[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jones v Mid-Glamorgan County Council [1997] EWCA Civ 1680 (13 May 1997) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/1680.html Cite as: [1997] EWCA Civ 1680, [1997] ICR 815

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATUREError! Reference source not found.
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE INDUSTRIAL TRIBUNAL

		Royal Courts of Justice Strand London W2A 2LL
		13th May 1997

LORD JUSTICE WAITE: This appeal concerns a case where an Industrial Tribunal was required to decide whether an employment ostensibly ended by resignation of the employee had in fact been terminated in circumstances which amounted to dismissal. The issue which it raises is whether the Industrial Tribunal had fallen into the error of regarding the earlier findings of a court in common law proceedings between the same parties, raising similar - but not identical - issues, as binding on them, so as to compel the tribunal to base their own conclusion upon those same findings.

The case arose (to describe the background first in short summary) from the acceptance by an employee of voluntary retirement. His resignation was followed immediately by a dispute as to whether (as he contended) the retirement was forced upon him by the employers and therefore constituted a dismissal; or whether (as the employers contended) the employment had been terminated by mutual agreement. That dispute was taken by the employee to an Industrial Tribunal, but by agreement on both sides the unfair dismissal claim was put into abeyance while the parties litigated another dispute arising out of the same termination - namely the amount of pension to which the employee was to be entitled following retirement. He contended for a higher figure calculated on the basis of the employers' standard retirement terms. The employers relied on correspondence and discussions in which he had, they claimed, agreed to accept a lower figure based on calculations made outside the standard terms. The employee claimed alternatively that if there had been an agreement outwith the standard terms, such agreement had been imposed upon him by duress and was unenforceable.

This dispute ("the pension dispute") was tried in the county court, where the employee failed. The employers' version of the severance terms was accepted, and the judge rejected the employee's allegation of duress. The employee appealed unsuccessfully to the Court of Appeal.

That left the way open for the unfair dismissal claim to proceed. It was decided by an Industrial Tribunal in Bristol on 24 October 1995. The employee's case was that he had been subjected to such pressure to retire that he had in reality (and in law) been dismissed. The allegations on which he relied to support that case bore a close affinity to the allegations of duress on which he had relied (unsuccessfully) before the county court in the pension dispute. The Industrial Tribunal dismissed his claim, holding that the employment had terminated by agreement through a genuine voluntary retirement. In their written reasons for that decision the tribunal directed themselves expressly as to their duty not to find the claim before them to be estopped by the decision in the county court unless there was a complete identity of issues between the two sets of proceedings. Nowhere in their reasons did they state that they regarded such an estoppel as being established, and their final conclusion that no dismissal had taken place was expressed in language appropriate to a holding of their own based upon findings of their own.

Elsewhere in their reasons, however, the Industrial Tribunal quoted extensively from the findings stated in the judgment of the county court judge in the pension dispute, and even referred to those - at one or two points in their written decision - as "binding" upon their own tribunal. Those references were held, on the employee's appeal to the Employment Appeal Tribunal heard on 28 November 1996, to be fatal to the validity of their decision, and a fresh hearing of the claim was ordered before a differently constituted Industrial Tribunal. From that decision the employers now appeal to this court. It is regrettable to have to add that the effect of there having been two disputes, conducted successively before a court and a tribunal, has been that well over eight years have now passed since the date of termination, which occurred on 31 October 1988.

