MR D L BEEVOR v HUMBERSIDE FIRE BRIGADE [2003] UKEAT 0630_03_1911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0630_03_1911Case No Appeal No. UKEAT/0630/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D L BEEVORAPPELLANTHUMBERSIDE FIRE BRIGADERESPONDENT
Before
His Honour Judge Richardson Mr D Chadwick Mr B R GibbsDate 19 November 2003
[1]APPEARANCES For the Appellant MR EDWARD LEGARD (of Counsel) Instructed by: Messrs Thompsons Solicitors Arundel House 1 Furnival Square Sheffield S1 4QL For the Respondent MR PAUL MORRIS (of Counsel) Instructed by: Legal Services Department Legal & Democratic Services East Riding of Yorkshire Council County Hall Beverley HU17 7BA HIS HONOUR JUDGE RICHARDSON This is an appeal against the decision of the Employment Tribunal sitting at Sheffield, for which Extended Reasons were entered in the register on 18 June 2003. Mr Darren Beevor had made a complaint of unfair dismissal against his former employers the Humberside Fire Brigade. The Employment Tribunal held, by a majority, that he had not been dismissed. His complaint of unfair dismissal was therefore rejected. Against that decision he appeals. The Background Facts[2]Mr Beevor was employed by the brigade with effect from 5 September 1994 as a retained fire fighter stationed at Epworth Fire Station. A retained fire fighter does not work at his station all the time. It is not at all unusual for a retained fire fighter to have another job. But he undertakes certain minimum obligations. In Mr Beevor's case he undertook to respond to a minimum of 50% of calls over his period of cover which was 18 hours, but not including Monday to Friday 9.00am to 5.00pm. So he was free to work and did work for another employer during the day.[3]When retained fire firemen were recruited it was a "must" that they should live within 5 minutes of the fire station. In 1994 Mr Beevor did live close by. But there was no term of Mr Beevor's contract requiring him to live in any particular area and it was not uncommon for retained fire fighters to move further away. Mr Beevor moved to another village in 1998. This might make it more difficult for such a person to arrive promptly for a call but ultimately it was attendance at call outs which mattered to the brigade.[4]The brigade had cause to speak to Mr Beevor about his attendance on call out. There was a substantial history. The Employment Tribunal set it out in detail. He was spoken to in August 1996 and then with increasing frequency from December 1999 onwards. The Employment Tribunal found in particular that after May 2000 there was concern about the level of Mr Beevor's attendance over a sustained period.[5]In June 2001 Mr Beevor was given three months leave of absence because he was travelling in connection with his full time employment. He promised that after his leave of absence he would completely fulfil the conditions of his employment. The brigade had to contact him to arrange his return after this period finished. His station commander, Mr Wilson, spoke to him. The concern about his attendance continued. The Employment Tribunal found that Mr Beevor told Mr Wilson that he intended to resign, but asked Mr Wilson to defer the matter until the end of April due to his application for a mortgage.[6]There was an issue as to whether Mr Beevor's attendances had always been correctly recorded by the brigade. The Employment Tribunal considered the evidence about attendance at some length and concluded that his attendance was well down in comparison not only with his contractual commitment but also with others at the Epworth fire station.[7]The crucial evening in this case is 25 April 2002, a Thursday. By this time Mr Wilson had moved on as Station Commander. He had briefed Divisional Officer Rowbotham about the matter. On 25 April Mr Rowbotham attended the fire station with a view to seeing Mr Beevor. Mr Rowbotham had said to a fire brigade trade union official not long before that he was going to Epworth fire station "to get rid of one of your lads". Mr Rowbotham went to the Epworth fire station that night with the intention of bringing matters to a head and with a view to Mr Beevor's employment ending by resignation.[8]Mr Rowbotham did not give Mr Beevor any advance warning that he intended to see him; still less the subject matter of the conversation. As it happened, Mr Beevor was unable to attend the drill night and informed the fire station accordingly; so sub-officer Stevens at the fire station asked him to come in specially to sign some paper work. That was to ensure that Mr Beevor met Mr Rowbotham.[9]These facts were all found unanimously by the Tribunal. The Tribunal do not expressly say whether Mr Stevens lied to Mr Beevor to secure his attendance or whether Mr Rowbotham knew of that. But what is inescapable is that a pretext was used to secure his attendance. No-one said to Mr Beevor that Mr Rowbotham wished to see him or told him of the subject matter of the meeting. Mr Beevor would no doubt have been expecting some follow up to his conversation with Mr Wilson about resignation, but he did not know it was coming that evening.