THE INDUSTRIAL TRIBUNALS
CASE REF:	1777/16	
	
CLAIMANT:			Colin Johnston

RESPONDENT:                 Nicholson & Bass Limited

DECISION
The unanimous decision of the tribunal is as follows:-

1.	The claimant’s claim of unfair dismissal was brought within the statutory time limit and the tribunal therefore has jurisdiction to hear the claim.

2.	The claimant was not dismissed by the respondent and his claim of unfair dismissal is therefore dismissed in its entirety.

3.	The claimant’s claim in respect of holiday pay is dismissed. 

Constitution of Tribunal:

Employment Judge:	Employment Judge Turkington 

Members:			Mr A Carlin
Mr H McConnell

Appearances:

The claimant appeared at the hearing and represented himself.

The respondent appeared at the hearing and was represented by Mr R Fee, Barrister-at-Law, instructed by Stewarts, solicitors, as agent for the British Printing Industries Federation.

The Claims 

1.	The claims were, firstly, a claim for unfair dismissal and secondly, a claim for holiday pay.

The Issues

2.	The issues to be determined by the tribunal were as follows:-
 
(a)	The tribunal had to determine the effective date of termination of the claimant’s employment.  The parties contended that the date of termination was either 29 April 2016, in which case the claim was out of time subject to any extension of time, or 5 May 2016, in which case the claim was in time.
 
(b)	The claimant accepted that a letter of resignation had been submitted to the respondent on his behalf and with his authority.  The tribunal had to determine whether this was in fact a forced resignation such that it should be treated as a dismissal by the respondent.

(c)	If the tribunal found that the claimant was dismissed, the tribunal would have to determine whether the dismissal of the claimant was automatically unfair due to non-completion of the statutory dismissal procedure or whether the dismissal was unfair on ordinary principles.
 
(d)	In relation to remedy, the claimant confirmed at the hearing that he sought compensation only.  In the event that the tribunal found the claimant had been unfairly dismissed, the tribunal would be required to determine the amount of compensation payable to the claimant.

(e)	The tribunal had to determine whether the claimant was owed £360.00 for holiday pay. 

CONTENTIONS OF THE PARTIES

3.	The tribunal commended the claimant for the very articulate and clear manner in which he presented his case at the hearing.  In respect of the effective date of termination, the claimant argued that this was 5 May 2016 in line with the date set out in his P45 and therefore, the claim which was lodged on 4 August 2016, was in time.  The claimant’s case was that he had resigned as he felt he had been given an ultimatum by the respondent and had no choice other than to resign.  He argued that this was essentially a forced resignation and therefore should be properly considered a dismissal by his employer.  The claimant made the case that the respondent had seized an opportunity to force the claimant out of his job very shortly before there were significant redundancies among the respondent’s workforce.  He argued that it was very convenient for the respondent that the employment of the claimant, who had 22 years of service, was terminated before those redundancies took place. 
 
4.	In respect of holiday pay, the claimant’s case was that the respondent had agreed to pay him one week’s holiday pay and this remained unpaid.  The claimant clarified that this claim did not relate to holidays due to him under the Working Time Regulations or under his contract of employment, but rather under the agreement reached in relation to the termination of his employment. 

5.	Counsel for the respondent argued that the effective date of termination of the claimant’s employment was 29 April, which was the date on the letter of resignation, and the claim was therefore out of time.  In respect of the claim for unfair dismissal, Counsel contended that the claimant had resigned and that there was no need for the tribunal to look behind this.  The claimant had taken matters out of the hands of the respondent by resigning and that the criticisms the claimant was seeking to make of the procedure followed by the respondent were not relevant due to that resignation.  The respondent’s counsel relied on the evidence given by the claimant’s then trade union representative as showing that the respondent had not, in fact, put the claimant under pressure to resign.  Counsel contended that there was no basis in law for the claimant to seek to go back on his resignation. 

6.	In relation to holiday pay, the respondent denied that any sum was due to the claimant for holiday pay.  The respondent’s position was that the claimant had received all sums due to him. 

SOURCES OF EVIDENCE 

7.   	The tribunal heard oral evidence from the claimant on his own behalf and from Sean Smyth, Regional Industrial Officer of Unite, on behalf of the claimant.  The claimant also submitted a short written statement from Scott Bradshaw who was not required by the respondent to attend the hearing to be cross examined.  Eunan Donnelly and Jonathan Megarry gave evidence on behalf of the respondent.  The parties also referred the tribunal to a number of documents in the tribunal bundle.
      
