Appeal No. EAT/0126/03/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 2003

Before
HIS HONOUR JUDGE BIRTLES 
MR I EZEKIEL
MS B SWITZER

DR A B MITCHELL	APPELLANT

NORTH MIDDLESEX HOSPITAL TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	DR PETER MARKS
REPRESENTATIVE	

JUDGE BIRTLES

1.	This is the Preliminary Hearing of an appeal from the decision of an Employment Tribunal sitting at London Central on 8 and 9 May 2002.  The Chairman was Mr D A Pearl.  The decision of the Tribunal was that it had no jurisdiction to entertain the claim for unfair dismissal because the Applicant Dr Mitchell was not dismissed.  The decision was entered in the Register and sent to the parties on 16 September 2002.  From that decision Dr Mitchell has appealed and he is being represented here today by a friend Dr Marks.

2.	The material facts are set out in the decision of the Employment Tribunal.  We do not need to repeat them in detail here.  Suffice it to say that Dr Mitchell was employed as a Consultant Physician by the North Middlesex Hospital Trust.  Sadly, on 9 July 1997 he was suspended from duties pending a full medical assessment into his state of health.  On 5 May 1998 the General Medical Council informed the Respondent that Dr Mitchell had provided voluntary undertakings to refrain from practising pending further investigation into his health.  Early retirement was discussed between the parties in 1998.

3.	After three years of suspension and preclusion from carrying out medical practice the Respondent initiated the procedure to bring matters to a conclusion.  Hearings took place and the Respondent gave Dr Mitchell three months notice of termination of employment to end on 11 August 2001.  There was an appeal against that decision which was dismissed.  We are not concerned with that appeal process today.

4.	There was an exchange of correspondence and Dr Mitchell took early retirement effective from 11 August 2001.  Before the Employment Tribunal Ms Gibb, the chief executive of the Respondent trust and the Applicant gave evidence.  That evidence is summarised in the Employment Tribunal’s decision where they go through the chronology of events in some considerable detail.  It is sufficient for us to refer to paragraph 10 of the decision where the Employment Tribunal set out part of a letter from the Respondent notifying Dr Mitchell of the decision of the panel that he should be given notice of termination of his contract of employment to expire on 11 August 2001.  In that letter the panel strongly urged Dr Mitchell to consider the option of early retirement and to consider meeting Ms Gibb the chief executive to discuss that issue.  On 23 May Ms Gibb wrote to Dr Mitchell saying that she would like to meet with him and his representative to discuss early retirement and she confirmed:

“That such a meeting will not prejudice any after [sic] action you wish to pursue.”

See paragraph 11 of the Employment Tribunal decision.

5.	A meeting did take place on 14 June 2001 and the question of early retirement was discussed.  According to the Tribunal’s findings of fact the Applicant, Dr Mitchell asked questions about retirement benefits and he said he was prepared to consider early retirement subject to receiving answers to his queries.  See paragraph 12 of the Employment Tribunal decision.

6.	On 20 June Ms Gibb wrote to Dr Mitchell and she confirmed the details that she had supplied at the meeting and in particular the fact that if Dr Mitchell took early retirement the Trust would support him, that he would receive a lump sum and an enhanced pension.  He would also be able to access the pension on early retirement.  She said it was her understanding these options were not available on termination.  She then said:

“That  “in order to enable you to make a decision” she had asked the pensions officer to obtain a forecast under both options.  She also said that these discussions and arrangements were without prejudice to anything that Dr Mitchell chose to do “and no way pre-empts the decision of the forthcoming appeal panel hearing on 6 July.””

See paragraph 13 of the Employment Tribunal decision.

7.	As we have indicated the Appeal Tribunal dismissed Dr Mitchell’s appeal and in the letter of dismissing the appeal sent to Dr Mitchell it concluded with the hope that:

“you will be able to reach a swift, satisfactory resolution in conversation with Rose Gibb about possible retirement options.””

See paragraph 14 of the Employment Tribunal decision.