THE LAW

A. Dismissal by Enforced Resignation

Courts and tribunals have been willing, from the earliest days of the unfair dismissal jurisdiction, to look, when presented with an apparent resignation, at the substance of the termination for the purpose of inquiring whether the degree of pressure placed on the employee by the employer to retire amounted in reality to a dismissal. In the instant case the employee had framed his claim in constructive dismissal, and the Industrial Tribunal dealt with it upon that footing. There was accordingly some discussion before us as to whether the principle I have just mentioned is to be regarded as deriving from an inference of circumstances giving rise to a constructive dismissal under S 95 (1) (c) of the Employment Rights Act 1996, or whether it is more broadly based as a species of direct dismissal. For my own part, while tending to favour the latter view, I do not find it necessary to resolve that question in the present case because the principle itself (whatever its origins) is well settled. It is a principle of the utmost flexibility which is willing in all instances of apparent voluntary retirement to recognise a dismissal when it sees it, but is by no means prepared to assume that every resignation influenced by pressure or inducement on the part of the employer falls to be so treated. At one end of the scale is the blatant instance of a resignation preceded by the employer's ultimatum: "Retire on my terms or be fired" - where it would not be surprising to find the Industrial Tribunal drawing the inference that what had occurred was a dismissal. At the other extreme is the instance of the long-serving employee who is attracted to early retirement by benevolent terms of severance offered by grateful employers as a reward for loyalty - where one would expect the Industrial Tribunal to draw the contrary inference of termination by mutual agreement. Between those two extremes there are bound to lie much more debatable cases to which, according to their particular circumstances, the Industrial Tribunals are required to apply their expertise in determining whether the border line has been crossed between a resignation that is truly voluntary and a retirement unwillingly made in response to a threat. I doubt myself whether, given the infinite variety of circumstance, there can be much scope for assistance from authority in discharging that task: indeed attempts to draw analogies from other cases may provide more confusion than guidance. In cases where precedent is nevertheless thought to be of value, the authority that will no doubt continue to be cited is Sheffield v Oxford Controls Co Ltd [1979] ICR 396.

B. Issue Estoppel

The rule that issue estoppel per rem judicatam does not arise except in cases where the issues in the current proceedings are identical with those that were determined, and were necessary for the decision, in the previous proceedings applies with the same force to Industrial Tribunals as it does under the general law - see Harvey on Industrial Relations in the passage [para 1017] which is cited in the decision of the Industrial Tribunal which I shall be quoting later.

THE FACTS

The employee was appointed Assistant Area Surveyor (East) to the employers (a local authority originally constituted as the Mid Glamorgan County Council but now the Caerphilly District Council) in 1981. When in 1986 a vacancy occurred for the higher post of Area Surveyor, the employee's application for it was unsuccessful. He made known his resentment by behaviour towards the successful applicant which led to his being disciplined by the employers, who directed his transfer to a different workplace, located in Cardiff. The employee did not make the transfer. Having first attempted unsuccessfully to resist it on health grounds, he began to discuss with the employers the alternative possibility of early retirement. This too, so he proposed originally, should be on grounds of ill health, but that was not acceptable to the employers, and on 15 August 1988 the employee wrote to the county personnel officer ("CPO") stating that he would be willing (among other options including a possible transfer to different duties) to:

"retire early in the interests of the Service and in accordance with the Council's Voluntary Early retirement Scheme."

The Scheme there referred to was constituted by a document known as Pers.43/1, under paragraph 4 of which an employee who was 50 years of age or over, but who had not yet reached the age of 65, was entitled to have his reckonable service at the date of early retirement enhanced by the shortest of various periods of which the one applicable to the employee was ten years. Paragraph 6 provided that an employee who volunteered to retire early under the Scheme would (if the retirement was accepted) be retired in the interests of the efficiency of the Council's service, in which event he could be entitled to receive:

".....a lump sum retiring allowance and retirement pension calculated on the basis of reckonable service plus compensatory added years up to 10 years....."

The Scheme was however subject to the statutory requirements imposed by the Local Authority (Compensation for Premature Retirement) Regulations (SI 1982 No 1009) of which regulation 5 provides (so far as relevant):

"5(1) Subject as hereafter in these regulations provided, an employing authority may.....credit an eligible person with a period of service not exceeding the shortest of the following periods -

.....

(d) a period of 10 years"

On 5 October 1988 a letter from the CPO to the employee stated, after confirming that the option of retirement on health grounds was not acceptable in the light of the report received from the community physician, as follows:

"Having said that, I note that you make application for early retirement and I would confirm my conversation, which was on a without prejudice basis, with Mr Finch [the Union representative] as to the matter of two added years."

The employee made it clear by a letter dated 13 October to the CPO that he had completed his application form for voluntary retirement under protest, because the terms offered to him were less favourable than those offered to other staff under Pers. 43/1, and he reiterated his willingness to accept the alternative options of retirement on health grounds or being employed in the different post of Assistant Works Manager. The response was an insistence by the Council that if he was to remain employed he must do so in the post (to which he had already been transferred) of Senior Engineer at Cardiff, and a reiteration of the refusal to allow him to retire on health grounds.

