MR D F MILLER v BARNARDOS [2001] UKEAT 1076_00_1402

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1076_00_1402Case No Appeal No. EAT/1076/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D F MILLERAPPELLANTBARNARDOSRESPONDENT
Before
MR COMMISSIONER HOWELL QCMRS D M PALMERMS B SWITZERDate 14 February 2001
[1]APPEARANCES For the Appellant APPELLANT IN PERSON MR COMMISSIONER HOWELL QC : In this appeal which is before us today for Preliminary Hearing Mr Dave Fitzgerald Miller seeks to have set aside as erroneous in law the decision of the London South Employment Tribunal dismissing a claim by him of Unfair Dismissal from his employment with the Respondents, Barnardos the well known charity, and ordering him to pay the sum of £150 in respect of the costs incurred by Barnardos in defending that application.[2]The Tribunal's decision was contained in Extended Reasons sent to the parties on 28 July 2000 after a hearing on 20 July 2000 and is at pages 5 to 10 inclusive of the Appeal file before us. The Originating Application then before the Tribunal, the second Originating Application to which we shall have to refer, had been presented by Mr Miller on 13 January 2000 and a copy of it is at pages 63 to 64 of the Appeal file. As originally presented it alleged discrimination, infringement of rights and unfair dismissal on the part of Barnardos, and particularly founded on the termination of his employment at the end of December 1999. The Originating Application claimed that Mr Miller believed that he had been subjected to victimisation which had led to his employment being terminated on 31 December 1999 and referred to " an agreement forming part of a settlement which I believe has infringed my rights."[3]The sequence of events which led up to that Originating Application being presented is conveniently set out in an earlier decision of the same Tribunal on an application by the Respondents to strike out Mr Miller's proceedings on that second Originating Application. The Tribunal's Extended Reasons on the Striking Out application which was heard on 27 April 2000, were sent to the parties on 4 May 2000 and are at pages 40 to 44 of the Appeal file before us. As recorded in the Chairman's Statement of Reasons there:
"2. Mr Miller presented an Originating Application to the Tribunal in March 1999, in which he brought a claim under the Race Relations Act. The full merits hearing of that case was listed for five days from 13 December 1999. At the conclusion of the first day, the Applicant had given his evidence in chief but no other evidence had yet been heard. The Chairman dealing with the case gave an indication at the end of that day that settlement discussions might be sensible. In addition there were likely to be difficulties in terms of concluding the case within the time allocated as it was in any event likely to last more than five days and the Chairman had a difficulty on the fifth day. 3. There apparently then took place long discussions between the representatives on 13 December and agreement was reached in principle. This agreement was incorporated on 14 December 1999 into a document entitled 'Decision' and terms and conditions of the settlement were attached. It was signed by both representatives on 14 December 1999. 4. The relevant terms for our purposes were first that the Respondent had to pay the Applicant the sum of £20,000 as damages in full and final settlement of the Applicant's complaint of race discrimination and victimisation. There was no admission of liability. 5. The second significant term was that the Applicant undertook to withdraw the Originating Application on receipt of the £20,000. Third, the parties agreed the terms of a reference for the Applicant. This decision and the terms of the reference were submitted to the Tribunal and following the hearing the Tribunal drew up a Decision. It is recorded that: 1 "
The terms of settlement having been agreed between the parties, in accordance with the terms set out in writing, by consent, this Originating Application is withdrawn upon compliance by the Respondent with the terms of settlement on or before 23 December 1999. 2 Liberty to apply on or before 6 January 2000 and if no application is made by this date, this Originating Application is dismissed on withdrawal by the Applicant". 6. The Respondent paid the Applicant the sum of £20,000 and that money has been cashed by the Applicant. 7. The next thing that occurred was that on 6 January 2000 the Applicant telephoned the Tribunal. He telephoned again on 7 January and twice on 7 January and twice on 10 January and on each occasion spoke to a clerk of the Tribunals. He indicated that he wanted to re-open the matter. 