Appeal No.	 EAT/292/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 July 1997

Before
HIS HONOUR JUDGE J HULL QC
DR D GRIEVES CBE
MRS P TURNER OBE

TOM COBLEIGH PLC	APPELLANTS

MR T YOUNG	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR DAVID PRESTON
The Preston Partnership
2nd Floor
22 Reading Road
Henley-On-Thames
Oxon
RG9 2AA	

	JUDGE J HULL QC:     This is an appeal to us by a public company, Tom Cobleigh Plc, against a decision of the Industrial Tribunal sitting at Nottingham under the chairmanship of Mr Threlfell, with two industrial members, on 19 December 1996.  That Tribunal found that the Respondent to the Appeal, Mr Anthony Young, a Property Manager, who had been employed by Tom Cobleigh Plc, had been unfairly dismissed, but that he had contributed 25% to his dismissal.

	The employers had made it their case shortly and simply that so far from dismissing Mr Young he had resigned on 2 September 1996 after some slightly fraught or worrying exchanges with a Mr O’Hara.  The Industrial Tribunal had to go into it.  The question for them was, first and foremost, had he resigned or was he dismissed?  The employers, after an interval, had treated the employment as being at an end, so that if he had not resigned it was clear that he was, in fact, dismissed.  In due course, having reached the decision which they did, they went into the question of compensation.

	The appeal to us is on this basis; that it should have been clear to the Industrial Tribunal that this was a resignation, that there really was, on the facts, no alternative to such a finding.  So we have to look at the facts.  The Tribunal heard the Applicant in person.  The employers were represented by Counsel and the Tribunal said that the evidence which they heard was all evidence which they could accept, from both sides.  Everybody was telling the truth, although there were slight differences of recollection caused by lapse of time and point of view and so forth.  

	The Tribunal set out the circumstances.  The employers enjoyed a period of extraordinary and rapid expansion.  Mr Young, the Property Manager, was going to find himself with another Property Manager, with whom he would work in tandem.  He had just had a new person put in over him and to whom he was to report and he was going to lose, among other things, his secretary, so for various reasons associated with the rapid expansion of this company, Mr Young found himself unhappy.  

	The Tribunal go through the evidence.  They say that on 2 September there was a discussion with Mr O’Hara, the Director to whom he was responsible.  Among other sources of upset, the office accommodation had been changed around and changed for the worse, so far as Mr Young was concerned, and he felt that he was losing status.  It had an effect on his pride they say in and in paragraphs 4, 5 and 6:

“At some stage in that conversation, he said to Mr O’Hara that he would be off.  Mr O’Hara had an important meeting with the Managing Director and said to the applicant that he wanted to attend that meeting and would speak to the applicant later.  The applicant responded to him ‘if I’m here, I’m here.  If I’m not, I’m not’.  The applicant did stay at the premises and after Mr O’Hara’s meeting had finished about one and a quarter hours or so later, there was a further discussion.  In this the applicant again talked about his concern for his status, said that he felt that the directors had lost touch with the Company and that he felt that things were being kept from him.  There was some discussion about the applicant staying with the Company and then, towards the end of the conversation, the applicant stood up, offered his hand to Mr O’Hara, who shook it, and the applicant then turned to leave.  As he was leaving, the applicant said ‘I’ll have to let you have the car back whenever’.  At no stage did Mr O’Hara ask the applicant if he was resigning and the applicant never said that he was.  The applicant took with him a number of his personal possessions.  He gave a kiss to the receptionist as he left and said to his former secretary ‘goodbye, it was nice working with you’.
Mr O’Hara thought that the applicant had resigned and told the Managing Director.  He also spoke to the Human Resources Director.  The Human Resources Director then wrote a letter to the applicant which was delivered by hand to his home some 25 miles away.  The letter set out the Company’s perception of the fact that the applicant was uncomfortable about the changes and that he had been offered the opportunity of speaking with the Managing Director on 2 September but had declined.  The letter started with the following:-
‘This morning, following a meeting with Ray O’Hara, you left the premises with an indication that you may have terminated your employment.  In the circumstances, we are extremely concerned about your actions and we require you to make immediate contact with the Company so that we may establish exactly what is your position.  We would like to receive your response by no later than noon on Wednesday 4 September 1996’.
It also said:-
‘If you have in fact terminated your employment, whilst we would be very sad, we would like you to confirm that fully in writing by noon on Wednesday’.
The applicant did reply to that letter by a letter of 3 September but because of a postal strike, it was not delivered until 5 September.  However, the applicant did telephone at 9.30 on 4 September when he spoke to his former secretary, Karen Smith.  He confirmed to her that he had sent a letter and that he wanted confirmation that it had been received.  He also said that he was visiting his doctor the following morning.  His letter set out his views of the changes in the Company.  He did not specifically say that he had not resigned, nor did he say he had resigned, but at the end of it said ‘the above sequence of events has caused me a tremendous amount of stress before and after my holiday and I felt it best to leave the premises and take a break from 5 years’ hard work to resolve a satisfactory solution’.  He also said that he had booked an appointment with his doctor and would be in touch.
Although Ms Pearson [the Human Resources Director] was aware of the telephone call and that a letter was on its way, she replied by letter of 4 September, which was also delivered to the applicant by hand, saying that he had not responded to the communication and had not reported to work and that therefore the Company could only assume that he had confirmed his resignation, which the Company reluctantly accepted.  The letter confirmed that it was understood that the applicant thought that he had been misquoted and that whilst his resignation had been accepted, the Company would respond to any issues that he might raise.  He was told that he must return his possessions no later than 5 pm that Friday.”