Discussions followed and were brought to a head in this way. On 31 October the CPO wrote to the employee:

"As a result of the discussions with my Deputy this morning and since you did not report for duty this afternoon as discussed, and since you have not communicated with the office in relation to voluntary early retirement, I can only conclude that you are not prepared to accept either of the alternatives offered to you namely:

(i) to return to duty as a senior engineer at [Cardiff].....

(ii) to accept the voluntary early retirement offered to you on the terms and conditions stated.

In the circumstances I have to give you three months notice to terminate your employment on 31 January 1989 as a senior engineer with the County Council."

That letter was delivered by hand on the same day, and prompted an immediate telephone call by the employee to the CPO's deputy. The result of that was a further letter from the CPO to the employee dated 1 November 1988 saying:

"I refer to my letter dated 31st October 1988 which was delivered to you by hand on that date, and to your subsequent telephone call to my Deputy.....

I understand you claim you misunderstood the situation as it was left after your visit to these offices yesterday.....[the writer then stated his own belief that the clear agreement had been that the employee would either apply for early retirement or return to work - and that he had done neither, and continued].....

In the circumstances however I am prepared to accept your misunderstanding of the situation and I confirm that the Voluntary Early retirement offer.....remains open to you.

This offer is made strictly on the understanding that you will indicate your acceptance by signing at the foot of the duplicate letter attached hereto...

Should you decide not to so proceed then my letter dated 31 October.....will continue to apply in its entirety."

The duplicate there referred to contained an indorsement:

"I confirm that I accept the Voluntary Early Retirement offer as fully set out in the [CPO's] letter dated 27 October 1988."

That indorsement was signed and returned by the employee on the same day (1 November).

From that point onwards he was paid a retirement pension calculated on the basis (which the employers insisted had been agreed) of a two year enhancement.

THE PROCEEDINGS

On 17 January 1989 the employee filed a complaint in the Industrial Tribunal claiming that he had been dismissed. He described it as a constructive dismissal, and I have already given my reasons for saying that it is unnecessary to consider in this case whether he was right to frame his claim in that way, or whether it would have been open - and perhaps more appropriate - for him to rely on a claim of direct dismissal. The conduct of the employers on which he relied in his written grounds as having given the termination the character of a dismissal was (in summary) their imposition upon him of a change of workplace which allegedly involved a downgrading, the operation of a disciplinary process which he described as malicious, and (in the context of his wish to retire on health grounds) their alleged failure to act on medical opinion. In their Form IT3 the employers denied those allegations, contended that the employee had sought and been granted voluntary retirement, and submitted that his application was vexatious.

On 3 March 1989 the employee started proceedings against the employers in the county court to enforce his claim in the pension dispute. He sought a declaration that he was entitled to a 10 year enhancement under the terms of Pers. 43/1 and damages for breach of that entitlement. The particulars of claim (as later amended) included the following pleading:

"The [employers] by their servant or agent [the CPO] threatened the plaintiff that if he did not sign the endorsement at the foot of the letter of 1 November 1988 he would be dismissed. Acting under the said threat the plaintiff signed the said endorsement purporting to accept the voluntary early retirement offer .....The plaintiff's signature was appended thereto under threat of dismissal, duress, avoidable and/or unenforceable."

It was agreed that the unfair dismissal claim in the Industrial Tribunal should go into abeyance pending the disposal of the pension dispute in the county court. That was duly heard by Mr Recorder Masterman who gave judgment in the Bargoed County Court on 1 November 1991 dismissing the claim on the ground that the effect of the pre-termination negotiations (about which he had heard a considerable amount of evidence) was to entitle the employee to a two year enhancement only - by an agreement wholly independent of Pers.43/1. The allegation of duress was held not to have been made out. The employee's appeal from that decision (which he presented as a party in person) was dismissed by the Court of Appeal (Butler-Sloss LJ and Ewbank J) on 17 November 1994 on the preliminary ground that the reference to 10 years in Pers.43/1 was in any event a ceiling figure only, and that even if the employee had been successful in claiming that his retirement was effected under that Scheme the employers would still have had a discretion to fix a lesser period of enhancement than ten years.

