Appeal No. EAT/498/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 4 June 1992
	Judgment delivered on 22 October 1992

	Before

	HIS HONOUR JUDGE N HAGUE QC

	MR G H WRIGHT MBE

	MRS M E SUNDERLAND JP

BAA Plc	APPELLANTS

MR C QUINTON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Miss A Shropshire
Company Legal Adviser
BAA Plc
Corporate Office
130 Wilton Road
LONDON SW1V 1LQ

For the Respondent	Miss D Rose
(of Counsel)
Messrs Pattinson & Brewer
Solicitors
30 Great James Street
LONDON WC1N 3HA

HIS HONOUR JUDGE HAGUE QC     On 23rd July 1990, Mr Quinton made a claim for unfair dismissal against his former employers BAA Plc.  He alleged that although he had resigned on 8th May 1990, his resignation had been withdrawn with the agreement of BAA on 11th May, but he was shortly afterwards dismissed.  In its Notice of Appearance, BAA alleged that it had not agreed to the withdrawal of Mr Quinton's resignation, so there had been no dismissal.

	  The case was listed before the Industrial Tribunal sitting at London (North) for the hearing as a preliminary issue of the question whether or not Mr Quinton was dismissed.  The Tribunal by its Decision sent to the parties on 17th July 1991 determined that issue in favour of Mr Quinton.  BAA now appeal against that determination.

	The relevant facts of the matter fall within a fairly narrow compass and we summarise them as follows.  Mr Quinton was employed by BAA as a Metering Systems Officer, Band 5.  On his return from holiday on Tuesday 8th May 1990, he was upset as to certain events which had occurred in his absence, and decided to resign.  He obtained a BAA printed form of resignation, filled it in stating that his last day of service would be 29th June 1990, signed it and handed it in.  Mr Wilson (Band 2), Mr Quinton's line manager, was not in the office that day.  Mr Segrott (Band 3) got to hear about Mr Quinton's resignation, sent for him and discussed the matter with him; but Mr Quinton considered that Mr Segrott was not his boss and was reluctant to talk about it with him.  That evening Mr Segrott telephoned Mr Wilson and told him about Mr Quinton's resignation.  The next day, Wednesday 9th May, the resignation form was countersigned by Mr Hogg, a Band 1 officer in charge of Mr Quinton's section.

	Pausing there for the moment, two points arise which we can deal with briefly.  First, in fact Mr Quinton's contract of employment provided for 3 months' notice, and so his last day of service would have been later than 29th June 1990.  But this did not affect the validity of the resignation, and nothing turns on it.  BAA in fact paid Mr Quinton up to the end of the 3-month period.  Secondly, it is clear that Mr Quinton could only withdraw his resignation with BAA's agreement.  This point arose before the National Industrial Relations Court in Harris & Russell Ltd v. Slingsby [1973] IRLR 221 in which Sir Hugh Griffiths said (at para 3),
	"Although it appears there is no direct authority on the point in the case of a master and servant relationship, the Court is satisfied that where one party to the contract gives a notice determining that contract he cannot thereafter unilaterally withdraw the notice.  It will of course always be open to the other party to agree to his withdrawing the notice, but in the absence of agreement the notice must stand and the contract will be terminated upon the effluxion of the period of notice." 
In fact, there was some previous authority to the same effect, in some obiter remarks of Diplock J in Riordan v. War Office [1959] 1 WLR 1046 at p.1054.

	Continuing with the facts, by the morning of Thursday 10th May Mr Quinton had come to regret his resignation, and he telephoned Mr Wilson and said he wanted to rescind it.  In the afternoon of that day Mr Crean, a senior personnel officer, telephoned Mr Quinton to talk about his resignation.  Mr Crean, who did not then know of the conversation with Mr Wilson, told Mr Quinton that it was company policy that a person who resigned should leave straightaway and he would not be allowed to work out his notice.

	The next day, Friday 11th May, Mr Quinton went to his office.  He reported to Mr Hogg (who was Mr Wilson's line manager), who took him to Mr Wilson and then left.  Mr Wilson called in Mr Segrott.  Mr Quinton told Mr Wilson and Mr Segrott that he wished to rescind his resignation, and a discussion took place.  Much of the discussion concerned a proposed re-organisation of the department, and Mr Quinton was asked if he would be willing to work under a certain Mr Inglis (who had been involved in the events which had upset him), to which Mr Quinton replied that he would be.  At the end of the meeting, Mr Wilson and Mr Quinton shook hands.  In their Reasons for Decision the Tribunal state:
	"Mr Wilson did not say in so many words that the rescinding of the resignation was accepted, but the applicant got the clear impression that it was, else why all this talk about re-organisation and working under Mr Inglis?"
Mr Quinton then went to see Mr Hogg, because it appears to have been common ground that Mr Wilson had no authority to accept the rescinding of the resignation (and indeed this was so found by the Tribunal), a matter well known to Mr Quinton.  Mr Hogg did have such authority.