8. In the event of the Applicant presented a second Originating Application on 13 January 2000. In that Originating Application he complained of discrimination, infringement of rights and unfair dismissal. The details of the complaint related to the termination of his employment by his employer. He said his complaint was apparent from the agreement which formed part of the settlement which he believed had infringed his rights. In essence he said that in his first application to the Tribunal his employment was not in question and therefore the termination was caused by the bringing of the complaint to the Tribunal. The Respondent entered an appearance on 27 January 2000 and resisted the complaint. In particular it was stated that the employment contract was brought to an end by mutual consent as part of an agreed settlement of the first complaint and they attached the terms of the settlement and the order. It was further stated that at the end of the first day of hearing negotiations took place at the suggestion of the Chairman and that the suggestion that the Applicant should leave the Respondent's employment with a financial settlement was put forward by the Applicant's counsel as the Applicant's preference. The Respondent's case is that they were prepared to negotiate about other options up to that point. 9. At the hearing on 27 April, the Applicant disputed that the suggestion of the termination had come from him."[4]The upshot of that application by the Respondents to have the present Originating Application, (that is the second application) struck out, was that the Tribunal decided to reject it; giving their reasons as follows in paragraph 16 " We considered that the applicant may well face considerable evidential and legal difficulties in establishing the claim in the second Originating Application. However, at this stage we consider that it would not be right to strike out his application, principally because there is a conflict as to the facts at the centre of his allegations. We could not resolve such a conflict on this application "[5]Accordingly the proceedings on the second Originating Application, which is the one that gives rise to the appeal before us, went to a full hearing which took place on 20 July 2000. Before turning to what happened on that date, we should refer to the terms of the original settlement agreement which brought the proceedings on the first Originating Application to an end, copies of which are before us at pages 71 to 72 of the Appeal file. They are signed by counsel for Mr Miller and the representative for Barnardos (a Ms Santer, or Sunter), dated 14 December 1999 and include an express provision in the following terms " 3. And the parties to this agreement agree that the Applicant's contract of employment with the Respondent will terminate on 31 December 1999" .[6]Those terms of settlement as, the Tribunal on the striking out application recorded, were duly carried into effect; and on 6 January 2000 a final Order was made by the Tribunal on the first Originating Application recording that the settlement had been agreed and that if no application had been made by 6 January 2000, (the date of the actual entry of the Order), that first Originating Application was dismissed on withdrawal by the Applicant in accordance with the agreed terms. As noted above, that was in fact what happened.[7]The claim for discrimination on the second Originating Application was withdrawn by Mr Miller after the striking-out hearing, and was formally dismissed on that withdrawal by a further Order of the Employment Tribunal signed by the Chairman on 7 June 2000, a copy of which is at page 48, that decision having been sent to the parties on that same day.[8]That brings us to the substantive hearing of the present Originating Application in which Mr Miller was seeking to assert that he still had a good claim for constructive dismissal notwithstanding the terms on which his previous Originating Application had been settled. There is no dispute that his employment had in fact come to an end on 31 December 1999, the date provided for in that settlement agreement.[9]The Tribunal's Extended Reasons for rejecting the complaint of unfair dismissal are stated in some length and it is not necessary to quote all of them, but it is possible to see the way the Tribunal approached it from paragraphs 5 and following of the Extended Reasons at page 6 of the Appeal file: '5. The outstanding issue for the Tribunal therefore was the unfair dismissal complaint. The Tribunal had to decide whether the Applicant's right not to be unfairly dismissed under Section 94 of the Employment Rights Act 1996 had been infringed. The main issue was whether the Applicant was dismissed. In the event that the Applicant succeeded in establishing that then the Tribunal had to consider whether the Respondent had established what the reason for dismissal was and whether it was a potentially fair reason within Section 98 of the Employment Rights Act 1996. If this was established by the Respondent then the Tribunal had to consider whether the dismissal was fair or unfair, having regard to all the circumstances in accordance with Section 98 (4). 