Appeal No. EAT/694/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 28 February 1995

	Before

	THE HONOURABLE MR JUSTICE BUCKLEY

	MRS M E SUNDERLAND JP

	MRS T MARSLAND

MR M JONES	APPELLANT

HM CUSTOMS & EXCISE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON

For the Respondents	LORD PHILLIMORE
(OF COUNSEL)
The Solicitor
HM Customs & Excise
New Kings Beam House
22 Upper Ground
London SE1 9JP

	MR JUSTICE BUCKLEY:  This is an appeal from the decision of the Industrial Tribunal at Exeter in July 1994.  By that decision the Tribunal dismissed Mr Jones' claim for unfair dismissal.  The substance of his claim was that he had been constructively dismissed and he relied upon the conduct of the Respondents in support of that claim.

	As the Tribunal noted in paragraph 6 of their decision - Section 55(2) of the Employment Protection (Consolidation) Act  sets out that an employee is treated as having been dismissed by his employer, if, but only if:

		"(c) the employee terminates that contract (ie the contract under which he is employed by the employer), with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct."

That was really what was in issue before the Tribunal.

	This was a case in which Mr Jones applied to the Respondents for early retirement on medical grounds.  That was indeed something which his contract of employment provided for, was something which required of course the underlying medical condition and consent by the Respondents.  That happened in 1992.  It is quite clear that the background to that was a very unhappy situation which had developed between the Respondents' management and Mr Jones.  Mr Jones undoubtedly felt very strongly that he had been badly treated and had not received the support which he was entitled to in dealing with the difficult situation which he had been specifically sent to deal with.

	In 1992 the culmination of this was that he did apply for early retirement.  The matter went on over a period of months in 1992.  We have a bundle of correspondence which the Tribunal had which evidences the to-ing and fro-ing in that respect and the upshot was that he was given early retirement and to that extent he was operating the terms of the contract and suitable and necessary arrangements were made.

	Having heard Mr Jones' evidence, and he was cross-examined on behalf of the Respondents, there was then a submission by Respondents' Counsel, Lord Phillimore, who has appeared before us as well, to the effect that there was no case to answer.  The reason was not based so much on the merits, although I am sure no concessions were made on that; it was directed to one point only, namely that on his own evidence and on the documents before the Tribunal, Mr Jones had not terminated the contract; he had not resigned in circumstances that set up a claim for constructive dismissal but had deliberately chosen to operate the contract and opt for early retirement.

	By a majority the Tribunal accepted that submission and as a matter of law it is a necessary ingredient in constructive dismissal, that the employee has resigned and terminated the contract in circumstances that he was entitled to do so by reason of the Respondents' conduct.  So that is what led the Tribunal to their decision.

	As is well known it is not a re-hearing before this Tribunal.  The right of appeal is only on a point of law and two matters perhaps arise - first of all did the Tribunal approach the submission that was made to them of no case on the correct basis in point of law?  Secondly, if they did, could it be said that their decision on the facts was so wrong as to cause this Tribunal to interfere?  In other words it would have to be a decision on fact that no reasonable Tribunal properly directing itself in law could have arrived at.

	On the first question - Did the Tribunal adopt the right approach in law? - we have already mentioned that in paragraph 6 they reminded themselves of section 55(2).  They went on with a reference to Western Excavation (ECC) Limited v Sharp [1978] IRLR 27 a well-known judgment of Lord Denning in the Court of Appeal setting out the four ingredients of constructive dismissal and we note that it is the third one that is in issue in this case.

	At paragraph 11, having set out the facts and the evidence they had heard, and we note making prima facie findings on conduct in favour of the Applicant, they came then to the third element.  At paragraph 12 the reasons state as follows:

		"At that point [early 1992] in the view of the majority, the Applicant then had 3 options, viz to remain on sick leave and pursue his complaints further on his return to work; to submit his resignation and pursue his complaint of constructive dismissal; and to apply for early retirement on ill health grounds."

It seems to us that is a correct analysis of the situation; the Applicant, as is apparent from that, having gone on sick leave the Tribunal decided that it was the last option that he chose - that was not to resign and pursue constructive dismissal but to apply for early retirement.

	In view of the correspondence which shows what happened between the parties there can be little argument that that is in fact what he did and the Tribunal refer to certain snippets from the correspondence in support of that.  They say this at paragraph 13:

		"In the majority view by exercising that option and submitting his application in those terms the Applicant affirmed his Contract of Employment and invoked the contractual procedures available for early retirement on ill health grounds... There was accordingly no resignation on the part of the Applicant and he has therefore failed to satisfy the essential element of resignation in order to found his complaint of constructive dismissal."

	It seems to us that the correct legal approach is manifest in the Tribunal's decision so the only question that remains is whether, as a matter of fact, the Tribunal were right in their clear assertions that it was the last option that Mr Jones chose, that is not to resign and pursue constructive dismissal but to go for early retirement.  On the face of it, as we have already said, there is absolutely no question that is what he did.  The correspondence is clear.  What we pressed Mr Jones to explain to us was why the Tribunal were wrong to take matters, if you like, at face value.  Mr Jones submitted to us, as we understand he did to the Tribunal and indeed there is support for this in the correspondence, that he felt pressurised into the course he took.  His wife was in the late stages of pregnancy.  His health was cracking.  He had not been getting the support he thought he was entitled to and doubtless was entitled to and he felt everything coming in on him in his own words.  In hindsight he may or may not have gone down the same path but he felt pressurised and perhaps, as he said, it was not the best decision he has ever made, or the most reasoned.  In other words he is seeking to say, perhaps in more legal language, that the Respondents' conduct forced him into the decision he took and that he should not be held to that decision or how it appears on the face of it and that the reality, the substance of the position, is that he was resigning and he made it perfectly plain that he had had enough and was not going back in any event.

	That is a perfectly respectable argument albeit a difficult one to establish as a matter of fact but it is an argument that was open to him and it is one that he put to the Tribunal.  Unhappily for Mr Jones the Tribunal did not accept it as we have indicated.  The short and only remaining point for this Tribunal is whether we can say that they were so wrong in that as to have gone wrong in law as we have already described.  We regret to say, from Mr Jones' point of view, that we find it quite impossible to say that.

	If this had been the sort of decision that an individual has to make on the spur of the moment or once and for all very quickly and under great pressure it might have been a very much stronger argument but as the correspondence shows this was a decision which was taken and persisted in over a period of months and it required both sides co-operation on the medical side and medical certificates and so forth and also, although we pay no heed at all to the advice that Mr Jones may have been given, the fact that he sought legal advice and received it during this period is another factor which really makes it very difficult to go behind what he was clearly doing and the decision that he clearly made so as to go behind it to such an extent as to absolve him from the consequences of it on the basis of pressure or confusion or anything else.  

	We have heard both parties, and we are grateful for their assistance.  We are clearly of the view that the decision of the Tribunal is not one that we should upset.  This appeal must be dismissed.