MRS B NECKLES v NATIONAL WESTMINSTER BANK [2003] UKEAT 1358_01_1202

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 1358_01_1202

Case No Appeal No. EAT/1358/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS B NECKLESAPPELLANT

NATIONAL WESTMINSTER BANKRESPONDENT

Before

Mr Justice Burton

Date 12 February 2003

[1]APPEARANCES For the Appellant MR D IBEKWE (Representative) For the Respondent MR T J ARCHER (Solicitor) Instructed By: Messrs Richards Butler Solicitors Beaufort House 15 St Botolph Street London EC3A 7EE MR JUSTICE BURTON (PRESIDENT) This is an appeal and a cross-appeal against the conclusions of a Chairman, Mr Sneath, sitting alone, at the Employment Tribunal held at Leeds on 1 October 2001. The decision that the Chairman made was to strike out two of the three claims that Mrs Neckles (whom we shall call "the Applicant") was then making against her employers, the National Westminster Bank ("the Respondent"), and to allow a third to go forward to a hearing before a full Tribunal on a date to be fixed.

[2]The circumstances in which that occurred were that, by a Notice dated 30 July 2001, the parties were notified that the Regional Chairman had directed that a pre-hearing review be held; alternatively, that at such hearing the Tribunal would consider striking out the Originating Application on the ground that it had no reasonable prospect of success. Subsequently, the date was fixed for what was then going to be 13 September; and a formal notice of pre-hearing review/strike-out hearing was given to the parties, and that was responded to by a further letter dated 28 September 2001 when Mr Neckles, the Applicant's representative and husband, said:

"Further to the ET notice of Pre-hearing Review/Strike Out Hearing of 23 August 2001, please take note of the following. I am unable to attend pre-hearing review on 10 September 2001, due to an ongoing illness."

In the event it was fixed for a subsequent date of 1 October, at which it was anticipated that Mr Neckles, at any rate, if not the Applicant, would attend.

[3]Together with the Notices of hearing there were supplied copies of the relevant Rules, and there is no doubt that the parties were put on clear notice as to what might happen at the hearing, because both of them put in written submissions seeking, on the one side, from the Applicant's point of view, to dissuade, and, on the other side from the Respondent's point of view, to persuade, the Chairman to make a strike-out Order.

[4]An appeal by the Applicant against the order that the Chairman made striking out the redundancy claim by the Applicant came before a preliminary hearing of the Employment Appeal Tribunal, and such appeal was dismissed, so that claim remains dismissed. The appeal continues in respect of the strike-out by the Chairman of the racial discrimination claim, and there is, as we have indicated, a cross-appeal by the Respondent, in respect of the fact that the Chairman did not strike-out the breach of contract claim. The relevant order was made by reference to Rule 15 in the Employment Tribunals Constitution and Rules of Procedure Regulations 2001 , Schedule 1. By Rule 15(2):- "15(2) A tribunal may (a) ... (b)... (c) subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, misconceived or vexatious." Sub-rule 15(3) requires the Tribunal ordinarily to send notice to the party against whom it is proposed that such an order should be made, and, of course, in this case such a notice was indeed despatched. By Rule 15(8) it is provided as follows:

"15(8) Any act required or authorised by these rules to be done by a tribunal may be done by a chairman except - (a) the hearing of an originating application under rule 10; (b) an act required or authorised to be so done by rule 11 or 12 which the rule implies is to be done by the tribunal which is hearing or heard the originating application; (c) the review of a decision under rule 13(1), and the confirmation, variation or revocation of a decision, and ordering of a re-hearing, under rule 13(7)."

[5]By way of a preliminary point on this appeal, as part of his submissions, Mr Ibekwe, who has appeared on behalf of Mrs Neckles, has contended that the Chairman did not have jurisdiction, sitting alone, to make an Order such as he did under Rule 15(2)(c). He has submitted that Rule 15(8) excepts from the powers of a Chairman, sitting alone, by sub-paragraph 8(a) "the hearing of an originating application under rule 10", and he refers to the definition of the word "hearing" in Regulation 2 of the Regulations themselves as follows:

"2(1) 'hearing' means a sitting of a tribunal duly constituted for the purpose of receiving evidence, hearing addresses and witnesses or doing anything lawfully requisite to enable the tribunal to reach a decision on any question."