[10]Before we pass on to what occurred at the fire station that evening, we wish to say in emphatic terms that the procedure which Mr Rowbotham adopted on 25 April was unacceptable. To have arranged an interview with Mr Beevor on such an important matter without any advance warning is inexcusable. Formality in dealing with an issue of this kind is always desirable so that an employee may go to a meeting knowing where he stands. It is also in the interests of the employer that formality should be observed in this way. The Meeting at the Fire Station[11]As to what occurred at the fire station, there was a sharp divergence of evidence between Mr Rowbotham and Mr Beevor and a sharp divergence of finding between the majority of the Employment Tribunal and the member in the minority. Some things are, however, clear. The meeting was short. By the end of the meeting Mr Beevor had signed a statement of resignation which had been written out for him by Mr Rowbotham. These matters are recorded by the Tribunal and were effectively common ground.[12]Beyond that there was a wide divergence. Mr Beevor's evidence, accepted by the minority member, was that the resignation had already been written out before the meeting began. Mr Beevor did not recall being asked if he wanted a union representative present. He said he explained to Mr Rowbotham that he was tired. He said Mr Rowbotham said they were not leaving the room until there was a suitable outcome. He said he told Mr Rowbotham that he wanted to think about what he had said and Mr Rowbotham got up in a threatening manner.[13]That, in essence, summarised from his witness statement, was Mr Beevor's evidence. It is clear that the minority member of the Employment Tribunal accepted his evidence. There was, as we have said, a stark conflict between his evidence and that of Mr Rowbotham.[14]Mr Rowbotham had said that Mr Beevor agreed to stay. He had asked Mr Beevor if he wanted a union representative. Mr Beevor said he did not. Mr Rowbotham said the resignation letter was written out by him at Mr Beevor's request during the meeting, after he had gone out to find the right headed paper. He said the meeting was amicable and they parted on good terms.[15]The majority of the Employment Tribunal found as follows: 35 "…the majority of the tribunal find that Mr Rowbotham did not write out a letter of resignation for Mr Beevor prior to meeting him. We believe that Mr Beevor asked Mr Rowbotham to write the document out… 36 The majority find that Mr Beevor was given the option to resign as an alternative to going through the disciplinary process. We note Mr Beevor's comments in evidence "basically if I didn't resign he'd try to sack me or let me go." 37 We believe this reflects the situation. Mr Beevor had been faced with this option before. On that occasion he had indicated he would resign after a period to allow his mortgage application to be processed. Mr Beevor knew he could opt for the disciplinary process in which he could have the assistance of his trade union. He also knew on our finding that Mr Rowbotham could not dismiss him that night. Mr Rowbotham said in evidence that Mr Beevor could resign or "I could take steps to end his employment"."[16]The Employment Tribunal unanimously found that Mr Beevor was a strong-minded individual who was able to make a free choice to avoid disciplinary action by resignation. The advantage, potentially, the Tribunal thought, was that he would then be able to apply for further duties within the fire service at a later date.[17]In paragraph 40 of the decision the majority said: 40 "The majority view is that Mr Rowbotham did not bully Mr Beevor into doing this but that Mr Beevor made a free choice to resign as the best option for himself in all the circumstances. The majority do not believe that at the time of the meeting (about 8.30pm), the applicant's tiredness nor his not having had an evening meal prevented a voluntary response from Mr Beevor. Mr Rowbotham offered an alternative to disciplinary action which Mr Beevor found acceptable. We do not believe that Mr Rowbotham insisted on Mr Beevor resigning before he was allowed to leave the station. The majority consider that the respondent was willing to go through a disciplinary process with Mr Beevor."[18]Finally, the following conclusion was reached by the majority: 43 "The majority find that there was no pressure put upon Mr Beevor, that the memorandum paper was found during the meeting, the resignation was composed by Mr Rowbotham with the full consent of Mr Beevor and that it was a voluntary resignation. The applicant accepted that he had not been able to do what was expected of him by the brigade over a lengthy period of time. The options were to resign or go through a disciplinary process and as the applicant realised that he could not sustain his employment this was a true resignation and not a dismissal."