The claimant had been made redundant on 1 July 2009 and received a letter from his employer on 29 July to that effect that also stated that alternative employment had been discussed (on 3 July), that the claimant would be paid one month's salary and that the Respondent would contact him should demand for the claimant's skills pick up again. The claimant issued proceedings and the Respondent's response form admitted the dismissal, though their statement said the letter was for the claimant to use in the DSS and that the claimant had turned down the alternative employment; the claimant denied this. However the ET found that the claimant had not been dismissed as at the 3 July meeting he had resigned and that the Respondent had "succumbed" to a request for a letter.

In this judgment HHJ Richardson finds that dismissal was not an issue and the ET should not considered it of its own motion when the Claimant had not the opportunity to address it. The Respondent had been right to admit dismissal as the practical reality was that they had terminated the contract.

_________________

Appeal No. UKEAT/0110/11/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27 July 2011

Before

HIS HONOUR JUDGE RICHARDSON, MR M CLANCY, MR T MOTTURE

MR D R GOSNOLD (APPELLANT)

BA SECURITY LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR JULIAN ALLSOP (of Counsel)

Instructed by:
Machins Solicitors LLP
Victoria Street
Luton
LU1 2BS

For the Respondent
MS SHOBANA IYER (of Counsel)

Instructed by:
BA Security Ltd
Security Centre
19 Wellington Street
Luton
LU1 2QH

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

UNFAIR DISMISSAL – Dismissal/ambiguous resignation

The Employment Tribunal erred in law in determining that the Claimant was not dismissed when (1) dismissal was admitted by the Respondent and (2) no opportunity was afforded to the Claimant to make submissions on the question before the Tribunal determined it adversely to him. Moreover on the facts the Respondent had correctly admitted dismissal.

1. This is an appeal by Mr Dean Gosnold ("the Claimant") against a judgment of the Employment Tribunal sitting in Bedford (Employment Judge Moore presiding) dated 9 December 2010. By its judgment the Tribunal held that the Claimant was not dismissed from his employment with BA Security Limited ("the Respondent"). All his claims depended on establishing that he was dismissed, so they were all unsuccessful.

1. The Respondent carried on business in the installation and servicing of security alarms. The Claimant was employed as a service engineer. He was one of three employees in the service department. By 2009 he suffered from a heart condition which left him short of breath, tired and weak. It was not in dispute that he was a disabled person for the purposes of the Disability Discrimination Act 1995. He was effectively incapable of physical work.

1. On about 29 July the Respondent's Mr Hussain wrote the Claimant the following letter.

"Over the past year, as a result of the economic climate and subsequent liquidation of BA Security Systems Ltd the company has suffered financially. Therefore, it is with deepest regret that I have to make you redundant as from 1st July 2009.

Regardless of the effort directed in relation to generating a greater level of work there has been a significant decline in the number of alarm systems we have been employed to install and therefore a decrease in the need for a Service Engineer.

I have discussed alternative employment in the form of employing you in the Sales Department at our meeting on 3rd July 2009; this job would potentially pay a similar salary, with the same hours and location that you currently work at. However, you did express that you feel this is not an appropriate job for your skill set.

As a company, we are not currently in a position to pay you the maximum redundancy payment. However, I have enclosed a cheque for £1597.87 (one month's salary) and if at any point the workload relating to the maintenance of alarm systems increases we will not hesitate in contacting you."

1. The Claimant brought proceedings claiming unfair dismissal, a redundancy payment, disability discrimination and notice pay. He gave the date of dismissal as 3 July which (it will be noted) was mentioned in Mr Hussain's letter as the date of a meeting between them. In the details of his complaint he said that on 3 July Mr Hussain met him and told him that the Respondent had no option but to make him redundant.

1. In its response form, signed by Mr Hussain, the Respondent admitted both the fact and date of dismissal. In a list of issues prepared for the hearing by counsel for the Respondent there was no suggestion of any issue relating to dismissal: the list of issues pre-supposed that there was a dismissal.

1. The Claimant and Mr Hussain both made statements for the Tribunal hearing. The Claimant's statement adhered to the account given in the claim form – saying that he was told on 3 July that the Respondent would have to let him go. Mr Hussain's statement was equivocal. It certainly did not deny that the Claimant was redundant, but said that the Claimant had refused an offer of alternative employment. He accepted that he wrote the letter dated 29 July, saying that "it was the Claimant's suggestion he should leave and he asked me to prepare a letter for him to take to the DSS". He said that he repeated the offer of alternative employment and confirmed that if work picked up they could consider re-employment.

1. At the hearing both the Claimant and the Respondent gave evidence. The Respondent did not apply to amend the response form. The Respondent presented its case first, which is the normal course where dismissal is admitted but not where dismissal has to be proved by a claimant. Both parties were represented by counsel. It is common ground that neither made submissions to the Tribunal on the issue of dismissal. Nor did the Tribunal invite such submissions.

1. The hearing took place on 17 and 18 June 2010. Owing to the ill health of a Tribunal member the Tribunal did not meet to discuss its findings until 21 October. The reserved judgment was handed down on 9 December.