[6]He submits that this was a hearing described, as we have indicated, in the Notices, as a pre-hearing review/strike-out hearing, which was a hearing, and thus a hearing of an Originating Application, and thus one which, by virtue of 15(8)(a), could not be dealt with, except by a Chairman sitting with other members. Of course, it is the case that, up and down the country, pre-trial reviews and interlocutory applications of all kinds, including strike-out applications, either at the instance of a party, or at the initiative of the Tribunal, are being dealt with by Chairmen alone, every day of the week; and so this, if right, is a significant submission showing that the practice of the Employment Tribunals is erroneous; and that the purpose of the Rules, which has been rightly thought to be the freeing up of the use of lay members to bring their experience as an industrial jury to bear upon substantive cases rather than procedural matters, would not have been achieved.

[7]We have no doubt whatever that this submission by Mr Ibekwe is wholly wrong. The hearing of an Originating Application under Rule 10, which is specified in Rule 15(8)(a), expressly refers to what it describes, namely, a Rule 10 hearing. "Any hearing of an Originating Application", says that Rule, "shall be heard by a Tribunal composed in accordance with Section 4(1) and 4(2) of the 1996 Act". It does not apply to any hearing connected with, or preparatory for, the hearing of an Originating Application. That is made utterly clear by the very wording of Rule 7 (Pre-Hearing review), which provides, at Rule 7(1), as follows:

"7(1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of - (a) the contents of the originating application and notice of appearance."

[8]It thus makes it utterly clear that a pre-hearing review at which this kind of application to strike-out can, and often will, be considered, is not a hearing within Rule 10, and is thus not the one with which a Chairman, sitting alone, is precluded from dealing. Quite the contrary, it is one which is ordinarily and properly conducted by such a Chairman. The preliminary contention must accordingly fail.

[9]We turn then to the substantive point. There was no attendance by Mrs Neckles or Mr Neckles or any other representative on her behalf at the hearing; but the Chairman proceeded properly on 1 October to consider the matter as a matter of substance, having taken account, of course, not only of all the pleadings and other papers before him, but of the written representations put in on her behalf, as well as the written representations put in on behalf of the Respondent, and the oral representations and informal evidence given by the Respondent in the person of Mr Archer, the Solicitor, who has also appeared before us today, and a lady representative of the Respondent who assisted him.

[10]The Chairman struck out the redundancy claim (and as we have indicated, that striking out has been upheld on appeal) in the early part of his decision. His conclusion in relation to race discrimination reads as follows, in paragraph 10:

"10 Turning to her claim of race discrimination, the applicant has to show that she was treated less favourably than the respondent either treated or would treat other persons. A comparison of the case of a person of a particular racial group with that of a person not of that group must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

[11]He then turned to consider the precise facts of the race discrimination case, which we will now summarise briefly, before returning to the decision by the Chairman. The context of the facts can be shortly summarised. The Respondent was closing its, or the relevant part of its, Leeds Branch where the Applicant was employed, towards the end of 2000. They sought to see which of their employees would be willing to take voluntary redundancy, and the Applicant, like many others in her Branch, signed a document which was called "A formal request for voluntary departure". She signed it on 22 November 2000. It reads as follows:

"In relation to our recent discussion regarding voluntary departure from the service of the Bank, I have considered fully my position and request that the Bank release me on a date to be mutually agreed. The precise date of departure will be discussed and confirmed by 31 December 2000 with the last possible day of working being 31 March 2001. I understand that the terms offered to me, which I accept, represent a full and final settlement by the Bank in respect of my departure."