The employee thereupon reinstated the unfair dismissal claim, which was heard by the Industrial Tribunal on 12 June and 15 October 1995. He presented his claim in person. The employers were represented by their solicitor. It is apparent from the first paragraph of the Industrial Tribunal's reasons that both sides had agreed that the issue of whether or not there had been a dismissal at all should be taken first as a preliminary issue, and that the tribunal should begin by hearing the employee's evidence on that issue alone. At the conclusion of his evidence, the employers submitted that there was no case to answer. The Industrial Tribunal, while acknowledging that it was the usual practice in their jurisdiction to hear both sides in all cases and not to entertain submissions of no case after only one side had given evidence, nevertheless felt justified in regarding the present circumstances as exceptional. The submission of no case was allowed to be made, and the Industrial Tribunal upheld it.

In their extended reasons for that decision (handed down on 13 November 1995) the Industrial Tribunal began by describing the course of dealing between the parties as reflected in the correspondence which I have already set out. Turning to the case presented to them by the employee (who was - it will be remembered - representing himself) the decision states:

"8. He raises all sorts of issues in relation to the legality of the actions that the respondents took in awarding him his pension. Those issues have already been ventilated in county court proceedings which were decided against him. [The terms of Pers. 43/1 were then quoted] The applicant, as I have just said, took proceedings in the county court in relation to his entitlement which were heard by Mr Recorder Masterman on 1 November 1991 when he made a number of findings of fact. Findings of fact which were made between the parties in previous proceedings between the same parties are binding upon this tribunal in proceedings between those same parties if the findings of fact relate to the issues which that court or tribunal had to decide. The law can be summarised in that respect as it is in Harvey:-

"It is to be noted that in all cases where issue estoppel is raised as a defence in subsequent proceedings, it is essential that the issues in those proceedings are identical with those that were determined in the earlier proceedings and also that the findings of fact in the judgment in those earlier proceedings are clear and precise....It is likewise essential that the findings in the first proceedings are necessary for the decision in that case, and also that the decision itself is intra vires the court or tribunal making it; again, if they are not, there can be no estoppel (see O'Laoire)."

9. The issues raised in the County Court proceedings related to the pension entitlement. The respondents say that a number of findings made by the learned Recorder in those proceedings are binding upon us. Those are findings which the Recorder had to deal with in those proceedings in relation to the issues before him. They are binding upon us. These are the findings in question."

There then followed extensive citations from the judgment in that case, concluding with the following extract:

"I am satisfied that [the employee's] failure to get in contact with [the CPO] as he should have done was the last straw that broke the camel's back of the Council's patience, and provoked the letter which purported to terminate the plaintiff's employment. It was only when he realised that he had this time gone too far that the [employee] then persuaded [the CPO] to accept that there had been some kind of misunderstanding and that the [employee] agreed to sign the [indorsement on] the letter..... I then have to consider whether the [employee] signed voluntarily in the sense that he agreed to accept early retirement with just two years enhancement in the absence of what I will call any illegitimate pressure. I have no doubt whatsoever that the [employee] was under no misapprehension as to what he was signing for......I am satisfied the Council acted within its powers in offering the early retirement terms which the [employee] accepted, albeit somewhat grudgingly.....It follows from all this that when the [employee] signed to agree to the early retirement package which was being offered, he knew the terms that were being offered even if he was uncertain of the precise statutory basis, and that the Council was proceeding on the basis of the same terms and that there was, therefore, no common mistake nor were the parties at cross purpose."

After that quotation the Industrial Tribunal continued:

"In effect it seems to us that what the learned recorder found was that there was mutual agreement between the parties on 1 November 1988 that the applicant's employment would come to an end and that he would be granted a pension by the employers on the basis that it was no longer "in the interests of the efficient exercise" of the council's functions for his employment to continue. That being so the question we have to ask is: Was there a resignation? Clearly, on the evidence before us, not only in relation to the learned recorder's findings but on the evidence that we have heard, there was no such resignation. What happened on 1 November 1988 was that the applicant elected to accept the retirement package. The employers agreed to this and the employment ended by reason of a consensual agreement by

the applicant's acceptance of the early retirement package and not by resignation. There was therefore no constructive dismissal.

10. It is not necessary for us at this stage to find whether there might have been a fundamental breach by the respondents in relation to their conduct in respect of the disciplinary proceedings and the transfer of the applicant to other employment. That would only be required if we found that there was a resignation by the applicant as a result of those matters. There was, we find, no such resignation. This employment came to an end, we find, as a result of the mutual agreement.