1. The Tribunal found that the Claimant was not dismissed. It found that there was a conflict of evidence as to what occurred both on 3 July and 29 July. It will suffice to set out paragraphs 11 and 12 of its reasons.

"11. Conclusions. It is made clear from the Claim form and the Claimant's closing submissions that the Claims of unfair dismissal and the claim of disability discrimination run in parallel in that both are dependant upon a finding of dismissal. Similarly the Claims for a redundancy payment and notice pay are dependant upon their being a termination of the contract of employment by the employer. The burden of proving dismissal falls on the Claimant's shoulders in respect of all of these claims. The Case presented by the Claimant and pursued by him was that there was an unambiguous and express dismissal on the 3rd July 2009. We have preferred the evidence of the Respondent as to the exchange between the parties and the Claimant has not discharged the burden upon him to prove dismissal on that date. Indeed the words used by the Claimant that he might as well leave and that Mr Hussain would not see him again might well be taken to be unambiguous words of resignation. Ordinarily this is conclusive of the matter and there is no need for any analysis of the surrounding circumstances (Southern v Franks Charlesley & Co (1981) IRLR 278 CA). It is trite law that an exception to this rule arises in circumstances where an employer knows or ought to know that the words used should not be taken seriously. We have of course heard evidence from the parties and have noted that compared to Mr Hussain the Claimant is the more strident of the two and that contrary to his assertion that BA Security was his life he had left and rejoined on occasions in the past. In any event whether or not he had grounds for so doing Mr Hussain did not take him at his word on that occasion or act to the Claimant's detriment. He appears to have continued to pay him. We have referred to the fact that the evidence of the meeting on the 29th July is incomplete but it seems probable that by this date (or if not the 30th July) that Mr Hussain achieved certainty that the Claimant's employment had ended.

12. We have considered at some length the evidential position surrounding the meeting of the 29th July 2009 and indeed have even reflected again during the course of our discussion whether to recall the parties to address the matter further. On a balance of probabilities we have concluded that the Claimant sought a letter from Mr Hussain in order to claim state benefit and Mr Hussain succumbed to the request. We have noted that this capable of explaining why the evidence on this episode is not clear of readily forthcoming. Whereas the terms of the letter and the circumstances of its creation have the potential to be of concern to the relevant authorities they are not matters which we could properly explore with either participant without giving the warning against self incrimination. It follows therefore that we cannot be certain that a further effort would be productive. Essentially it is for the parties to adduce such evidence as they feel they need and it is not for us to enter the forum ourselves. Accordingly we have concluded that it would not be appropriate for us to initiate a further exploration of the point and we must make what we can of the evidence before us."

1. On behalf of the Claimant Mr Allsop submits that the Tribunal misdirected itself in considering the issue of dismissal at all, since it was admitted in the response form and in the list of issues, and the Respondent never resiled from that position. Moreover he submits that the judgment is vitiated by procedural irregularity since the Claimant was afforded no opportunity to make submissions on this issue. He further submits that the Tribunal was perverse to find that there was no dismissal.

1. On behalf of the Respondent Ms Iyer submits that that the judgment can be upheld. She argues that it was a finding of fact open to the Tribunal; that its judgment was careful and thoughtful, not meeting the Appeal Tribunal's strict test of perversity; that the witnesses gave evidence concerning the issue; and that the issue of dismissal was not an entirely new issue, but a prime issue in the proceedings. If there was a misdirection, she submits that the decision was unarguably right and can be upheld for that reason. Alternatively she submits that the matter should be returned to the same Tribunal.

1. There is in truth no answer to this appeal. Dismissal was not an issue in the proceedings. Nothing could be clearer from the response form and the list of issues which Ms Iyer helpfully prepared. Moreover the Tribunal ought not to have raised and considered the issue of its own motion without giving the Claimant an opportunity to address it. We suspect that the delay of 4 months between the hearing and the chambers discussion has much to do with the Tribunal overlooking points which, we are sure, they would not normally overlook.

1. We would add that in our view the Respondent was quite right to admit dismissal in the response form, and the Respondent's counsel was equally right to produce a list of issues which presupposed dismissal. In this case it was not in dispute that the contract of employment had terminated. The question was: who really terminated it? It is plain that Mr Hussain told the Claimant that he was redundant: the only question was whether he would take alternative employment doing a quite different job which he did not wish to undertake. Even the Claimant bowed to the inevitable and accepted that he was to be made redundant, it does not follow that he was really the person terminating the contract of employment. It does not follow that because he wanted Mr Hussain to write a letter so that he could claim benefits he thereby in some way invited the termination of his employment. The practical reality is that it was Mr Hussain who terminated the contract of employment.

1. It follows that the appeal will be allowed and we will substitute a finding that the Claimant was dismissed. The Tribunal did not make findings as to the real issues between the parties, and it would be unsatisfactory to require it to do so now. The matter will be remitted to be heard by a freshly constituted Tribunal.