6. It was not in dispute that a settlement agreement was drawn up on 14 December 1999 and signed by Mr Mohinderpal Sethi, Counsel for the Applicant and by Mrs Rose Sunter the Respondent's Solicitor. The terms of settlement were as follows. The Tribunal then recited the full terms of the settlement, the material provisions of which we have already referred to, and having done so, continued " 5[sic] By a decision which was entered in the Register and sent to the parties on 6 January 2000, it was recorded that the Tribunal decided that a settlement had been agreed between the parties in accordance with the terms set out in writing by consent, the Originating Application was withdrawn upon compliance by the Respondent with the terms of settlement on or before 23 December 1999. The Applicant was given liberty to apply on or before 6 January 2000 and if not application was made by this date the Originating Application was dismissed on withdrawal by the Applicant. 6. The Applicant did not exercise his liberty to apply under that settlement agreement but issued a second Originating Application as already set out. 7. The Applicant's reference to infringement of his right was a reference to Section 205 of the Employment Rights Act which entitled employees to complain of unfair dismissal to a Tribunal. This added nothing to his substantive complaints. 8. We heard evidence from Mr Miller and from Mrs Sunter on behalf of the Respondent. Both Mr Miller and Mrs Sunter gave their evidence in chief principally be way of Witness Statements, in addition the parties referred the Tribunal to an agreed bundle of documents. 9. We reached the following findings of fact on the balance of probabilities. We accepted Mrs Sunter's account of the way in which discussions about the settlement proceeded. We also found that she and the Respondent were entitled to treat whatever Mr Sethi said to her as either the Applicant's express instructions or in the Applicant's interests on his behalf. We did not infer from the offers of alternative employment and exceptional offer of relocation expenses which were usually offered only to redundant employees that the Respondent was negotiating in bad faith or trying to induce the Applicant to leave his previous place of work. We find that Mr Sethi put forward the suggestion of the termination of the [Applicant's employment with the] Respondent. This was on the Applicant's instructions. 10. We concluded that an agreement was voluntarily reached between the parties and that the Respondent either directly or through Mrs Sunter did not place any duress on the Applicant in reaching that agreement. 11. The parties mutually agreed to bring the contract of employment to an end without there being either a dismissal or a resignation. Throughout the negotiations Mr Miller had the benefit of the advice Counsel who he trusted and who he believed to be expert in employment law matters. He did not raise with his Counsel expressly his wish to resurrect the matter of the termination of the employment. The first claim was settled. The settlement was not concluded on 13 December but on 14 December although negotiations had taken place on 13 December 1999. The Respondent did not propose to Mr Sethi that the Applicant could not return to work at his previous place of work during the negotiations on either 13 or 14 December."[10]The Tribunal then summarised the relevant law and the submissions of the parties which in paragraphs 14 and 15 were identified as being (on behalf of the Respondent) the primary submission that the Applicant had not been dismissed, and (by Mr Miller himself) that he had not entered into a mutual termination agreement.[11]The Tribunal expressed its conclusions to paragraph 16 of their Extended Reasons as follows:
"16. We were completely satisfied that there was no dismissal in this case. We were satisfied that the Respondent had negotiated in good faith with the Applicant's Counsel and that they had not specified that they would no longer allow the Applicant to return to his former place of work. Having heard evidence from on of the two parties directly involved in the negotiations; we saw no reason to reject Mrs Sunter's evidence. It was consistent with the Respondent's offer to the Applicant during negotiations of the considerable expense of underwriting a Diploma in Social Work course for two years and/or providing the Applicant with relocation expenses for a period of 4 years if he chose to take up alternative place of employment that they did not wish to compel his departure from their employment. We also had regard to the agreed evidence that the Respondent had given the Applicant good appraisals and were content to provide a good reference to the Applicant at the termination of his employment. We accepted Mrs Sunter's evidence that it was the Applicant's Counsel who took the lead in the negotiation discussions. In those circumstances, we concluded that there was no dismissal in this case and that the Applicant's complaint under Section 95 of the 1996 Act fails."