FACTS OF THE CASE

8.	Having read the witness statements of the witnesses and heard the oral evidence given by all the witnesses at the hearing and considered all the documents referred to in evidence, the tribunal found the following relevant facts:-

9.	The claimant’s employment with the respondent began on 1 August 1993.  The claimant was a material handler/driver and he earned £350.00 per week gross, £290.00 per week net.  The claimant had a clean disciplinary record.  The respondent is a printing company.  Around April 2016, the respondent had 51 employees.  By the time of the tribunal hearing, the respondent had only 26 staff.  

10.	The respondent’s employees, including the claimant, were paid weekly in arrears on a Friday with the payroll being run on a Wednesday.
  
11.	An incident involving the claimant took place at the respondent’s premises on 
12 April 2016.  This led to the claimant being suspended by the respondent’s Production Director Brian Gillespie.  A disciplinary procedure was then commenced in relation to the claimant.  

12.	On 14 April 2016 the claimant received a letter dated 12 April inviting him to an investigatory meeting with Eunan Donnelly the respondent’s Financial Controller.   After being postponed, this meeting took place on 20 April 2016.  The claimant was accompanied by Davey Anderson, workplace representative of Unite and a note taker was also present.  Before the meeting, the claimant had received a written statement made by Brian Gillespie.   Eunan Donnelly asked the claimant to give his version of events.  

13.	At the end of this meeting, Davey Anderson handed in a letter dated 20 April written by him in support of the claimant.  The letter concluded as follows:-

“… I would appeal to you on behalf of Colin – who has an unblemished disciplinary record – and the entire Nicholson & Bass shop floor to show leniency towards him…….”

14.	This letter, or at least the import of it, was drawn to the attention of Jonathan Megarry, Managing Director of the respondent by Eunan Donnelly.  The directors of the respondent had some concerns about the potential for industrial unrest arising out of Davey Anderson’s appeal for leniency and his reference to the entire shop floor of the respondent. 
 
15.	At this stage, the respondent’s intention was that the investigation and disciplinary hearing would be conducted by Eunan Donnelly and that any appeal would be heard by Jonathan Megarry. 

16.	On or about 26 April 2016, the Unite full-time official Sean Smyth attended the respondent’s premises for a meeting which he understood was about redundancies and/or changes to the respondent’s sick pay scheme.  Sean Smyth was met at the door by Brian Gillespie who said that there were problems for one of Mr Smyth’s members, namely the claimant.  The letter from Davey Anderson was also discussed.  

17.	There was some dispute at the hearing about what exactly transpired at this meeting.  In his evidence, the claimant said that Sean Smyth told him later that day that the directors wanted him out of the company.  The claimant’s evidence was that Mr Smyth told him that he could resign and say that he needed to look after his partner who was ill.  The claimant further alleged that Sean Smyth told him that Mr Megarry, who would be presiding over any appeal, would be upholding a dismissal.

18.	In his evidence, which formed part of the claimant’s case, Sean Smyth maintained that during his meeting with the company’s directors on 26 April 2016, Brian Gillespie had said that the matters involving the claimant were serious and, unless he had a good explanation, he (the claimant) was looking at dismissal.  Sean Smyth’s evidence was that, following this meeting, he had advised the claimant that, essentially, he had 2 choices.  If he had a reasonable explanation in respect of the disciplinary allegations, then he could contest the disciplinary procedure.  If he had not, then it might be better for the claimant to resign and protect any future employment.  

19.	Jonathan Megarry’s evidence to the tribunal was that he told Sean Smyth that the claimant would be dismissed if found guilty.  

20.	Having heard the evidence of the relevant witnesses and particularly those who were present at this meeting, that is Sean Smyth and Jonathan Megarry, the tribunal has concluded that the directors of the respondent certainly made clear to Sean Smyth that the claimant was in serious difficulties.  The tribunal is also in no doubt that this message was relayed to the claimant along with Sean Smyth’s own advice to the claimant regarding his options.  However, the tribunal could not be satisfied on the balance of probabilities that the respondent, through its directors, had gone as far as suggested by the claimant, that is that the directors had made clear that he would definitely be dismissed.  

21.	Following the investigatory meeting on 20 April 2016, Eunan Donnelly took no further steps to progress the investigation nor was any disciplinary hearing convened.  

