Appeal No. EAT/0445/03 DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 September 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
LORD DAVIES OF COITY CBE
MR P GAMMON MBE

MR D EDWARDS	APPELLANT

(1) GOVERNING BODY OF DYSON PERRINS CE HIGH SCHOOL	RESPONDENTS
(2) WORCESTERSHIRE COUNTY COUNCIL

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS K GOLLOP
(of Counsel)
Instructed by:
Association of Teachers & Lecturers
Legal Services Department
7 Northumberland Street
London WC2N 5RD	

HIS HONOUR JUDGE J McMULLEN QC

1	This case is about wrongful dismissal.  The judgment represents the views of all three members who pre-read the relevant papers.  We will refer to the parties as Applicant and Respondent.

Introduction

2	It is an appeal by the Applicant in those proceedings against a reserved decision of an Employment Tribunal sitting at Birmingham, Chairman Mr O T David, registered with Extended Reasons on 27 March 2003.  The Applicant was represented there and here by Miss Katherine Gollop of Counsel.  The Respondent was represented by Mr D Elliot, solicitor.

3	The Applicant claimed wrongful dismissal.  The Respondent initially accepted that it had not terminated the contract of employment of the Applicant properly and was in breach; but denied the extent of the damages claimed.  This concession was later withdrawn by agreement of the Tribunal.

The Issues

4	The essential issue as defined by the Employment Tribunal was initially to determine the measure of damage for the admitted breach as between two competing dates of termination; that is, 30 May and 25 July 2002.  But after the Respondent was allowed to resile from its concession, the issue was to determine whether the Applicant resigned or was dismissed.  The Tribunal decided that the Applicant resigned his employment on 30 May 2002 and dismissed his complaint of wrongful dismissal.  He appeals against that decision.
5	Directions sending this appeal to a Preliminary Hearing were given in chambers by the President.  An application for a stay was refused by His Honour Judge Peter Clark.  That was in relation to other cases which are being pursued by the Applicant’s trade union, ATL.

6	Written submissions were invited from the Respondent in opposition to the Notice of Appeal which have been provided to us.  Mr Elliot has attended today although he appears virtually, and we have not needed to ask him anything.

The Applicable Law

7	No legislation was cited to the Tribunal or to us, although there is a statutory background specific to employment in the education sector.

8	The claim was based on breach of contract for which the Employment Tribunal has jurisdiction following the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994.

9	The Employment Tribunal directed itself by reference to the leading authorities which are cited in its Extended Reasons and are: Healey v Bridgend County Borough Council [2002] EWCA Civ. 1996 and The Queen (Dorling) v Sheffield City County and The Governing Body of Woodthorpe School [2002] EWHC 2505, Goldring J.

The Facts

10	The Respondents are respectively a school at which the Applicant was a teacher and the County Council responsible for it.  The school is in Malvern, Worcestershire.
11	The relevant employer is the County Council for the purposes of pensions which is what this case is about.  The Applicant is 57 and had been a teacher.  He ran into trouble with his back.  At the end of May 2001 the problems became severe and he began to take sick leave from which he never returned.

12	The Tribunal found that he was permanently unfit for teaching and in consequence was no longer permitted to carry out his side of the contract of employment.  As is to be expected, there is considerable sympathetic treatment given to teachers in such a situation by the relevant contractual and statutory framework.  The Applicant was entitled to apply for early retirement on the grounds of ill-health.  He sought to do so.

13	At the end of May 2001 he had a conversation with his head teacher.  It resulted in a letter being sent in his support to Teachers Pensions, the statutory body responsible for the administration of the Pensions Scheme.

14	The Tribunal appears to regard the writing of the letter and the meeting as a continuous matter and in it the head teacher expressed his support for the Applicant and said this:

“Mr Edwards has only reluctantly taken the decision to retire in the knowledge that his condition will not improve.  He now wishes to depart with dignity and not fade out after a prolonged period of uncertainty and absence.  I saw him on Friday and he is clearly not fit to be at work at the moment.  For the sake of all concerned, Mr Edwards, his colleagues and his students I would respectfully urge you to accept his application without delay.”