[12]There was, it seems, no response to that document immediately or for some time by the Respondent, but in tranches the members of the Applicant's Branch began to be moved out, and she, it seems, was in the last tranche of the Branch to keep working, and she was still working in February. In the meanwhile, she heard that there was the opportunity of a position in another branch of the Respondent, namely at Bradford. She applied to be and was interviewed, as was a number of other people, including those from outside, and she was successful in obtaining that position, and after a week's paid leave, which was treated as holiday, she recommenced employment. She ceased her position in Leeds at the end of February and, pursuant to a letter dated 21 February 2001, she agreed to transfer to Bradford with effect from 5 March 2001; and when she received her contract of employment in respect of that position, her employment with the Nat West Group was expressed to be continuous employment, commencing on 4 March 1991.

[13]The position in Bradford carried certain emoluments which were less, although the detail of it is not clear on the evidence, than they had been in her position at Leeds. Nevertheless, she continued in the new job, and still holds it now, as we understand it, and, consequently, did not take advantage of what could have been a three-month probationary period for her. In those circumstances she was plainly not entitled to a redundancy payment, as the Employment Appeal Tribunal found, when upholding the decision of the Chairman because, by virtue of the provisions of Section 138 of the 1996 Act, among others, because of her transfer within the relevant period to alternative employment with the same employer, she was deemed not to have been made redundant within the Act.

[14]However, her case in essence is that she is entitled, and should have been regarded as entitled, notwithstanding remaining employed by the Respondent, to her voluntary departure sum, as we shall call it for the purpose of neutrality, pursuant to the document from which we have earlier quoted. She went through a grievance procedure with the Respondent, at which she was represented by Mr Neckles, and one of her complaints at that grievance procedure was as follows:

"6 [That the Bank had] failed to notify Mrs Neckles of the outcome of her application for formal voluntary redundancy for several months (November 2000 – February 2001)."

[15]The Respondent's position was that, as she had not departed from the service of the Respondent, but remained employed by them, she was not entitled to any payment in respect of the voluntary departure sum, because she had remained in employment.

[16]Her application to the Employment Tribunal, her IT1, brought all three claims. We shall say no more about the redundancy claim, but it included the breach of contract claim, the straightforward claim that she had not been paid the voluntary departure sum, to which the Respondent responded that she was not entitled to it on the grounds that we have indicated, and it included a claim that had not been previously adumbrated at all in the grievance procedure or otherwise, namely that there had been racial discrimination against her, and that was articulated in this way:

"I further consider that I have been victimised / discriminated against by the respondent, by them refusing to pay me my redundancy money whilst making payment to my white colleagues."

[17]The material response by the Respondent in its IT3 was as follows, in paragraph 12:

"12 It is denied that the Applicant has been discriminated against by reason of her race as alleged or at all. Redundancy payments have been paid to members of Staff at Leeds Card Centre who decided to leave the Respondent's employment regardless of their race. Had the Applicant decided not to accept the position at Bradford CTC, or chosen to leave the position within the first three months, she would have been provided with a redundancy package."

[18]In the written submissions, to which we have referred, which were presented for the purposes of the strike-out/pre-hearing review, the Applicant, no doubt through her husband Mr Neckles, made considerable written submissions to support her claim, both for redundancy and breach of contract. She said nothing at all to support what one might almost call the incidental addition to the IT1 in respect of race discrimination. The written submissions put in on behalf of the Respondent, however, were very full, and dealt, not only with the redundancy and breach of contract claim, but also with that race discrimination case, and they said as follows:

"7.3 The Applicant has alleged that she has been victimised/discriminated against by the Bank by it refusing to pay her redundancy money whilst making payment to her white colleagues. The Bank will submit that the Applicant has not been treated less favourably than others who were employed at the Bank's Leeds Card Centre because of her race and that payments have not been made to any of the Applicant's white colleagues who are currently employed by the Bank. 7.4 The Applicant did not raise this allegation of race discrimination/victimisation at her grievance hearing on 22 May 2001. The Bank will submit that the only colleagues of the Applicant who have received a voluntary redundancy package are those whose contracts of employment have been terminated with the Bank."