22.	After the meeting between the directors and Sean Smyth on 26 April 2016, Sean Smyth advised the claimant regarding his options.  There was some discussion between the respondent and Mr Smyth about the terms of a “deal”.  It was not clear to the tribunal whether this proposed deal was initiated by the respondent or by Sean Smyth, the trade union representative.  It was agreed that if the claimant resigned, he would receive a week’s pay, a further week’s holiday pay and a reference from the respondent.  The claimant also asked for confirmation that he would be able to access the respondent’s premises in the course of any future employment and this was agreed by the respondent.  No written record was made by any party of this arrangement.  The claimant was given from 26 April to 4pm on Friday 29 April to consider his position.  

23.	Shortly before 4.00 pm on 29 April, the claimant phoned Sean Smyth and confirmed that he had decided to resign.  The tribunal has no doubt that this was a very difficult time for the claimant and a very difficult decision for him to make after 22 years in the employment of the respondent. 

24.	After Mr Smyth had told the respondent that the claimant wished to resign, the respondent sought a letter of resignation from the claimant.  The claimant’s evidence, which the tribunal accepts, was that the respondent was pressing for a letter of resignation so that “everything could be sorted out for the 5 May”.  The claimant was too upset to write any such letter himself and he therefore asked Davey Anderson to write the letter for him.  On Monday 2 May 2016, Davey Anderson wrote a letter of resignation which was dated 29 April and this was given to the respondent with the authority of the claimant.  The claimant’s P45 was then prepared by Eunan Donnelly giving the date of termination of his employment as 5 May 2016.

25.	Within a few weeks of the claimant’s resignation letter, a substantial number of further redundancies were announced by the respondent.  At this stage, it is clear that the claimant regretted his resignation and he felt that he should have been entitled to a redundancy payment from the respondent.  The claimant wrote a letter of complaint to his Union.  He made no contact with the respondent whatsoever during the period following the termination of his employment until this claim was lodged on 4 August 2016. 

26. 	After the termination of his employment, the claimant decided to become a full time carer for his partner.  He did not therefore make any applications for alternative employment.  From May 2016 to the date of hearing, the claimant was in receipt of Carers Allowance and Income Support. 

STATEMENT OF LAW

27.	By Article 118 of the Employment Rights (Northern Ireland) Order 1996, employers and employees are required to give a minimum period of notice to terminate a contract of employment.  However, by article 118(3) of the Order, “this Article does not prevent either party from waiving his right to notice on any occasion or from accepting a payment in lieu of notice”. 

28.	There was a dispute in this case as to whether the claimant had been dismissed by the respondent.  In such a case, the burden of proof rests with the claimant to satisfy the tribunal that he was dismissed.  The position is described in Harvey on Industrial Relations and Employment Law (Div D I A para 201) as follows:-

“If the fact of dismissal is disputed, it is for the employee to satisfy the tribunal on this point.  If he fails to do so, he will lose his case.”

29.	In the case of Sheffield v Oxford Controls Company Ltd 1979IRLR 133, the EAT held that it is a principle of law that where an employee resigns because the employer has threatened that if he does not resign he will be dismissed, the mechanics of the resignation do not cause this to be other than a dismissal.  In such a case, the crucial question is one of causation.  The question is whether it was the threat of dismissal which caused the employee to resign.  This was contrasted with the situation where terms of resignation are offered which are satisfactory to the employee so that the threat of dismissal is no longer the operative factor in the employee’s decision to resign.  In such a case, the employee is treated as having resigned rather than been dismissed.

30.	In Jones v Mid Glamorgan County Council 1997 IRLR 685 the Court of Appeal held that there can be a dismissal by way of enforced resignation even though the threat of dismissal is not the sole factor inducing the resignation.

31.	Further, in In Staffordshire County Council v Donovan 1981 IRLS 108, it was held by the EAT that the fact that an employee resigns in the course of disciplinary proceedings does not necessarily entitle the employee thereafter to say that there was a dismissal.  The critical issue is whether the basis of the employee’s resignation was duress and the threat of dismissal.

32.	By Article 3 of the Industrial Tribunals (Extension of Jurisdiction) Order 1994, a claimant may bring a claim before the tribunal for a contractual claim which arises or is outstanding at the effective date of termination of the claimant’s employment. 

CONCLUSIONS

33.	Generally, the tribunal had considerable sympathy with the position the claimant found himself in.  He was a very longstanding employee of the respondent with a clear disciplinary record and appeared to be highly thought of by both his colleagues and senior staff.  It was also clear that he later deeply regretted his decision to resign and the fact that, in his view, he had lost out on a redundancy payment which he believed he would have been entitled to. 