[19]The story may be completed as follows. The meeting having taken place on 25 April Mr Beevor said some days later that he wished to withdraw his resignation. He wrote a memorandum dated 30 April, date-stamped 7 May, as received by the fire brigade. The Law[20]By section 95 (1) of the Employment Rights Act 1996 : 95 (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, only if) – (a) the contract under which he is employed is terminated by the employer (whether with or without notice)."[21]Where an employee uses clear words of resignation it will generally be found that he, not the employer, has terminated the contract of employment. Where an employee uses such words the employer can generally accept the resignation and act accordingly. But this is not an invariable rule. If, for example, an employee's resignation is what is sometimes termed a "forced resignation", the employer will still be held to have terminated the contract.[22]In Jones v Mid-Glamorgan County Council [1997] IRLR 685 Waite LJ at paragraph 6 observed as follows: 6 "Courts and tribunals have been willing, from the earliest days of the unfair dismissal jurisdiction, to look, when presented with an apparent resignation, at the substance of the termination for the purpose of inquiring whether the degree of pressure placed on the employee by the employer to retire amounted in reality to a dismissal…the principle itself (whatever its origins) is well settled. It is a principle of the utmost flexibility which is willing in all instances of apparent voluntary retirement to recognise a dismissal when it sees it, but is by no means prepared to assume that every resignation influenced by pressure or inducement on the part of the employer falls to be so treated. At one end of the scale is the blatant instance of a resignation preceded by the employer's ultimatum:
"retire on my terms or be fired" – where it would not be surprising to find the industrial tribunal drawing the inference that what had occurred was a dismissal. At the other extreme is the instance of the long-serving employee who is attracted to early retirement by benevolent terms of severance offered by grateful employers as a reward for loyalty – where one would expect the industrial tribunal to draw the contrary inference of termination by mutual agreement. Between these two extremes there are bound to lie much more debateable cases to which, according to their particular circumstances, the industrial tribunals are required to apply their expertise in determining whether the borderline has been crossed between a resignation that is truly voluntary and a retirement unwillingly made in response to a threat. I doubt myself whether, given the infinite variety of circumstance, there can be much scope for assistance from authority in discharging that task: indeed, attempts to draw analogies from other cases may provide more confusion than guidance. In cases where precedent is nevertheless thought to be of value, the authority that will no doubt continue to be cited is Sheffield v Oxford Controls Co Ltd [1979] IRLR 133."
[23]In Jones v Mid-Glamorgan County Council it was submitted that it was essential if the employer were to be held to have terminated the contract that there should have been a threat of immediate dismissal. That submission was rejected. Waite LJ said, at paragraph 28: 28 "The concept of dismissal by enforced resignation is too valuable and too flexible to be constrained by such preconditions as a requirement that the threat of dismissal must be the sole factor inducing the resignation."[24]This appeal, as we shall see, is based firmly on a submission that the majority decision was perverse. Where such a submission is made the burden on the Appellant is a heavy one. A decision is not perverse merely because the Appeal Tribunal would have reached a different conclusion on the evidence, or thinks that another Employment Tribunal might have done so. It should not be allowed merely because the Appeal Tribunal disagrees with the Employment Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts.[25]In Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440 at paragraph 33 Mummery LJ said, of the Employment Appeal Tribunal, that it should: 33 "…only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is 'irrational', 'offends reason', 'is certainly wrong' or 'is very clearly wrong' or 'must be wrong' or 'is plainly wrong' or 'is not a permissible option' or 'is fundamentally wrong' or 'is outrageous' or 'makes absolutely no sense' or 'flies in this face of properly informed logic'." He observed that that variety of phraseology was taken from a number of well-known cases indicative of the heavy burden to discharge in a case where perversity is alleged. He observed that it was not:
"…appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to 'meticulous criticism' or 'detailed analysis' or to trawl through it with a 'fine-tooth comb'."