[12]The Tribunal therefore dismissed the application based on alleged unfair dismissal and in view of the way the matter had been pursued by the Applicant notwithstanding the earlier agreement and what was said on the application to strike out, they made an award of £150 towards the Respondent's costs to be paid by him. That award is not as we understand it the subject of any submission to us, but to place matters beyond doubt, we are completely satisfied that that was a proper exercise of discretion by the Tribunal in the circumstances given their decision on the substantive claim, and no arguable point of law can arise on it.[13]That therefore brings us to the subject of the present Appeal, which Mr Miller seeks to pursue on a number of grounds which he has set out in some length in a non-legal way in his Notice of Appeal dated 25 August 2000 at pages 1 to 4 of the Appeal file before us, and in a 3 page skeleton argument dated 5 February 2001, all of which we have taken into account. He has helpfully amplified and focused the various points he seeks to argue on the Appeal in his oral argument before us today.[14]The first major point he seeks to take forward to a full hearing of the Employment Appeal Tribunal is that the Employment Tribunal in rejecting his substantive claim misdirected themselves, alternatively reached an unreasonable and perverse conclusion, in holding as they did that no dismissal by the employer had taken place. The first way he put that was that there was no evidence to support the conclusion they reached to that effect. That appears to us unarguable, as there plainly was evidence before the Tribunal in the form of the express terms of agreement to which we have already referred, which could properly have led any Tribunal to the conclusion that there was a consensual termination of employment in this case and, as the Tribunal themselves held, neither a dismissal nor a resignation.[15]The second alternative way in which that major point is put is that accepting (as Mr Miller did for the purposes of this part of the argument) that there had been such an agreement, he said that the Tribunal had perversely misunderstood its effect. He said that the agreement about his departure date should have been interpreted by the Tribunal only as recording the acceptance by him of what he said was a repudiatory fundamental breach by the employer of his contract of employment, by their having required him to work at a different place of employment from the one at which he had agreed to work. He said he made clear through his Counsel that that was his position at the conclusion of the first day's hearing on 13 December 1999 when the question of a settlement had been canvassed by the Chairman and discussions had taken place. He agreed that he had given no formal notice to the employer to treat the contract as terminated at that time, but he said that had been made clear on his behalf by his Counsel in the negotiations.[16]Consequently he submitted to us that the Tribunal's interpretation had wrongly had the effect of excluding him from bring a claim for unfair constructive dismissal based on facts which he said amounted to a dismissal by the employer contrary to Section 95(1) (c) of the Employment Rights Act 1996. This is the provision making what is commonly referred to as a constructive dismissal count as a dismissal for the purposes of the Act and for the purpose of bringing proceedings for unfair dismissal. On that basis Mr Miller submitted that that term of the agreement in excluding him from pursuing a claim for constructive dismissal, was void under Section 203(1) of the Employment Rights Act 1996 which is the provision that:
"1. Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports: (a) to exclude or limit the operation of any provision of this Act; or (b) to preclude a person from bringing any proceedings under this Act before an Employment Tribunal."
[17]We have no hesitation in rejecting that way of putting the major argument as unarguable too. The idea of Mr Miller's contract of employment having been summarily terminated by him on 13 December 1999, so as to give rise to a continuing right for him to pursue claims for unfair constructive dismissal notwithstanding the settlement agreement expressly reached on the following day, is in our judgment completely inconsistent with the express terms of the settlement agreement itself. Paragraph 3 in particular provided that the contract of employment was not to be terminated until 31 December 1999 and was then and only then to be brought to an end by the effect of that agreement as recorded in paragraph 3 itself. We consider the Tribunal rightly found as a fact that that was by mutual agreement, as recorded in paragraph 11 of the Extended Reasons to which we have referred: as they put it, without there being either a dismissal or resignation. As his very competently presented address to us made clear, Mr Miller is an intelligent and articulate person and we do not consider there is any ground whatever for criticising the Employment Tribunal in this case for having proceeded on the basis that he was bound by the agreement concluded on his behalf by Counsel: of all the material provisions of which he demonstrated to us that he not only was aware, but had been aware at the time the agreement had been concluded.[18]In our judgment to contend that an agreement between an employer and an employee on the termination date for an employment contract in circumstances such as these was an agreement contrary to Section 203 of the Employment Rights Act , either because it amounted to converting a existing employment contract to a fixed term contract or to exclusion of a constructive dismissal claim under Section 95(1) (b) or (c), would be an absurd argument and we reject it. In our judgment there is no question of the Tribunal having erred in law by not having construed what was done in the way put forward by Mr Miller. We therefore reject the contention that there was an arguable error, as he put it, in not having looked at the question whether he was constructively dismissed by acceptance of the employer's repudiatory conducted on 13 December 1999.[19]We would also observe in this context that the notion of such an acceptance as Mr Miller suggested, the acceptance of an irretrievable breakdown of trust and confidence between the employer and the employee, is also completely inconsistent with the actual claim he made in his second Originating Application when, as is apparent from page 64 of the Appeal file before us, he clearly indicated at that stage that what he was seeking was reinstatement in his previous position and not compensation.