11. It is an exceptional position in Industrial Tribunal cases for a case to be dismissed on the submission of no case to answer. The generally accepted view in Industrial Tribunal cases is that we should hear both sides before we make our decision. This is, however, an exceptional case. Here, of all the issues, with which we are concerned at this stage of the proceedings, are issues which were dealt with by the learned Recorder in the county court proceedings and have therefore already been subjected to judicial consideration which is binding upon this tribunal. The position in this case is, therefore, materially different from that in most cases and is exceptional. On the material before us we have reached the clear conclusion that there was no dismissal in this case, constructive or otherwise, and in those circumstances we uphold the respondent's submission that there is no case to answer on that issue. Accordingly we dismiss the unfair dismissal complaint".

The Employment Appeal Tribunal (where both sides were represented by counsel) held that:

(1) There was insufficient identity between the issues before the County Court and those before the Industrial Tribunal to entitle the latter to regard itself as bound by the findings of the former. In particular the Recorder in the county court was considering an issue as to the legitimacy of the pressure exerted on the employee by the employers for the purposes of an allegation of duress; whereas the tribunal was concerned (applying the Sheffield case) to examine such pressure from the standpoint of an inquiry as to whether it constituted or included a threat of dismissal which was causative of the employee's decision to resign.

(2) The Industrial Tribunal had demonstrated on the face of its reasons that it regarded the issue of dismissal as being concluded by the findings of the county court (thereby erroneously treating the case as one covered by issue estoppel).

The first of those holdings is not now challenged. Mr Sendall for the appellant employers contended in his written submissions that this was a true case of issue estoppel and that the Industrial Tribunal would have been entitled and bound to follow the findings of the judge in the pension dispute proceedings. In his oral submissions I did not however understand him to go so far. Subject to a primary submission which I shall mention shortly, he concentrated his attack on the second holding of the Employment Appeal Tribunal, contending that on a true analysis of the Industrial Tribunal's reasons there was no foundation for it. That submission lies at the heart of this appeal.

The judgement of the Employment Appeal Tribunal was delivered by Mr Justice Lindsey. He first referred to the Sheffield decision as involving the proper approach in such cases. Then (making what I have described as the first holding of the appeal tribunal) he accepted the submission that this was not an issue estoppel case. He thereafter continued as follows:

"But how far is the case one in which the Industrial Tribunal can be said to have relied on the county court decision? As to that, Mr Sendall for the County Council emphasises that the Industrial Tribunal did hear evidence from [the employee] and does state at several passages, some of which we have cited, that it relies not only on what it derived from the judgment of the learned recorder, but also from the evidence that it heard.

Even so, we do not feel able to describe the decision of the Industrial Tribunal on this central point as a matter in which they did not rely upon the judgment of the Recorder. They set out at considerable length long passages from the judgment in the County Court, and, one might ask rhetorically, why was that done if it was not to indicate an acceptance of and a reliance upon those passages, and why should they have referred to the previous "judicial consideration which is binding upon this tribunal" had not that truly been their view?

We are forced to the conclusion that the Industrial Tribunal did not come to its own independent decision on the primary question of whether or not there had been a dismissal. It relied to a degree to which it was not entitled upon the previous findings of the county court upon what was, at root, a different point. It is unfortunately one of those cases where the apparent attractions of a short cut led the Industrial Tribunal to take what has turned out to be a long and expensive detour."

THE ARGUMENT ON APPEAL TO THIS COURT

Mr Sendall for the appellant employers firstly made a radical submission which was not (so far as I am aware) raised in either tribunal below, but Mr Sean Jones for the employee (while not accepting it) very fairly and properly did not object to it being raised in this court. The submission is that the Industrial Tribunal would have been justified in any event in rejecting the employee's claim at the outset on the fundamental ground that even on the facts alleged by the employee the threat of dismissal was not the sole inducing factor in his decision to retire. The issue of dismissal by enforced resignation classically arises in a case where the employee is confronted by the employer with two alternatives only - "accept my retirement terms or face dismissal". In the present case the employee had three alternatives to choose from - retirement, remaining in employment at the Cardiff workplace, or dismissal. Given that wide freedom of choice, it would be a legal impossibility, Mr Sendall submits, for any tribunal to fit this case into the mould of enforced retirement under threat of dismissal.

Secondly, and alternatively, Mr Sendall submits that the Employment Appeal Tribunal misconstrued the decision of the Industrial Tribunal. The finding of no case to answer was reached after hearing the evidence of the employee and reading the contemporaneous correspondence and listening to argument on both sides. That was material on which the Industrial Tribunal was entitled to, and did, form an opinion of its own. The references made to the county court findings are properly to be explained as providing support for their own independent conclusion, not as dictating what their conclusion should be.

