Appeal No. EAT/0023/02/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 November 2002

Before
THE HONOURABLE MR JUSTICE ELIAS
LORD DAVIES OF COITY CBE
MR T HAYWOOD

MR D W HANCOCK	APPELLANT

DONCASTER METROPOLITAN BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised (13 February 2003)

	APPEARANCES

For the Appellant	THE APPELLANT 
In Person	
For the Respondent	MR ASHLEY UNDERWOOD QC
(One of Her Majesty’s Counsel)	

MR JUSTICE ELIAS

1.	This is an appeal in which the Appellant challenged the decision of the Industrial Tribunal at Leeds, which held that he was not able to pursue claims for unfair dismissal and redundancy.  The Appellant, Mr Hancock commenced employment with Doncaster Metropolitan Borough Council on 1 September 1984.  In 1995 while on sick leave he was given notice of dismissal by reason of redundancy.  That notice stated that the dismissal would be effective as from 15 December 1995.

2.	Late in the afternoon of 15 December 1995 Mr Hancock delivered to the Respondent a letter in which he wrote this:

“Application for ill-health retirement.

I enclose a sickness certificate from my doctor dated …  I have been reluctant to accept his advice and had hoped that I could somehow struggle on.  I had thought that my family’s best interests would be best served if I could have continued my employment.  However, following my latest consultation with my psychiatrist, I now realise this is not possible.  I would therefore be grateful if you could arrange for this application for my ill-health retirement, could be considered as quickly as possible.”

3.	On 21 December 1995 Doncaster replied to the effect that it was considering the application which in fact it subsequently approved.  Mr Hancock then received a lump sum and a pension to which he would not apparently have been entitled if he had been made redundant.  In fact however, the payment of the redundancy compensation had already been set in motion and the redundancy money was paid to Mr Hancock.

4.	On 13 March 1996 Mr Hancock initiated proceedings in the Industrial Tribunal in which he made a whole series of claims relating to alleged breaches of contract, redundancy payments and unfair dismissal.  He also made a claim for unlawful deduction of wages under the Wages Act.  The Respondent was seeking to have the redundancy monies paid back to them by Mr Hancock.  They contended that he was not entitled to receive both the monies that had been awarded by reason of his termination on grounds of sickness and the redundancy payment.  He had been unwilling to pay this back so they took proceedings for recovery of that payment.  They issued these High Court proceedings on 21 March 1996.  On 16 May 1996 the Leeds Industrial Tribunal directed that the Wages Act claim could be heard but adjourned all other claims pending the outcome of the High Court litigation.  The Wages Act claim was determined against Mr Hancock by the Leeds Industrial Tribunal on 26 July 1996 and an appeal to this Tribunal failed on 21 May 1998.  

5.	Meanwhile on 25 July 1996 Doncaster had obtained summary judgment in the High Court proceedings.  Mr Hancock appealed that determination to a High Court judge, Ian Kennedy J who dismissed his appeal on 19 June 1997.  It is relevant to quote just a small part of his decision where he set out succinctly the contending arguments in relation to that particular dispute.  He said this:

“The case for the Council is that they have accepted his request to retire on the ground of ill-health in substitution of his termination for redundancy, and treated him as retired because they supposed that would be to his benefit.  He would get a slightly more generous lump sum and, what was perhaps much more important, an immediate annual payment of pension as opposed to the time when he would have been entitled to claim his pension without there being a resignation on the grounds of ill-health.

That really gives one the heart of the dispute.  Mr Hancock says the two matters are entirely separate.  “I was made redundant and that entitled me to the £24,000 and, quite separately, I resigned on the grounds of ill-health as I was entitled to do and would have been entitled to do at any time thereafter, whether I was still employed or not”.

In my judgment, the analysis on the part of the Council is the correct one.  This was, in the event, not a redundancy.  It was, albeit at the last moment, a resignation on the grounds of ill-health.”

6.	Following that decision the remainder of the Tribunal claim was ordered to be listed on 28 May 1999 for argument to be addressed as to the effect of the decision of Ian Kennedy J on the outstanding claims.  The Counsel at that hearing was contending that the effect of the decision of Kennedy J is that he had ruled in the High Court litigation that Mr Hancock had resigned and accordingly he had not in law been dismissed.  Therefore, they submitted, he could not take a claim for either unfair dismissal or redundancy because the dismissal was a condition precedent to make any such claim.  There was an “issue estoppel”.