	Then they went into subsequent correspondence.  They said that on 9 September he had written a letter saying that he had been declared unfit for work by his GP for three weeks.  Later he said, “I have not resigned and would like to discuss a timescale for my return to work”, but the Company said, “We have accepted your resignation”.  Then the Tribunal set out the arguments that they had heard.  They say, “We have set out the facts as we found them”.  They refer to the stress, which they accepted; that Mr Young was under stress.  And they said, in paragraph 9:

“Although we accept that Mr O’Hara thought that this was the case, [an unambiguous intention to resign] we cannot find that there was, in the discussion, an unequivocal resignation.  None of the words used, even in the context of the problems with the applicant’s position, can amount to a clear intention to resign.  All could be consistent with an employee who was under stress needing to step back and consider his position.  We also take into account the respondent’s letter of the same day, which is entirely inconsistent with the respondent’s suggestion that they had no doubt that the applicant had resigned.  The letter asked if he had in fact resigned and asked him to say what exactly was his position. ... It seems to us inescapable from the form of that letter that the respondent’s position after the applicant had left was that it was thought that he had probably resigned, but that the respondent could not be sure and asked him to confirm if he had resigned.  We are satisfied that the applicant’s actions on that day did not amount to an unequivocal resignation and could not, and were not, reasonably accepted by the respondent as such.”

	So they said, in those circumstances, in treating his employment as being at an end, the Respondents were dismissing him and it was accepted in those circumstances that it was unfair.  There were no grounds on which they could have fairly dismissed him on that occasion.

	The appeal to us is on three grounds and in the Notice of Appeal they are put as follows.  First of all, having regard to the facts (and they are set out for us by Mr Preston) the decision of the Tribunal was perverse.  In other words, it would be obvious to anybody applying the correct tests that this was a resignation.  Secondly, says Mr Preston:

“The Tribunal misdirected itself in law alternatively misunderstood the law, alternatively misapplied the law and/or misunderstood the facts or misapplied the facts.”

	What it amounts to is this, as explained by Mr Preston:  that this was not “a heat of the moment” case and even had it had been “a heat of the moment case” the Tribunal would not be obliged, should not, indeed, go into anything that happened later than, say, the next day, to look and see whether it was a mere statement, “I’m off”, followed by a repentance.  As the authorities show, that may well not amount to a resignation.  Thirdly, in the Notice of Appeal, it is said that the Tribunal applied a subjective test rather than an objective test.  

	So we have to look and see (with Mr Preston’s assistance of course) whether those criticisms are made out.  One has to bear in mind that this was the “resignation” of a senior executive who had been a Property Manager, who had been with the firm for, I think, more than five years.  He had an important interest in the Company.  He had a very stressful job no doubt.  The Company was expanding very rapidly indeed.  He had various causes for dissatisfaction.  He expressed his dissatisfaction.  What to make of the words he used?  The Tribunal comment justly that it was perfectly clear from the letter that the employers wrote that they, or at any rate the writer of the letter, were in doubt about whether it was a resignation.

	The Tribunal were fully entitled to look at everything that was said and all the circumstances to see whether, when he left the premises on 2 September, he was in fact resigning, or whether the true view was that he was merely indicating dissatisfaction and an intention to consider his position.  A possible resignation?  A possible re-negotiation of his contract? - matters of that sort.  One knows that resignation itself may involve very different situations.  A man who wishes to resign may wish to do so only after negotiations about his position.  He may say, “I am going to resign, but, of course, only lawfully.  I will give proper notice”.  He may say, “I don’t care what the contract says, I will not work another hour for these employers”, a unilateral repudiation of his contract.  All those are matters which would be in the Tribunal’s mind.

	The Tribunal looked at the subsequent correspondence.  That is criticised.  It appears to us that they were perfectly entitled to look at the subsequent correspondence to see what the reality of the situation was.  For example, if Mr Young had written a letter the next day, or a week later saying, “I made it perfectly clear to you that I was resigning from that very moment”, why should they not look at that?  Why should they not look at anything that he had written, or anything the employers had written which related to this topic?  Under the Civil Evidence Act and, indeed, on first principles with regard to admissions, what the parties have to say later may or may not be of probative value.  A Tribunal proceeding in a summary way does not have to ask itself, “Is all this highly probative, marginally probative or perhaps not probative at all”, in deciding to look at it.  They were fully entitled to look at these letters and they were fully entitled to give effect to them, in particular the employer’s doubts expressed in their letter about the position.  And the fact, too, that Mr Young in their view had not expressed himself clearly as resigning on 2 September.  When he wrote he referred to his unwell condition, his stress condition which led his doctor to say that he should take three weeks off and that he did not answer the question, “Have you resigned?”.  He left that very much up in the air.  He had rung up and he was concerned about the fact that the post was taking time because there had been a strike.  Why should he worry about that if he had, in fact, resigned?  These are the sort of questions which occur to a Tribunal of fact.

	What we have to ask ourselves is, “Is there any error of law shown by the Industrial Tribunal in any part of their decision?”.  We, of course, must consider the criticisms which are made.  We have considered them.  Even in the light of those criticisms we cannot find any error of law by the Tribunal in their conclusion, which we think was not perverse, that this was not a resignation on the 2nd and their conduct in looking at the subsequent letters to see whether any enlightenment or reinforcement or, on the contrary, contradiction of their view was to be found there.  Further, we do not think that they applied a subjective, as opposed to an objective, test.  On the contrary, they expressly rebutted that.  They said “Mr O’Hara thought it was a resignation, but we think he was wrong.  We have looked at all the facts”.

	So these criticisms, although put forward very fairly and forcefully, in our view are not made out.  We think that this appeal is not fairly arguable having heard all that has been said by Mr Preston.  The appeal is in our list under our Practice Direction and having considered the matter, we therefore have to say that it must be dismissed at this stage and that is the decision of us all.