And they expand further on that case.

[19]When it came therefore to the hearing before the Chairman, he was faced with one sentence, in which it was alleged by the Applicant that payment had been made to white colleagues, while the Respondent had refused to pay her redundancy money, as well as keeping her on in employment and, on the other hand, from the Respondent, the very clear and full answering response, together with further particularisation which we have not read. The Applicant did not attend, as we have indicated, at the hearing, and thus leaving the matter to be decided on her written submissions, while the Respondent did; and the lady representative of the Respondent, Ms Hurst, was asked briefly to confirm the contents of the written submission, although not on oath. She indicated, apparently, that she was willing to go on oath, but the Chairman said that it was not necessary. Returning then to his conclusion, after referring, as we have already quoted, in paragraph 10 of his Decision, to the need for identification of comparators who must be the same, or not materially different, the Chairman continued as follows:

"11 The Applicant asserted in her originating application that she had been discriminated against by the Respondent ' by them refusing to pay me my redundancy money whilst making payment to my white colleagues '. She does not identify those colleagues and Mr Archer indicated that the evidence will be that the respondent did not make a redundancy payment to any employee who transferred to alternative employment and who did not, during the trial period terminate that contract. It would be surprising if the respondent had committed such an overt act of racial discrimination. Whist I have chosen not to hear the evidence of Miss Hirst, I have decided that I am entitled, in this situation, to say that such evidence is inherently likely to be believed. Further, I observe that there is no positive case in the applicant's written representations against what is said by the respondent." 12 Mr Archer is concerned about the conduct of the applicant, who has not attended today's hearing. Instead, she has submitted written representations. Whilst I doubt whether cross-examination of the applicant would have yielded a different result, I have decided that the question of costs of today's hearing should be reserved to the tribunal which ultimately hears this case on its merits, in case it is persuaded that the entire proceedings should form the subject of an order."

[20]What therefore the Chairman was, in our judgment, clearly saying was that there was no evidence whatever to support an assertion that the Respondent had unfairly discriminated against the Applicant, whether on grounds of race or otherwise, by making payment to other colleagues, who had remained in employment in different positions, while not doing so in respect of this Applicant. The allegation was racial discrimination. Such a course, had it occurred, could well be described, even if it did not involve race, as unsatisfactory commercial practice, to put it at its highest, and, what is more, practice which was bound to be found out and be the subject of comment, if it had taken place, not least because it would involve differential payments to those who were remaining, on any analysis, in the employment of the same employer.

[21]When, therefore, the Chairman said, in paragraph 11, "It would be surprising if the Respondent had committed such an overt act of racial discrimination", he was saying, in our judgment, no more than, "It would be surprising if the Respondent had committed such an act", namely that which is alleged to be racial discrimination, at all. It would be, as was put in argument, just the same as if, for example, in a case of unfair dismissal, which was being said to be misconceived, hopeless or unarguable, the Applicant did not attend, and the Respondent produced evidence that the man who was supposed to have dismissed the employee on the particular day, proved by evidence including his own passport that he was out of the country at the time, and a Chairman, in saying that there was no evidence adduced on the one side, then said, "It would be surprising if the Respondent had been prepared to go to the lengths of forging a passport". But, in any event, there was no case put before the Chairman to support what appears to us to have been the plain import of the Originating Application, subordinate as it was to the main case that was being made.

[22]As will appear in a moment today, Mr Ibekwe, who has appeared on behalf of the Applicant, and argued the matter fully and ably, has himself accepted that there is no such case and, indeed, has told us that no such case is being put forward or, as he submits, was intended to be put forward. We shall explain in a moment what case it is that the Applicant has wished to say amounted to race discrimination.