Submissions[26]In his submissions on behalf of Mr Beevor Counsel for the Appellant in the first place accepted that he could not disturb primary findings of fact made by the majority of the Employment Tribunal. He submitted, however, that even given its primary findings of fact it was impermissible for the Employment Tribunal to conclude that there was no pressure on Mr Beevor. Far from it, he submitted that in reality Mr Beevor was presented with the alternatives or resigning immediately or being dismissed. He referred to notes of Mr Rowbotham's evidence which had been agreed between the parties. He said in those notes Mr Rowbotham is demonstrated to have given evidence to the Employment Tribunal that as far as he was concerned Mr Beevor's employment was at an end. He said he was sure about terminating Mr Beevor's employment because of his failure to comply with his obligations.[27]But it is fair to say that both Mr Rowbotham's statement and his evidence assert that Mr Beevor had the opportunity throughout to say he wanted to leave the meeting and to pursue the matter through another route; that is to say, by waiting until it was dealt with formally through personnel. Mr Rowbotham did make it clear that he had no authority to terminate Mr Beevor's employment.[28]It was submitted on behalf of Mr Beevor that there was really no difference between saying on the one hand "you will be dismissed" and on the other hand "you will undergo proceedings for capability which will lead to dismissal". In essence it was said an ultimatum was given which left no real choice for Mr Beevor. He submitted that the Employment Tribunal had found that Mr Beevor was tired and awaiting his meal. It should have brought those matters into account when it reached its decision.[29]He pointed out that when Mr Rowbotham gave evidence his reason for not telling the employee in advance that a meeting was going to be held on this question was that the employee would feel "vulnerable and intimated". That being so, how much more would he feel vulnerable and intimidated when he came to a meeting with no notice. He submitted that the only reasonable conclusion was that the dismissal that evening was forced, that he resigned in response to a threat with no particular terms being agreed.[30]He also submitted that in a case of this kind an Employment Tribunal should look for clear and unequivocal circumstances demonstrating a voluntary resignation. He submitted that any doubt should be resolved in favour of the employee. He also submitted that there was inadequate reference to cases on the subject in the Employment Tribunal's decision.[31]On behalf of the employer, it was submitted that the Employment Tribunal's decision had to be read against the full background of fact which the Employment Tribunal had found. In particular, there had been a significant history of addressing the question of attendance with Mr Beevor. Most particularly, Mr Beevor had said himself not long before that he intended to resign at the end of the month.[32]Read against that background, it was submitted, it was impossible to say that the decision of the majority was wrong or perverse. There had been an acute conflict of evidence at the hearing. The Employment Tribunal had resolved it by a majority, substantially if not entirely in favour of Mr Rowbotham. There was nothing perverse about its decision. Our Conclusions[33]It is clear that the majority of the Employment Tribunal rejected the account given by Mr Beevor as to what happened at the meeting on 25 April. It was, as we have said, not submitted on Mr Beevor's behalf that the findings of the majority as to primary fact could be set aside. That concession was correctly made. It was the Employment Tribunal that saw and heard the witnesses. They clearly rejected the evidence of Mr Beevor as to what occurred. They substantially accepted Mr Rowbotham's evidence. It is not absolutely plain from the decision that they did so on every point, but it is clear that they accepted in substance what he said. It is for the Employment Tribunal to reach these findings. That they did so by a majority is neither here nor there. The majority findings of fact on primary matters are, in our judgment, unimpeachable.[34]We deal immediately with two submissions that were made on behalf of Mr Beevor. We do not accept that the Employment Tribunal erred in any way by failing to set out more of the case law. The Employment Tribunal had pithily set out the matter which they had to determine. We are told that the case law was extensively dealt with in Skeleton Arguments. No Employment Tribunal is under a duty to set out the law at length, nor is any error to be inferred because the Employment Tribunal does not do so.