[20]A further argument which, Mr Miller agreed that he had not put forward at all before the Tribunal but we allowed him to canvas before us, was that to construe provision 3 of the agreement in the way the Tribunal did and we have held justified would be contrary to Section 72 of the Race Relations Act 1976 as being a term for unlawful discrimination contrary to Section 4(2) (c) of that Act. This he said applied because by parallel with what happens under Section 203 of the Employment Rights Act such a provision of a contract infringing the Race Relations Act is rendered void by Section 72. When we pressed Mr Miller for how this provision could apply to the provision of the agreement for consensual termination of his employment, he said the discrimination against him in that provision consisted in his not being allowed to pursue his unfair dismissal claim despite the settlement agreement, but he was unable to satisfy us that there was any element of unlawfulness or discrimination contrary to the Race Relations Act in that term which brought it even remotely within the scope of Section 72. We accordingly reject that ground of criticism of the Tribunal's decision (which was as we say was not presented to the Tribunal itself) as unarguable; and we further record that as noted above the second Originating Application did originally include a claim for discrimination, but that was withdrawn and dismissed.[21]A number of further points on the Employment Tribunal's alleged failure to give effect to Mr Miller's rights were taken on the terms of the employment contract itself, which of course we have not seen. Mr Miller said the Tribunal had erred in failing to take account of provisions in the employment contract about notice, about sick pay and the provision for the location of his place of employment. On analysis we have been unable to see that those additional points added anything to the complaint about the Employment Tribunal's failure to consider his claim as one of unfair constructive dismissal for alleged fundamental breach, which what we have already dealt with, and we accordingly reject those further points on the ground that they do not disclose any separate grounds of appeal.[22]Finally Mr Miller submitted that there was an arguable element of bias or improper procedure on the part of the Tribunal in the way that proceedings had been dealt with, and in particular in the same Chairman having dealt both with the striking out application on 27 April 2000 which was decided in his favour and the substantive hearing on 20 July 2000 which is the one that went against him and is under appeal to us. We have been unable to see that there is any arguable ground in that point either. In the first place Mr Miller referred us to correspondence at pages 45 to 47 of the Appeal file before us where following the issue of the Tribunal's Extended Reasons for declining to strike out his application, the Solicitors to the Respondent had written drawing attention to the provision in paragraph 3 of the terms of settlement and inviting the Chairman to consider whether that provision agreeing that the contract of employment would terminate on 31 December 1999 should be referred to specifically in the recital of facts in the Tribunal's statement of reasons issued on 4 May 2000. That was responded to by a Tribunal clerk at the direction of the Chairman on 24 May 2000 in the following terms:
"Thank you for your dated 5 May 2000, which has been considered by the Chairman, Ms C Hyde, on her return from annual leave. She agrees that the inclusion of terms numbered 3 is highly relevant, given the Applicant's current claim. However, she considers that the term is sufficiently referred to in paragraph 8 of the Respondent's notice of appearance. In all the circumstances, your comment has been noted, but the Chairman does not consider that it is necessary to amend the decision"
. In our view there is nothing in the suggestion that that exchange of correspondence discloses an improper attitude or bias on behalf of the Chairman. It does not appear to us to indicate any view being taken by the Chairman on the outcome of the case one way or the other. She simply confirmed, as was beyond all conceivable doubt, that the term about the consensual date of termination of Mr Miller's employment was a highly relevant matter in the second Originating Application. We have been unable to see that any arguable ground has been put forward by reference to that exchange of correspondence for saying that there was some error or impropriety on the part of the Tribunal.[23]The second point taken under this head was that there had been an infringement of the Employment Tribunal's own rules of procedure by the same Chairman having dealt with what Mr Miller described as a "pre-hearing review" , but was in fact the application by the Respondents to strike out the proceedings altogether on 27 April 2000. That complaint was raised by way of an application to the Chairman for the substantive decision to be reviewed and is, in our judgment, entirely refuted by the decision of the same Chairman containing reasons sent to the parties on 16 August 2000 at pages 58 to 60 of the Appeal file before us, on the wholly correct ground that the proceedings before the Tribunal on 27 April were not a pre-hearing review. They were the substantive hearing of the Respondent's application to strike the proceedings out, and neither by reference to the Tribunal's own rules of procedure nor on any more general ground of a fair judicial procedure can we see that there is any arguable reason for saying that what the Chairman and the Tribunal did in those respects was defective.[24]No other point to raise on arguable ground of law appears to us to be put forward in the notice of appeal or the skeleton argument or in the oral argument presented to us this morning, and accordingly for those reasons we now unanimously dismiss this appeal. [Mr Miller applied for leave to appeal to the Court of Appeal.][25]We have not been satisfied that there is an arguable point of law involved here to warrant the attention of a full Employment Appeal Tribunal, and for the same reason we do not think that there is a point to merit the attention of the Court of Appeal, so we dismiss the application he has now made to us for leave to appeal and therefore if he wants to pursue it further he will now have to make a renewal application to the Court ofake a Appeal itself.