15	On the form signed by the Applicant he gave his last date of employment or proposed date of retirement as 31 August 2001.  He indicated in a declaration that he would apply for early retirement benefit and would inform Teachers Pensions of any changes in his retirement date or if he took up employment.

16	Teachers Pensions wrote to him on 11 July 2001 indicating that his application to retire had been granted on the basis that he was at that stage too ill to continue teaching.  They went on to say:

“Your employer will be informed of our decision shortly.  If you are still in pensionable service you should agree with your employer the earliest possible retirement date.”

Thus from that date the Tribunal was entitled to find, as it did, that the Applicant was well aware that he was deemed to be permanently unfit for teaching.  Following that letter the Respondent wrote on 16 July asking for the Applicant to submit his formal notice of intention to retire on 31 August 2001.

17	It will be appreciated that in teaching there are finite periods during which notice can be given and they correspond broadly to teaching terms.

18	The matter was delayed for a year because there was correspondence involving the ATL and in due course the Applicant received a letter from the Respondent saying this:

“I have received correspondence from….ATL….in which she indicated that you wished to access your ill health retirement pension and lump sum on the day following your last day of pensionable employment, i.e. 30th May 2002.  It has been agreed that this is a mutually acceptable date for the commencement of pension payments.  I would be grateful therefore if you would provide written confirmation of your agreement to this.”

That indicates an arrangement sensibly agreed between the Applicant’s union representative and his employer.  It also refers to the fact that a year had gone by during which the Applicant was well aware that he was permanently unfit for teaching.

19	The Respondent had accepted that he was genuinely off work sick and had operated the provisions of its Sick Pay Scheme, which is to provide for six months at full and six months at half pay.  Those benefits, therefore, came to an end on 30 May 2002.  There is logic, therefore, in the Applicant’s position to seek to receive some form of remuneration when his sick benefits ceased.  So it was that the Applicant wrote himself, not through his union representatives, saying this:

“Thank you for your letter regarding commencement of pensions payments.
I agree that I wish to access my pension and lump sum on 31st May 2002.”

Which he did; and in due course received a P45 indicating that his pensionable employment had ceased on that date.

20	Thereafter, on 25 July 2002, the Respondent wrote to the Applicant’s union:

“The letter dated 8 May from Mr Edwards was therefore considered to be and accepted as a mutually acceptable date for the termination of his employment, that is, 30 May 2002.  Payment of ill health pension benefits would commence on 31 May 2002.”

That represents the Respondent’s position as finally adopted before the Employment Tribunal.

21	The Tribunal found that the contract of employment ended on 30 May 2002 by reason of his retirement on the grounds of ill health.  He resigned with effect from that date.  It thus dismissed his application.

22	Between the dates of the Tribunal hearings on 7 November 2002 and 10 February 2003 the Court of Appeal determined the case of Healey and Goldring J, coincidentally on the same day, determined the full application for judicial review, leave for which had been granted by Patton J, in the case of Dorling.
23	On the resumption of the Employment Tribunal hearing, the Respondent decided to change its position and, as we have indicated, permission was given for that.  No further evidence was called.  The Tribunal made its findings therefore on the material which was available on that day.  It is accepted that there was an opportunity for further evidence to be called; neither party chose to do so.

24	The Tribunal regarded itself as being bound by Healey, for it examined both Dorling and Healey in its Reasons.

The submissions

25	The Applicant’s case is that the Tribunal was wrong to regard itself as bound to follow Healey since the facts in Healey were measurably different.  He also contended that there was insufficient information about the conversation between himself and the head master, to which we have referred, at the end of May 2001.

26	It was further contended that there was no, or no sufficient, evidence upon which to base the conclusion that notice had been given to the head master.  As Miss Gollop appreciated during exchange with us, a claim of insufficient evidence, provided some evidence was there, would not be susceptible to a jurisdiction such as ours based as it is on questions of law: Employment Tribunals Act 1996 section 21.  If no evidence were given, that would be a different matter.  The evidence in this case constituted the letter which we have read from the head master and the Applicant’s oral evidence about it.