[23]In those circumstances, the allegation that has been made that this statement is evidence of bias on the part of the Chairman appears to us to be totally unsupportable. It was certainly a firm view that he had taken; one that he would necessarily have to form, if he was going to strike-out a claim of racial discrimination, as hopeless or misconceived under Rule 15(2)(c), and he was, in our judgment, entitled to do so, the more entitled when it now becomes clear that he was, in fact, right to do so, because no such case was even going to be supported before us; and we are satisfied, in any event, that there are no grounds whatever for any suggestion of bias on the Chairman's part. It is only by reference to that passage in paragraph 11 that it is sought to be relied upon and we conclude that the case as to which the Chairman was making the trenchant remark he did is wholly unsustainable.

[24]But the case that is now sought to be put forward and, which is said always to have formed the basis for the case which we have quoted from the IT1 is as follows. I quote from a handwritten document which Mr Ibekwe has put forward, on the express basis that this is not, on his case, an amendment but a fleshing-out of what he says was always pleaded; but that if it is an amendment, he would seek permission to make it in order to save from strike-out the race discrimination claim. The document reads as follows:

"The Appellant was offered and accepted voluntary redundancy on the terms of page 74, [which we have recited] together with many of her white colleagues who had qualifying rights. Having accepted the terms, the Respondent proceeded to pay the Appellant's white colleagues off on those terms up to January 2001. The Appellant's leaving date having been given in January to be 26 February 2001, come 26 February 2001, the Respondent failed to pay the Appellant. The Appellant claimed that it amounted to unfavourable treatment when her white colleagues were paid what was agreed and she was not. The Respondent's defence is that the reason for any such treatment is that the Appellant was transferred. The Appellant's complaint has been that the Respondent refused to pay her redundancy pay whilst making payment to her white colleagues. The Appellant's comparators are all those colleagues who signed the voluntary redundancy agreement, not those who transferred."

[25]If that case now renders the race discrimination case arguable, that is, not misconceived or hopeless, then the result would be that, whereas the Chairman was right to strike-out, at least insofar as it appears to us clear that he was entitled to view the case as he set it out on the basis of the papers before him, then, nevertheless, the case should now be permitted to go forward on that basis to a full hearing.

[26]Mr Archer has dedicated his submissions, in response, to seeking to persuade us that, even as now amended or clarified, whichever it be, the case is as misconceived as it was before the Chairman. He has not sought to persuade us that, if this document does salvage the position, then we should not permit the case to go forward because it is an amendment for which leave should be refused.

[27]It is plain that, as we have earlier indicated, this is not the way in which anyone understood the case being made, and, notwithstanding, that the opportunity was given for written representations, it was not put before the Chairman on this basis; but it is now here before us.

[28]Paragraph 10 of the Chairman's Decision remains as valid now, as it did then, in which he pointed out that a comparison, in the case of a particular racial group, with that of a person not of that group, must be such that the relevant circumstances in the one case are the same, or not materially different in the other. What the case now put forward consists of is a case that the Applicant, who did not leave the Respondent, but carried on in another job with continuous employment rights, was not paid, while other colleagues of the Respondent in her Branch, who happened to have been white, were paid. But the difference is that those who were paid left the Respondent and, as we have indicated, there is no case put forward that anyone who stayed was paid. Had there been such a case, then that would have been the beginnings of a discrimination claim, but there is no such case, and was none before the Chairman when he struck-out the claim.

[29]It is quite apparent to us that the case, even as now put, is wholly unarguable. There is no evidence of an arguable comparator and no evidence of, in those circumstances, any relevant discriminatory treatment, whether on grounds of race or otherwise. It appears to us plain that this is a case, even as now sought to be salvaged at the twenty-third hour, which is correctly characterised as hopeless, and the Chairman was entirely within his discretion to strike it out.

[30]So far as the cross-appeal is concerned, Mr Archer submits that, whereas the Chairman rightly struck-out the race discrimination case, he should have gone on to strike-out the breach of contract case. He puts his case very succinctly:(1) The document, which we have read, was headed up "Formal request for voluntary departure". It amounted therefore to what it says, namely a request by an employee, who, knowing that there was the availability of voluntary redundancy to be considered, signed the document which indicated that he/she wished to be considered for such redundancy. That formal request was never responded to, never accepted; and, indeed, that is the ground of complaint which Mr Neckles put forward at the grievance hearing the following May, which we, again, have quoted.