8.	There was subsequent conversation between Ms Gibb and Mr Wishart who was representing Dr Mitchell and Mr Wishart specifically asked for an enhancement of the lump sum in the pension for £5,040.00.  That request was agreed to.  See paragraph 15 of the Employment Tribunal decision.  On 7 August Mr Wishart wrote to Ms Gibb saying that he had had the opportunity of speaking to Dr Mitchell and that he is now willing to accept the application for early retirement from 11 August 2001 and the additional lump sum of £5,040.00.  “I would be grateful if you can organise the pension arrangements as quickly as possible as Dr Mitchell has considerable financial constraints…”  Those arrangements were then followed up and the resignation took effect from 11 August 2001 and Dr Mitchell signed a declaration that he was retiring from the National Health Service employment on 10 August.  See paragraphs 16 and 7 of the Employment Tribunal decision.
 
9.	Those are the material facts.  At the Employment Tribunal hearing as we have said both Ms Gibb and Dr Mitchell gave evidence.  Dr Mitchell’s evidence is contained at paragraph 18 of the Employment Tribunal decision.  It is not necessary to set that out here but he told the Tribunal that in effect he did not know that he would have been able to have access to his pension if he had been dismissed and not voluntarily retired.  He said that in effect he had been coerced into retiring because he had been led to believe by Ms Gibb that only if he retired would he have access to his pension immediately and not have to wait until he was sixty five years of age.  The submissions as noted by the Employment Tribunal make it clear that the basis of Dr Mitchell’s case before it was that there had been duress or coercion in law in his signing the relevant documents leading up to his retirement and in particular that it was the remarks by Ms Gibb that he would not be able to access his pension scheme until he was sixty five if he was dismissed which led him to resign and that in effect the resignation was a constructive dismissal. 

10.	The Tribunal rejected this submission and its conclusion as set out in paragraph 23 of its decision.  It begins by reciting the sole issue before it to decide is whether or not there had been a dismissal.  Of course if there had not been a dismissal then the question of unfair dismissal does not arise.  The Tribunal recorded its conclusion that the contract had in fact terminated by mutual agreement because although Dr Mitchell was under notice of termination of employment on 11 August 2001 the parties had come to an agreement whereby he would take early retirement from that date and therefore there had been a discharge of the contract of employment by mutual consent which intervened and superseded the notice of termination given by the Respondent.

11.	It is from that decision today that Dr Mitchell appeals.  We have been greatly helped by the Notice of Appeal as well as the skeleton argument produced by Dr Mitchell and also by the oral argument that Dr Marks has presented on his behalf today.  Dr Marks has very cogently said everything that could possibly be said for Dr Mitchell’s appeal.  It will be helpful I think if we deal with the grounds of appeal in turn.  They are found starting at page 63 of the bundle.  The first ground of appeal is that the Tribunal erred in law in fact in holding that Dr Mitchell would be unable to access the pension scheme until aged 65 should he be dismissed.  The evidence before the Tribunal conflicted.  Ms Gibbs gave evidence to the Tribunal that she understood the position to be that if Dr Mitchell retired before the age of 65 he would have access to the pension scheme where as if he was dismissed by the trust he would not have immediate access to it.  

12.	Against that it does not appear that any direct evidence was put before the Tribunal during the 2-day hearing but in his closing written submissions which were sent in after the close of evidence Dr Mitchell included a letter dated 17 May 2002 from a Lynn Johnson who was pay roll and pensions manager and that said this:

“Retirement within the NHS can take place from age 60 without loss of benefits.  The decision to retire between the ages of 60 and 65 can be taken by the individual and does not require the support of the employing organisation.  Retirement under these circumstances would be classified as age retirement and would be based on actual qualifying service with no enhancement.”

