and must be dismissed.The fourth ground, namely bias or apparent bias, can be dealt with under two heads. First, the Tribunal Chairman's failure to disclose that he was an alumnus of the University. We are told that that means that he had graduated from the University. It seems to us that the Tribunal Chairman cannot be criticised for failing to disclose that fact. It seems to us much too remote from reality to suggest that it could appear that the learned Chairman would or might be biased in favour of the University from which he had graduated many years before. All of us regard that as a point without merit.In relation to the conduct of the proceedings we have a letter from the Industrial Tribunal Chairman which simply rejects any criticisms which were made of his conduct of the proceedings as he sat with members throughout the case. We are not prepared to take such a generalised allegation as a serious attack on the integrity of the legal process which went on at this Industrial Tribunal. Sometimes in the management of a case parties have to be moved on or sometimes even dealt with quite briskly. It is unfair to deduce from proper case management that the Industrial Tribunal is demonstrating bias. Accordingly we regard the fourth ground of appeal as without merit and as raising no arguable point of law.It follows that none of the points raised in this appeal are fit for hearing at a further hearing and the appeal will therefore be dismissed.