(2) If, contrary to his submission, that nevertheless amounted to a constituted contract on the basis, for example, that it was, although described as "a formal request for voluntary departure", in fact an acceptance by the employee of terms for voluntary departure, in this case the Applicant did not depart from the service of the Respondent, but stayed with the Respondent and, consequently, did not become entitled to the payment.

(3) He puts forward further a matter that was not before the Chairman, but arose as a result of a point that was taken by the diligence of Mr Ibekwe in his Skeleton Argument, namely a reference to the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 , which he, Mr Archer, has now considered, and which he concludes would not, in any event, permit such a claim for breach of contract to be tried by an Employment Tribunal, in any event. He points to the terms of Regulation 3 of the Order which read as follows:

"3 Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if – (a) ... (b) ... (c) the claim arises or is outstanding on the termination of the employee's employment."

He submits that the claim here, for breach of contract, even on the case put forward by the Applicant, put at its highest, is not a claim which arises on the termination of the employee of his employment, and is not a claim which is outstanding on the termination of the employee's employment, because the Applicant's employment never came to an end, never terminated. Her employment was continuous; she transferred. If she has a claim for breach of contract it is, on her case, that she should have been entitled to be paid this sum, whether or not she left the services of the Respondent. Thus it is not a claim which falls within the Order, and, if it does not fall within the Order, then it does not matter that it might otherwise come within the wider words of Section 3 of the Employment Tribunal's Act 1996 , referred to by Kirkwood J in Rock-it Cargo v Green

[1997] IRLR 581

, which is a case where the issue was whether a claim fell within the terms of Section 3(2), namely the issue whether the contract in question was "connected with employment" when, in fact, on the facts of that case it was common ground that the contract did fall within paragraph 3 of the 1994 Order; and the issue was therefore rather different. It does not matter therefore, says Mr Archer, whether the claim is a contract connected with employment, if it does not arise on, or remain outstanding at, the termination of the employee's employment, which this claim did not. If he is right, of course, then, if there is an outstanding claim by the Applicant, it should be tried in the County Court and not in the Employment Tribunal.

[31]Leaving aside the issue of jurisdiction, the significant question, of course, is as to whether the Chairman was entitled to refuse to strike-out the claim on the basis that it was misconceived, and that matter is what he dealt with, in declining to strike-out, in the following paragraphs of his Decision. Having referred to the formal request for voluntary departure document, he went on as follows:

"5 That document is expressed in terms of offer, acceptance and consideration. Whilst there may be an argument about certainty in the light of what subsequently happened, I do not feel able today to say with confidence that that argument will prevail. 6 Further, Mr Archer has argued that the meaning of the expression " voluntary departure " is clearly explained by the addition of the words " from the services of the bank "

. In the event, the applicant applied for alternative employment in Bradford. She was interviewed for the post. It was offered to her by letter dated 21 February 2001. The Leeds Card Centre closed on or about 26 February. The applicant took a week's leave between finishing work there and beginning work at the Bradford Customer Telephone Centre. 7 The letter of appointment to the latter job indicated that the applicant's full-time equivalent salary would be decreased to £6.05 per hour. [I am not told today from what hourly rate it was decreased]. Additionally, the applicant was to lose a non-pensionable allowance of £3,080 per annum. Thus, it appears at this stage of the proceedings that, by transferring from Leeds to Bradford, the applicant was losing some of the contractual benefits which she had enjoyed theretofore."

[32]Interposing, Mr Archer points out that the fact that the terms of continued employment at Bradford may have been less favourable than those at Leeds is, in his submission, not material to the issue as to whether there is, or is not, a binding contract in relation to the voluntary departure document. If, for example, the issue was simply whether an employee had accepted, or refused, suitable alternative employment with the same employer, such as to disentitle him/her from a redundancy payment, if those alternative terms are less favourable and therefore not suitable, he is justified, or may be justified, in refusing them, and thus can still claim a redundancy payment. On the other hand, if accepted, then they would, as in this case, disqualify him or her from a redundancy payment, and it is very often the case, submits Mr Archer, that the result of redundancy is that people end up, either with their old employers or with new, with less good terms. But, he submits, that is not relevant to the precise circumstances and the issues to be decided here.