	The Tribunal's findings about the meeting with Mr Wilson and Mr Segrott read as follows:
	We find that Mr Wilson, on Friday 11 May, by his discussion of re-organisation and of working under Mr Inglis purported to accept the rescinding of the resignation."
If this finding had been crucial to the Tribunal's decision, we would not have been able to agree with it.  In our judgment, there was no evidence to support the finding.  The Tribunal, having expressly found that "Mr Wilson did not say in so many words that the rescinding of the resignation was accepted" appears to have relied solely on the discussion of a re-organisation and working under Mr Inglis as a necessary inference of acceptance, but we do not consider that such an inference can properly be drawn.  All Mr Wilson was doing was in effect to inform Mr Quinton that his old job would not be the same and that he would have to work under Mr Inglis, which were obvious factors to be taken into account by Mr Quinton in deciding whether he really wanted to withdraw his resignation or not.

	However, we agree with the Tribunal that the crucial matter is what occurred when Mr Quinton went to see Mr Hogg.  What the Tribunal said about this is as follows:
	"The applicant went back to Mr Hogg.  He told Mr Hogg that Mr Wilson had accepted the rescinding of the resignation and that he would be returning to work after his 31/2 days' leave.  Mr Hogg said: 'Okay, fine'.  In the presence of the applicant Mr Hogg twice tried to get Mr Crean on the phone.  The number was engaged - Mr Hogg said to the applicant: 'I will contact Personnel'"
Later in the day Mr Hogg rang Mr Quinton to tell him to stay at home on the following Monday and there was to be a meeting with Personnel.  On the Monday, 14th May, Mr Crean telephoned Mr Quinton and told him that his resignation stood.  The question before the Tribunal was whether that was too late, in that Mr Hogg had already accepted the rescinding of the resignation.

	In their findings on this question the Tribunal state:
	"Mr Hogg did have authority to accept the rescinding of the resignation, and we find that he did accept it when he said 'Okay, fine', and later 'I will contact Personnel', coupled with his two attempts to telephone Mr Crean there and then."

	Miss Shropshire in her argument on behalf of BAA submitted that what Mr Hogg said and did could not amount to an acceptance of the rescinding of the resignation.  She said that his words and actions were far too vague and lacked the necessary clarity to constitute an acceptance of an offer and thus the making of a contact.  She said the parties were not ad idem, and that what Mr Hogg did was no more than acknowledge what Mr Quinton had said and agree to consider the matter with Personnel.  She also said that the Tribunal's finding was inconsistent with Mr Hogg's phone call to Mr Quinton later the same day.

	We see the force of these submissions, but in our view they raise only questions of fact and not law and so we cannot accept them.  We consider that the words and actions of Mr Hogg (who did not give evidence) as found by the Tribunal were capable in law of constituting an acceptance and of the rescinding of the resignation and that whether or not they in fact did so was essentially a question of fact for the Tribunal.  The Tribunal's finding in that respect contains no error of law and we cannot interfere with it.   

	Miss Shropshire also argued that Mr Hogg's acceptance of the rescinding of the resignation had been based on the misrepresentation to him by Mr Quinton that Mr Wilson had agreed to accept it.  This, she said,  made the contract constituted by Mr Hogg's acceptance voidable, so that BAA was entitled to resile from it which BAA had clearly done in the subsequent telephone calls by Mr Hogg and Mr Crean to Mr Quinton.  We should say at once that it was not suggested that Mr Quinton's misrepresentation was other than innocent.  Even though, as we have found above, Mr Wilson did not accept the rescinding of the resignation, there could be no challenge to the Tribunal's finding that Mr Quinton had got the impression that he had done.

	However, as Miss Rose on behalf of Mr Quinton pointed out, it is well settled law that a misrepresentation does not render a contract voidable unless it induced, or helped to induce, the representee to enter into the contract.  As Mr Hogg was not called as a witness, there was no evidence before the Tribunal on this point.  It is impossible to tell what Mr Hogg would have done if he had known that Mr Wilson did not accept the rescinding of the agreement and there was no evidence to show that he would have acted differently.  This aspect of the matter was simply not investigated before the Tribunal.  In our judgment, Miss Shropshire's argument based on misrepresentation accordingly fails.

	We should also add, for the sake of completeness that Miss Rose also contended that, as the misrepresentation issue had not been raised before the Industrial Tribunal, it could not be raised before us.  In support of that contention, she cited Kumchyk v. Derby County Council [1978] ICR 1116 at pp.1119H and 1123B and McLeod v. Hellyer Bros [1987] IRLR 232  per Ralph Gibson LJ at para 105.  To this, Miss Shropshire riposted that the point only arose as a result of the Tribunal's findings and that it had not been possible to raise it earlier.  In view of our findings above, we do not consider it necessary to express any view on this issue.  Miss Rose also based an argument on S.2(2) Misrepresentation Act 1967.  We doubt if that section is applicable to an Industrial Tribunal, but it is not necessary for us to express any considered view.  Miss Rose further argued that the subsequent telephone conversations of Mr Hogg and Mr Crean were insufficient to amount to an avoidance of the agreement for misrepresentation.  We find this a somewhat legalistic and unrealistic argument, but again it is unnecessary for us to express any concluded view on it.

	In the result, BAA's appeal fails and must be dismissed.