MR G A HEATH v AUSTIN HAYES LTD [2001] UKEAT 1191_99_2301

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1191_99_2301Case No Appeal No. EAT/1191/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G A HEATHAPPELLANTAUSTIN HAYES LTDRESPONDENT
Before
His Honour Judge Peter Clark Mr R SandersonDate 23 January 2001
[1]APPEARANCES For the Appellant MR MICHAEL FORD (of Counsel) Instructed by: Mrs S Vellins Leeds Citizen Advice Bureau City Centre Office Westminster Buildings 31 New York Street Leeds LS2 7DT For the Respondent MR SAM NEAMAN (of Counsel) Instructed by: Messrs Hammonds Suddards Solicitors 2 Park Lane Leeds LS3 1ES JUDGE PETER CLARK The Appellant, Gerald Heath, suffers from learning difficulties and is disabled within the meaning of Section 1 of the Disability Discrimination Act 1995. He was employed by the Respondent Company from 19 February 1987 until his dismissal, effective on 2 May 1998.[2]Following his dismissal he presented an Originating Application to the Employment Tribunal on 14 July 1998. He complained of victimisation under the Sex Discrimination Act 1975 , disability discrimination and unfair dismissal.[3]The complaint was heard by an Employment Tribunal sitting at Leeds, under the chairmanship of Mr E H J Record, over 7 days. By a reserved decision with extended reasons, running to 13 closely typed pages, the Tribunal dismissed all his claims. Against that decision he has appealed.[4]The core of the appeal is a challenge to the Tribunal's finding that the Appellant volunteered for redundancy on 24 April 1998. As to that, there was a conflict of evidence. Mr Graves, the Product Manager, said this, according to the Chairman's Note of Evidence:
"On 24 April H [the Applicant] came into my office. Seemed a bit more incisive than before. He asked if he could be made redundant. I asked him to sit down and went to see V [Mr Vjestica the Managing Director] to ask him if I could accept the offer. He said I could if it was what he truly wanted. I returned to my office and tried to discuss what he was saying and what would happen. He said he wanted to go. He was not happy because he felt he was not looked after as well as he had been. He mentioned that also as comment from his mother. I asked him to write out his redundancy. I had to take a phone call. I came back. He had made progress. I wrote out [document R69 in the bundle] R69, I read it to him. Asked if he understood. He said he did. He did not sign in my presence. I had to go. I found it when I came back. It was signed 2 days later."
[5]The Appellant said in evidence that he did not tell anyone that he wanted to be made redundant. There was a mystery over the signature which later appeared on the document (R69). Expert handwriting evidence was called before the Tribunal. The experts agreed that it was probably not that of the Appellant.[6]Faced with this evidential conflict, summarised at paragraph 30 of their reasons, the Tribunal made a clear finding of fact, at paragraph 33 as follows:
"On the balance of probability, we reach the view that the applicant did indeed ask to be made redundant and that the respondent acted upon this accordingly."
[7]On 24 April, the Appellant was given notice of dismissal by reason of redundancy to take effect on 10 July 1998. He then obtained another job to start at the beginning of May 1998. He was paid his wages up to 2 May, received pay in lieu of notice to 10 July and a statutory redundancy payment.[8]The appeal is put in three ways:(1) Misdirection It is said that the Tribunal inferred that the Appellant had volunteered for redundancy principally from the fact that neither he nor his mother, who took a keen interest in his welfare, objected to the notice of dismissal. That submission, in our judgment, is wholly misconceived. The Tribunal's finding was not based on inference, but on accepting Mr Graves' evidence as to what he was told by the Appellant on 24 April 1998 and rejecting the Appellant's denial of that conversation.(2) Inadequate Reasons We need not rehearse the learning on this topic in the Court of Appeal. Mr Neaman in his written submission has referred to the usual cases, including Meek v Birmingham District Council [1987] IRLR 250 . Put shortly, the Appellant lost on the question as to whether or not he volunteered for redundancy because his evidence on the point was rejected and Mr Graves accepted. The duty of an Employment Tribunal is to make all necessary findings of fact. They made the relevant finding in this case.(3) Perversity The additional point here made is that the Tribunal failed to consider whether, even if the Appellant did in fact volunteer for redundancy, as the Tribunal eventually found, bearing in mind his disability the Tribunal ought to have gone on to consider whether a reasonable employer ought to take further steps to satisfy himself that this particular employee took a conscious decision to volunteer for redundancy. An analogy is sought to be drawn with the resignation case of Barclay v City Glasgow District Council [1983] IRLR 313, a case which was cited to the Tribunal below by Ms Campbell, who then appeared on the Appellant's behalf. There are two difficulties with that submission. First, the question of whether or not an employee has resigned is not quite the same as the question raised here under Section 98(4) of the Employment Rights Act 1996. However, more substantively, we see significant distinctions between Barclay and the present case on their facts. In Barclay the employee, who was mentally disabled, uttered unambiguous words of resignation, but then subsequently reported for work. He was asked to sign a blank piece of paper later to be filled in by the employer to show that he had resigned, and his sister who acted as his carer, was not consulted in the matter. Here, the Tribunal found as a fact, rejecting the Appellant's account, that he used unambiguous words to indicate that he volunteered for redundancy. Subsequently, after he had been given notice of dismissal, his mother, who looked after his interests, attended the Respondent's premises on 28 April 1998, told Mr Graves that the Appellant had been offered a new job starting immediately and asked if he could leave early with pay in lieu of notice. The Tribunal, permissibly, we think, took into account the lack of challenge to the notice of dismissal by either the Appellant or his mother, as acquiescence on their part. The Tribunal found it hardly credible that they would have acted as they did if they had been dissatisfied with the fact of dismissal.[9]In these circumstances we are unable to conclude that the Tribunal's finding that the Respondent acted reasonably in dismissing the Appellant, as a genuine volunteer for redundancy, on grounds of redundancy was perverse, in the legal sense.[10]It follows in our judgment that there are no grounds in law for interfering with the Tribunal's decision. Accordingly the appeal must be dismissed.