[33]The Chairman continues:

"8 Returning to Mr Archer's argument, whilst I accept that it has substantial force, again I do not feel sufficiently confident to say that it renders the applicant's case alleging breach of contract as having no reasonable prospect of success. She might argue that, on a legal analysis of the facts, there was a termination of her contract of employment followed by her re-engagement so that there was, albeit for a moment, a voluntary departure from the services of the Bank."

[34]Mr Ibekwe submits that we should not disturb the conclusion of the Chairman, and should not dismiss this claim. He makes the following points:(1) Although the document is described at the top as a "Formal Request For Voluntary Departure", which on its face looks like an offer by the employee, the body of the letter refers to terms offered to the employee by the employer and, consequently, there is, as Mr Ibekwe submits, at least an argument that this is the acceptance of an offer by the employee, and not a request to an employer to accept the employee's offer, formulated on the basis of known terms being offered generally to all employees by the employer, as Mr Archer would submit. He does not specifically adopt the suggestion that was thrown out by the Chairman that he can answer the question of certainty, but he would no doubt assert that, albeit there might be some question about lack of certainty, the inclusion in the document of the last possible day of working being 31 March 2001, would entitle him to argue that all the terms, including a last date for operation, were included in the document.

(2) Consequent upon his case, therefore, that that amounted to a concluded agreement, he makes submissions that the statements at the grievance hearing, which we have quoted, should be disregarded as an inaccurate explanation of what had happened, put forward by Mr Neckles, who is not a lawyer.

(3) He submits that, on the basis, therefore, that there is a contract, it must be construed, and he submits that there was here, or can be said to have been, a voluntary departure from the service of the Respondent, and here he would, no doubt, accept the suggestion made by the Chairman, at least a momentary one, notwithstanding the fact that, the employer regarded the service as continuous, and notwithstanding the fact that, for the purposes of a redundancy payment, it was to be treated as if there had not been a determination; because he points out to us the case of Jones v Governing Body of Burdett Coutts School

[1997] ICR 390

in which it is made clear that, just because there is no dismissal or termination for redundancy purposes, it does not mean that, for other purposes, whether unfair dismissal or, he would submit, breach of contract purposes, there has not been a termination or dismissal. On that basis, if there was a contract, then he would submit that there may have been at least a departure within the terms of that qualifying letter between 26 February and 5 March.

[35]Those are the rival submissions. Plainly, there is a very strong case indeed for the Respondent in this situation. The heading of the letter; the response at the grievance procedure and the terms of the letter itself, coupled with what Mr Archer would submit to be the common sense of the matter, namely that it would be an unusual situation that someone could have "both their cake and eat it", namely a redundancy payment and a fresh job from the same employer with continuity of employment. Mr Ibekwe's implicit suggestion is that there may be something to be explored, which might in the end persuade a Tribunal to reach a different conclusion from the obvious one, which we have referred to.

[36]We are not here faced with reaching a decision ourselves, either on appeal, or certainly at first instance. We are dealing with an appeal from a situation in which the Chairman of his own motion, not at the instance of the Respondent, initiated a strike-out hearing and then, having considered the matter, even without oral submissions, such as we have had from Mr Ibekwe, declined to strike-out, whilst striking out other claims.

[37]We, having considered the matter carefully, are not prepared to interfere with what, at the end of the day is, in our judgment, a discretion by a Chairman taking a view as to the case before him, as to whether it is misconceived, and consequently, after considerable thought, and with some misgiving, we have concluded that we should not allow the cross-appeal, albeit we would respectfully suggest that careful thought be given by the Applicant as to whether she wishes to pursue this matter to a hearing. On that basis the appeal and the cross-appeal are both dismissed.