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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Whittaker v The Acorn Mill Co Ltd [1995] UKEAT 1081_93_0802 (8 February 1995) URL: http://www.bailii.org/uk/cases/UKEAT/1995/1081_93_0802.html Cite as: [1995] UKEAT 1081_93_802, [1995] UKEAT 1081_93_0802

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BAILII case number: [1995] UKEAT 1081_93_0802

Appeal No. EAT/1081/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 February 1995

Before

HIS HONOUR JUDGE D M LEVY QC

MRS M L BOYLE

MR K YOUNG CBE

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MR F WHITTAKER          APPELLANT

THE ACORN MILL CO LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR H R VINCENT

Solicitor

Oldham Law Centre

Prudential Buildings

79 Union Street

Oldham

OL1 1HL

For the Respondents MR J ECKERSALL

Director

The Acorn Mill Co Ltd

Mellor Street

Lees

Oldham

OL4 3DA


 


JUDGE LEVY QC: Mr Fred Whittaker was in the employ of The Acorn Mill Co Ltd ("the Company") in Manchester. The Company is a small Company consisting of a father and son who are directors, two weavers, two pickers and a labourer. Mr Whittaker had been in the Company's employ since 1974.

A time came when the Company had to reduce its staff. In anticipation of redundancies taking place, Mr Whittaker, whose only aim was to keep his job, consulted solicitors. On their advice he wrote two letters to the Company to which Mr Vincent, who appeared for the Company both below and here, referred in the course of his argument.

One is dated 21 August 1992, by which Mr Whittaker gave notice to the Respondent, under the provisions of Section 88 of the Employment Protection (Consolidation) Act 1978 ("the Act"). He intended to claim a redundancy payment in respect of the lay-off which the Company had intimated.

The second was a letter dated 11 September 1992, in which Mr Whittaker said that he understood the provisions of Section 88 of the 1978 Act to entitle him to a redundancy payment in pursuance of a notice contained in the earlier letter to terminate his contract, and he went on to ask the Company to accept his notice to the Company that he terminated his contract with effect from the end of 18 September 1992.

The letter went on to give calculations of redundancy pay to which Mr Whittaker claimed entitlement and we understand that certain sums were paid to him as a result of that.

On 7 December 1992 Mr Whittaker commenced proceedings in the Industrial Tribunal where his notice of application shows he sought reinstatement. He wanted to be able to earn money.

The employers put in a Notice of Appearance on 19 January 1993. There was a hearing before the Industrial Tribunal at Manchester on 27 September 1993. The Tribunal sent its decision to the parties on 10 November 1993. The unanimous decision of the Tribunal was that Mr Whittaker had not been dismissed pursuant to Section 55 of the the 1978 Act.

Accordingly, his claim for unfair dismissal failed and was dismissed. Effectively, what the Tribunal discovered in the course of the hearing, was something which neither the lawyers who advised Mr Whittaker nor the Company had not discovered earlier, that is that the provisions of Section 88 only apply if there has been a contract which complies with the provisions of Section 87 of the 1978 Act. Effectively, the Industrial Tribunal held that by making a claim under Section 88 and then resigning, Mr Whittaker had resigned from the Company and could not make a claim under Section 55. Mr Vincent who appeared below argued that it was in fact a case of constructive dismissal because of continuing lay-offs by the Company. The Tribunal dealt with that argument then in paragraph 5 of the Full Reasons when they said applications under Section 88:

"On the facts of this case, we do not consider that the Appellant, who having sought legal advice, relied on Section 88 of the Act, can also claim at the same time he was constructively dismissed. We consider that applications alleging constructive dismissal and applications relying upon the said Section 88 must almost always be, and in this case are, mutually exclusive. Accordingly, we do not find that the Appellant was dismissed by the Respondent, rather we find that he terminated his own contract of employment".

Another way of putting what the Tribunal found, and this is something on which Mr Vincent failed to answer in the course of submissions, was that Mr Whittaker, having made application under Section 88, waived his right to complain about constructive dismissal. The more so when he had taken the monies paid to him following the assertion that Section 88 applied.

We are of the opinion that the finding on law in paragraph 5 of the Full Reasons is one that the Tribunal below could reasonably have come to. In these circumstances, it appears to us that this appeal must fail.

We note that further down in the Decision, the Industrial Tribunal found that even if there had been full consultation, the result would have been the same and a finding of unfair dismissal would have led to no award to Mr Whittaker. On the facts of this case we agree that such a conclusion was warranted.

In the circumstances, we propose to dismiss this appeal.