Mr Sean Jones, for the respondent employee, answers the first submission by refuting the premise that the principle of dismissal by enforced resignation requires the threat of dismissal to stand alone; and the second by saying that the Employment Appeal Tribunal was correct, both in the interpretation which it placed on the Industrial Tribunal's decision and in concluding that by applying blindly the findings of the County Court the Industrial Tribunal had disabled itself from conducting a proper inquiry into the enforced retirement issue.

CONCLUSION

I would reject Mr Sendall's first submission. The concept of dismissal by enforced resignation is too valuable and too flexible to be constrained by such preconditions as a requirement that a threat of dismissal must be the sole factor inducing the resignation. The existence in this case of the third option - returning to take up the post at Cardiff - may well have made it more difficult for the employee to claim that his resignation was induced by a threat of dismissal, but it would have been wrong to treat it as decisive against all possibility of the termination being treated as a dismissal. The Industrial Tribunal was right in my view to deal with the dismissal issue upon its merits; and not to treat it as unarguable - merely on the ground that an option alternative to retirement and dismissal was potentially in play.

Turning to the main issue in the appeal, it was - I would accept - most unfortunate that the Chairman when framing the reasons for the Industrial Tribunal's decision adopted the terminology that he did when referring to the findings of the judge in the pension dispute proceedings. It rendered the view of the Employment Appeal Tribunal thoroughly understandable. But was it a correct view?

The guiding principle, when it comes to construing the reasons of an Industrial Tribunal at an appellate level, must be that if the tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law.

In the present case the Industrial Tribunal had correctly directed itself in law by citing the limitations of issue estoppel. It had demonstrated an awareness of the issues raised in the pension dispute on the one hand and the unfair dismissal claim on the other, and had noted the differences between them. It had reached a conclusion expressed to be a finding of its own, and had done so after independent consideration of the relevant correspondence between the parties and after hearing the oral evidence of the employee and argument on both sides. Is there any explanation, save error of law, for its emphasis upon, and subservient references to, the findings of the county court? In my view there is. It lies in the fact that the Industrial Tribunal was dealing, unusually in their jurisdiction, with a submission of no case to answer. The general guidance in the authorities cautions (as the tribunal itself observed) against adopting such a procedure in the tribunals. It would be natural therefore for the Industrial Tribunal, before deciding whether in its discretion to entertain a submission of no case, to see if there were any exceptional circumstances justifying a departure from the normally accepted practice. The fact that another court, in another jurisdiction, and for analogous but different purposes, had reviewed the same evidence and reached a conclusion which coincided with their own independent impression could properly be regarded as providing such circumstances. When the decision is read as a whole with that consideration in mind, the misuse of language involved in applying the term "binding" to the antecedent findings of the county court can reasonably be explained, in my judgment, as an attempt on the tribunal's part to indicate that it was looking to those findings - not for guidance as to what their own decision should be, but rather as providing justification for acting summarily on their own independently formed conclusion through acceptance of a submission of no case to answer. It is preferable, in my view, and more in tune with the traditional approach to the construction of a tribunal's decision, that their reasoning should be construed benevolently in that way. The alternative interpretation would involve imputing to the Industrial Tribunal what would amount - given the correct direction they had stated for themselves in law - to a major error, namely a misplaced application of the principle of res judicata. This is, in short, a case of sound reasoning poorly expressed. The decision of the Industrial Tribunal should on that basis be upheld.

I would accordingly allow the appeal and restore the order of the Industrial Tribunal.

MR JUSTICE McCULLOUGH: I agree, but have one reservation. I am less than convinced that the references by the Industrial Tribunal to the findings in the County Court proceedings can be explained on the basis that the Industrial Tribunal was deciding whether or not to entertain a submission of no case. I am, however, persuaded that, despite the number of such references and the emphasis it placed on them, the Industrial Tribunal did reach its own conclusions on the oral and documentary evidence before it. It is, in my judgment, unrealistic to think that, had there been no proceedings in the County Court, the decision of the Industrial Tribunal would have been other that it was.

LORD JUSTICE KENNEDY: I agree with the judgment of Waite L.J., and there is nothing that I wish to add.

Order: Appeal allowed with costs.