7.	The argument on behalf of Mr Hancock was, putting it very broadly, that there was no such issue estoppel in this case and that the determination by Kennedy J did not focus upon the question of resignation or dismissal and in any event his judgment on this point was somewhat ambiguous.  The Industrial Tribunal found in favour of Mr Hancock and it held that he was not estopped from pursuing either his unfair dismissal or redundancy claims.  It is perhaps simply pertinent to note that they treated both claims together and recognised that the argument in relation to one ran equally in relation to the other.

8.	That decision of the Industrial Tribunal was then the subject of an appeal by the Council to the Employment Appeal Tribunal.  There was also a cross appeal from Mr Hancock but that was dismissed and I need to say no more about it.  As far as the appeal was concerned, that was successful.  After a detailed recitation and analysis of the relevant arguments this Tribunal, His Honour Judge J Hicks QC giving the judgment for the Tribunal, concluded that Mr Hancock was estopped from pursuing a redundancy payment claim. 

9.	Having referred to the passage in the decision of Kennedy J to which I have made reference they concluded:

“When, therefore, the judge proceeds in the terms quoted in paragraph 15 of the tribunal’s Reasons, the first sentence is in our view to be understood as expressing his choice in principle between Mr Hancock’s case that his employment could end both by dismissal for redundancy and concurrently or subsequently also by resignation for ill-health and that he could retain the fruits of both methods of termination, and Doncaster’s that the two methods of termination were incompatible and that the parties had by agreement chosen between them and put that agreement into effect.  The second sentence is the finding which both gives effect to and provides the factual basis for that choice.  It is true that other findings of fact could have been made which would have led to the same result by a different route and been nearer to the way in which Doncaster’s case was pleaded, but the finding which was made is in our view clear and unambiguous, was within the judge’s jurisdiction and has not been appealed.  We do not therefore consider that the tribunal was justified in law in rejecting the estoppel defence on that ground.”

10.	There is, however, a curiosity about the decision before the Employment Appeal Tribunal.  As we have indicated, it is plain that before the Industrial Tribunal the argument of estoppel was directed both to the unfair dismissal and redundancy claims.  We have not seen the Notice of Appeal to the Employment Appeal Tribunal but it is inconceivable that it would not have covered both claims in precisely the same way.  However, the way in which the issue was characterised by this Tribunal was to describe it as the redundancy payments claim and the conclusion of the Tribunal was that:

“The complaint of failure to pay redundancy payments is therefore dismissed.”

11.	We suspect that in practice the parties saw the redundancy issue as being the principal one and all perhaps realised in the hearing before the Employment Appeal Tribunal that the unfair dismissal application would simply be disposed off inevitably in the same way as the redundancy application.  But it is right to say that the order of the Employment Appeal Tribunal did not deal in terms with the outstanding unfair dismissal claim.

12.	So, the matter was then taken back to the Leeds Industrial Tribunal by Mr Hancock.  That Tribunal plainly understood that it had to determine not only whether or not an unfair dismissal claim could be made but also whether any redundancy claim could be made.  Mr Hancock has however indicated to us that he was not seeking to pursue any redundancy claim before the Tribunal because he recognised that the decision of the Employment Appeal Tribunal, to which we have just made reference barred that.  He did not appeal that decision and he accepted that he was bound by the outcome.  What he says, however, is that the decision had no effect on his right to claim for unfair dismissal.
 
13.	The Respondent, before the Leeds Tribunal in relation to the matter which is now appealed to us submitted that the decision of this Tribunal did indeed bind the Leeds Tribunal and that Mr Hancock was estopped in the light of the decision of this Tribunal from continuing to pursue his unfair dismissal claim.  The Industrial Tribunal considered this matter over a period of five days in August 2001.  They concluded that the issue had been decided by the Employment Appeal Tribunal and that accordingly it was not possible for the Applicant to bring a claim for unfair dismissal since that issue had already been determined.  

14.	They went on to say, however, in paragraph 7 of their decision that having analysed the facts, they found that the evidence was exactly as stated by His Honour Judge Hicks in the Employment Appeal Tribunal and they reached the same conclusion as he did, although they were considering the matter quite independently.