13.	That on the face of it would appear to support what Ms Gibb had told the Employment Tribunal.  Subsequent to the Employment Tribunal’s decision Dr Mitchell obtained a letter from the British Medical Association Scottish Office.  That is at page 55 of the bundle.  It is dated 25 September 2002.  The material part says this:

“As requested I am writing to confirm that the normal retirement age of NHS Pension Scheme members is age 60.  Although it is possible for scheme members to accrue service after that time, age 60 is nevertheless, the scheme’s normal retirement age.  Our understanding is that you were dismissed from your NHS employment and were aged 60 or over, you would have been able to claim the accrued value of your pension entitlements at that time.  Payment of the pension entitlements would not need to be deferred until the contractual retirement age of 65.  Dismissal from your NHS appointment would not have jeopardised your entitlement to claim your pensions benefits at any time from age 60.”

That of course is an expression of the writer’s understanding of the scheme is not itself conclusive evidence of what the scheme provided but for the purposes of today we will accept that that is the truth of the matter.  That was put before Mr Pearl the Chairman of the Employment Tribunal on an application for a review and in a decision dated 23 December 2002 Mr Pearl refused a review.  There is no appeal from that decision.  Today Dr Marks has argued that in effect there was a mistake in law, by Ms Gibb in the alternative that there was a misrepresentation by Ms Gibb to the Tribunal which has the effect of unravelling the agreement that Dr Mitchell came to retire on 11 August 2001.

14.	In our view there is no arguable ground of law here.  Only fraud can unravel an agreement and no issue of fraud or indeed as far as we can see misrepresentation either innocent or negligent was put before the Employment Tribunal.  The argument before the Employment Tribunal was put solely on the basis of duress or coercion.  We have carefully reread the skeleton arguments put before the Employment Tribunal by Dr Mitchell and by the solicitors for the Respondent and as we say the Tribunal were quite right to address the issue of coercion and coercion only in its reasoning.

15.	The second ground of appeal is that the Tribunal erred in law and in fact in holding the contract was terminated by mutual agreement.  That is really to repeat the first argument.  The Tribunal found that the contract was terminated by mutual agreement and there was ample material before it on which they could make that finding of fact.  The third ground of appeal is that the Tribunal erred in law and in fact by not holding that a resignation under threat of dismissal may constitute dismissal.  There is no error of law here.  The law relating to duress is conveniently set out in chapter 7 of the latest of edition of Chitty on Contract Volume 1 28th Edition 1999.  It is not necessary to repeat those well known principles.

16.	The fact that there is a notice of dismissal running does not prevent the parties resolving the matter in some other way just as an employee under notice of dismissal can resign whilst under notice of dismissal.  That is what happened here.  The fourth ground of appeal is that the Tribunal erred in law in and fact in holding that there was not misrepresentation by Ms Gibb of matters of pension entitlement.  We have indicated what evidence there was before the Employment Tribunal and there was ample material for the Tribunal to find that there was no misrepresentation in law of the position.  The position is indeed still not clear.

17.	The next ground of appeal is that the Tribunal erred in law and in fact in holding that the Respondents sought to mitigate the consequences of an express dismissal as putting terms to him in circumstances in which they were not obliged to do so.  It is not entirely clear to us what this ground of appeal refers to but it appears to have no relevance to the argument put before the Tribunal by Dr Mitchell and we cannot see how in any way this affected the result.  It is then said that the Tribunal erred in law in not holding the Appellant had a right to a fair and public hearing before an independent Tribunal.  That did not play any part in the Tribunal’s decision.  Article 6 of the European Convention of Human Rights incorporated into English law by the Human Rights Act 1998 is not expressly binding upon an Employment Tribunal but we cannot in any event see that it had any relevance to the decision that the Tribunal came.  The issue here was a simple one: whether or not there had been genuine mutual discharge of the contract of employment by Dr Mitchell’s resignation.
 
18.	The last ground of appeal is that the Tribunal erred in law in holding there was no misrepresentation by Ms Gibb on matters of pension entitlement and if there had been such misrepresentation of which the Tribunal refers that would amount to grounds to find duress in law.  That is in effect a repeat submission and for the reasons we have already given we can find no error of law.

19.	For these reasons we find that there is no arguable point of law in this case.  We therefore dismiss the appeal at this stage.