27	The contention of Miss Gollop, maintained through her Skeleton Argument, for which we are very grateful, and her oral submissions today, upon which she has been robustly questioned by all three of us, is that the Tribunal should not have followed Healey but have followed Dorling.  The practical effect of her submission is that the Applicant would continue to be in unpaid employment by the Respondents until 25 July 2002 whereupon he would be given notice.  Notice with pay would run until 31 December 2002 because in his contract of employment such a circumstance is expressly provided for (see paragraph 6.1 of his contract).

28	Against that payment would have to be offset the payment of pension benefits which he would have received.  She has broadly considered the calculations and indicates that there is a benefit to the Applicant in this matter.

29	On behalf of the Respondent, in written submissions put in at the invitation of the President, it is contended that the Healey judgment fully informed the decision of the Employment Tribunal and the Tribunal was correct to follow it.  There was ample evidence upon which the Tribunal could properly apply Healey.

Our Conclusions

30	It is unfortunate that both the substantive judicial review in Dorling and the Court of Appeal hearing in Healey were held on the same day.  The ATL is engaged, quite properly on behalf of its members, in a series of cases seeking to test the relationship between retirement and dismissal.

31	The Court of Appeal considered the judgment of Patton J on the leave application in Healey.  It did not have the opportunity to consider Goldring J’s judgment nor, more importantly, did Goldring J have the benefit of the Court of Appeal’s view of this complex relationship.

32	As far as we are concerned, the situation in Healey is sufficiently analogous to the situation in our case for us to be bound as a matter of law to follow it.  We accept that the practical effect of the Applicant’s seeking to retire was that if his application for early retirement had been accepted he would retire.  If not, he would stay on.  That is precisely the situation reflected in paragraph 22 of the judgment in Healey, given by Ward LJ with whom Longman and Schieman LJJ agreed, for this is what he said:

22	“An objective consideration of the communicated decision to retire, treated as a notice to retire, would carry with it the implication that it was to be effective only if the application for benefit was successful.  That condition has been fulfilled.”

33	In our judgment that can be applied to our situation.  An objective consideration of what happened at the end of May 2001 was a decision by the Applicant that he would retire if he could get the pension benefits.  They were made available to him with effect from the end of May 2002 and thus his wish came into fruition.

34	Further, Ward LJ went on to describe the situation which had been maintained in Dorling, in rather pejorative terms (cited by the Employment Tribunal) as follows:

23	“In my judgment the other implication which ineluctably arises from the facts is that her retirement would become effective form the earliest moment that benefits become payable.  She was doing two things: first, she was applying to a third party for these retirement benefits; but secondly, she was giving her employers notice of a decision to retire.  If the officious bystander were to determine when that retirement would become effective, he would say, “when the benefits become available to her.”  He would not countenance a position that Mrs Healey was playing the Dorling waiting game of forcing the employer to dismiss her.  The officious bystander would not imply into the notification of a decision to retire a term that she was giving a contractual period of notice.  The decision was open-ended beyond the three months period contractually provided for.”
35	What was described as the waiting game in Dorling enured in due course to Mr Dorling’s benefit, for Ward LJ at paragraph 21 said this:

21	“…whether or not there is some other statutory regulation which would compel an employer to give the ill employee notice and the bonus of another three or four months of full pay, or whether there is no such obligation on the employer, does not matter for present purposes in this case.  Either the employment terminated because of the resignation or it terminated because of unfair dismissal.”

Again, we agree with that description, substituting as we do the words ‘unfair dismissal’ for ‘wrongful dismissal’.  The Tribunal has decided as a matter of fact that this relationship came to an end as a result of resignation upon which retirement benefits flowed.  It cannot, in our judgment, be faulted for that decision. This appeal is dismissed.