[35]We also reject the submission that an Employment Tribunal is under a duty to look for clear and unequivocal evidence of a voluntary resignation. No such burden of proof lies on an employer in this case. It is, insofar as the burden of proof matters at all in a case of this kind, for the employee to establish that he was dismissed. In practice, once an Employment Tribunal has heard the evidence it is for the Employment Tribunal to decide what evidence it accepts and what evidence it rejects.[36]We turn then to the primary submission which is that the Employment Tribunal's decision was perverse. Two features of this case gave us concern as we reached our conclusions.[37]First, there is very little recognition in the decision of the Employment Tribunal of the potential impact on Mr Beevor of attending the meeting without prior notice. It might be a very substantial advantage to an employer that the employer knew nothing in advance of a meeting. It might make it all the more difficult for an employee to resist a suggestion that he should resign rather than go through a disciplinary hearing. Surprise of this nature might be just as effective as direct pressure.[38]We have roundly criticised this feature of Mr Rowbotham's handling of the case. But, having said this, we recognise that the Employment Tribunal expressly stated that Mr Beevor had no advance notice of the meeting. The Employment Tribunal had this matter well in mind. We recognise that on the findings of the Employment Tribunal, which on this point were unanimous, though not, we are told, accepted by Mr Beevor, Mr Beevor had already said that he would resign at the end of April of the beginning of May and therefore must have expected his employer to follow this up. Moreover, the Employment Tribunal unanimously found that Mr Beevor was of a robust personality; they say a strong-minded individual who was able to make a free choice to avoid disciplinary action by resignation.[39]The Employment Tribunal had the advantage of seeing and hearing the witnesses. In the end, therefore, critical though we are of the procedure followed by the brigade, we do not think that there is anything in the decision which leads us to suppose that the Employment Tribunal left this out of account or did not have it in mind.[40]Secondly, we were concerned by the sentence at the beginning of paragraph 43, where the Employment Tribunal majority say they find there was no pressure put upon Mr Beevor. On the Employment Tribunal's own findings there was pressure on him. It was the pressure to resign straight away or go through a formal procedure which would be likely to lead to dismissal.[41]The majority was, however, very well aware of this, as its own findings at paragraphs 36 to 39 make clear. We therefore think that the sentence at the beginning of paragraph 43 needs to be read in the light of the factual dispute between the parties. On Mr Beevor's account there was direct pressure on him to stay until the issue was resolved. His resignation had already been written out for him and Mr Rowbotham was not willing for him to leave until it had been signed.[42]We think, particularly in the context of the whole sentence at the beginning of paragraph 43, where the Employment Tribunal say that there was no pressure on Mr Beevor, that they were referring to their acceptance of Mr Rowbotham's evidence rather than Mr Beevor's. They were not saying there was no pressure on Mr Beevor at all; plainly, from paragraphs 36 to 39 of the decision there was some pressure on him to resign. They were rather saying that in spite of the pressure it was a voluntary resignation made by a man who had already said he would resign and done with his full consent.[43]We do not think the law is that wherever there is a threat of disciplinary proceedings a resignation in consequence will always and inevitably be a forced resignation, such that the employer is held to have terminated the employment. Rather, as Waite LJ said in Jones v Mid-Glamorgan County Council , it is for the Tribunal to look at the substance of the termination for the purpose of inquiring whether the degree of pressure placed on the employee by the employer to retire amounted in reality to a dismissal.[44]Having regard to the Employment Tribunal's decision, taken as a whole, and in particular having regard to its rejection of Mr Beevor's evidence by a majority, and to the unanimous finding that Mr Beevor had said that he would resign at the end of the month, we do not think we can say that the majority decision in this case was perverse. The majority's decision was open to them, as a matter of law, and this appeal must be dismissed.