15.	Mr Hancock now appeals to this Tribunal and submits that the Tribunal was wrong to find that he was estopped.  We have a Notice of Appeal that was prepared upon his behalf and sets out a number of grounds in which it is alleged that the Employment Tribunal erred in law.  Some of the grounds are directed to the question as to whether or not the Tribunal was justified in concluding that there was a resignation and not a dismissal.  However, those grounds would only be material in relation to the alternative way in which the Industrial Tribunal puts its decision.  They are not material to the primary way in which it reached its conclusion, namely that the matter had already been determined by the Employment Appeal Tribunal in the earlier hearing.  In relation to that aspect of the case, it is contended by Mr Hancock, which reflects the grounds of appeal, that all that the Employment Appeal Tribunal did in the earlier hearing was to exclude his right to make a redundancy claim and not to exclude his right to make a claim for unfair dismissal.

16.	We reject this analysis.  It is plain that what the EAT did in the earlier hearing was to find that Mr Hancock was estopped from taking his claim because it had been determined that he had resigned and not been dismissed.  That was not appealed.  It is true that the Employment Appeal Tribunal expressed its decision purely in respect of the redundancy action, but nobody suggests that there is, in relation to this case at least, any material difference in the definition of dismissal as it relates to redundancy and unfair dismissal claims.  It inevitably follows, therefore, in our view that the decision of the Employment Appeal Tribunal in the earlier hearing does estop Mr Hancock from taking this matter any further, as the Employment Tribunal has concluded.  

17.	Inevitably both the unfair dismissal and redundancy actions would stand or fall together.  We have no doubt that the Employment Appeal Tribunal would have been fully aware of that in the last hearing and that if somebody had said to them “Does this ruling cover unfair dismissal as well”, we have no doubt whatsoever that they would have said ‘but of course it does’.  As we have said, the issues of unfair dismissal and redundancy were considered together in the Industrial Tribunal and in our view it must have been plain to everyone that they were both in truth being considered before the Employment Appeal Tribunal.

18.	Had they both been considered in terms then it seems to us that would have created a cause of action estoppel.  It is perhaps a nice point whether given that the unfair dismissal complaint was not specifically referred to, whether it should properly be described in this case as an issue of estoppel rather than a cause of action estoppel.  But it is a nice point on which we think it is unnecessary to spend any intellectual effort.  We are wholly satisfied but either way this was a determination which meant that it was impossible for Mr Hancock to pursue his claims any further and the Employment Tribunal in this case was right to reach that conclusion.

19.	Without needing to go into the history of the matter it is clear that all other outstanding issues between Mr Hancock and Doncaster have been resolved and he confirmed before us categorically that the only outstanding issue was this possibility that he might seek a claim for unfair dismissal.

20.	We should perhaps add this.  As we have said the Leeds Industrial Tribunal in this case heard evidence for some days in this matter.  In our view they were wrong to do so.  It is perfectly true that the Appellate Courts have on a number of occasions indicated that Employment Tribunals should not readily hear preliminary issues without first finding all the relevant facts.  They should not, in other words, make a determination on assumed facts.  But here the Respondent’s estoppel argument was essentially that whatever the facts, his case had already been determined.  

21.	In those circumstances, if that argument is right, as the Industrial Tribunal ultimately held it to be, then of course there is no purpose in looking at the facts at all.  Indeed, it could create some embarrassment if the Tribunal were to reach findings of fact which were at odds with the finding in the earlier decision by which they were in any event bound.  It could create a significant sense of injustice to somebody to be told that his action failed because it had already been effectively determined against him and at the same time to make findings which were inconsistent with that earlier decision.  That did not occur in this case because happily the findings were consistent.  But although we understand why the Tribunal went down this road, and no doubt it was a belt and braces decision on their part, we consider that they were wrong in this case to have heard evidence on this matter.  

22.	For all these reasons this appeal fails.  We should add that the dispute between these parties has, as is already clear generated already a mound of litigation.  We have not referred to all the various actions, I think, in our judgement.  We are also bound to say that it is the very clear preliminary view of all of us on this Tribunal that even had Mr Hancock been entitled to take his claims for unfair dismissal it had precious little chance of success.  

23.	Be that as it may, we now hope that the litigation between these parties has come to a final end and that there would be no more time and money spent on further actions.