Unfair dismissal claim – jurisdiction of the tribunal

34.	The tribunal had to determine whether the claim was in time or out of time.  In relation to the effective date of termination of the claimant’s employment, the tribunal noted that, whilst the letter of resignation is dated 29 April 2016, it was not actually written by Davey Anderson on behalf of the claimant until Monday 2 May.   The letter contains no indication that the claimant was resigning with immediate effect but neither is any other date of termination mentioned.  The claimant’s evidence, which the tribunal accepted, was that the respondent was pressing for the letter of resignation so that “everything could be sorted out for the 5 May”.  The date of termination was given by Eunan Donnelly in the claimant’s P45 as 5 May.  In his written statement, Eunan Donnelly said that he was clear that the leaving date was 29 April, but when questioned at the hearing, he was unable to give a clear explanation as to why he considered this to be the correct date.  Mr Donnelly accepted that the claimant was paid for 1 week after 29 April. 

35.	By Article 118(3) of the Order, parties to an employment contract are free to waive any period of statutory notice and are, in effect, free to fix a termination date by mutual agreement.  The tribunal has concluded that the preponderance of the evidence points to the parties having agreed that the claimant’s contract of employment would be terminated on 5 May 2016 as set out in the P45. 

36.	Therefore, the tribunal determined that the claim was brought in time and the tribunal accordingly had jurisdiction to hear the claim of unfair dismissal.

Unfair dismissal claim – substantive conclusions

37.	In this case, there was no direct communication between the respondent company and the claimant in the period immediately leading up to his letter of resignation.  The last direct contact was on 20 April 2016 when the claimant attended the investigatory meeting with Eunan Donnelly.  There was no suggestion of any improper threat having been made at this meeting.  

38.	After that, all contact between the respondent company and the claimant was via representatives of his trade union, namely Sean Smyth and Davey Anderson.  The claimant was therefore not able to give direct evidence of what was said by the directors of the respondent.  He could only give evidence of what Sean Smyth reported to him.  

39.	Since the respondent disputed that it had dismissed the claimant, as outlined above, the burden of proof was on the claimant to prove that he had resigned in circumstances which should properly be considered a dismissal by the respondent.  The claimant therefore sought to establish that the respondent had threatened to dismiss him and this was the true reason for his resignation.  On the basis of the evidence it heard, the tribunal was not satisfied on the balance of probabilities, that the respondent had threatened the claimant with dismissal.  Having heard all the evidence, the tribunal found as a fact that the respondent had done no more than to make it clear to the trade union representative that the claimant was in serious difficulties and that dismissal was a real possibility. 
  
40.	The tribunal has no doubt that the claimant felt under severe pressure arising from the situation he found himself in.  However, the tribunal notes that the respondent allowed a period of 3 days for him to consider his position before confirming his decision and he had access to advice from his union at that stage.  The tribunal also thought it was significant that the claimant sought confirmation that he would be permitted to enter the respondent’s premises if he needed to do so in the course of any future employment.  This did not seem to suggest that was resigning only because he felt he had no alternative but to do so, but rather that he was focused on future employment and seeking the best possible terms from the respondent.  On balance, the tribunal is not satisfied on the question of causation that it was any threat made by the respondent which was the cause of the resignation.  The tribunal does not believe that the claimant was under the degree of duress referred to in the cases referred to above which would mean that his resignation was in reality a dismissal. 

41.	Accordingly, the tribunal has concluded that the claimant has not been able to discharge the burden on him to show that he was dismissed by the respondent.  The claim for unfair dismissal therefore fails. 

Holiday pay 

42.	Limited evidence was presented by the claimant in respect of the claim for holiday pay.  In response to questions from the tribunal, the claimant clarified that the basis of this claim was the respondent’s failure to pay the monies due under the agreement reached prior to the termination of his employment.  The claimant contended that the respondent had not paid a week’s holiday as had been agreed.  The respondent denied this.  In the absence of any documentary evidence, particularly in relation to what was actually paid at or shortly after the termination of the claimant’s employment, the tribunal found that the claimant had not proved this element of claim. The claim for holiday pay is therefore dismissed.  

Good practice

43.	In terms of good practice in this area, the tribunal notes and agrees with the conclusion reached by the claimant’s union that it would have been advisable for the claimant’s representative and the respondent to ensure that the agreement reached between them was recorded in writing in the form of a compromise agreement or a conciliated settlement. 

Employment Judge:

Date and place of hearing:  30 May 2017, Belfast.

Date decision recorded in register and issued to parties: