Appeal No.	 EAT/15/96 & 			 EAT/112/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 January 1997

Before
HIS HONOUR JUDGE C SMITH QC
MR K M HACK JP
MR W MORRIS

MR A B BUTLER	APPELLANT

(1) BUCKINGHAMSHIRE COUNTY COUNCIL 
(2) WYCOMBE DISTRICT COUNCIL T/A PRO-LEISURE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C HENNEY
(Solicitor)
Messrs Henmans
Solicitors
116 St Aldates
Oxford
OX1 1HP	
For the Respondents	MISS J EADY
(of Counsel)
Legal Services Dept
Bucks County Council
County Hall
Aylesbury
Bucks
HP20 1UA	

	JUDGE C SMITH QC:	This is an appeal by Mr Anthony Butler against the decision of an Industrial Tribunal sitting at Reading on 30 and 31 October 1995, of which Extended Reasons were sent to the parties on 17 November 1995, when the Industrial Tribunal decided that the Appellant was not dismissed and that accordingly his application for reinstatement and/or compensation for unfair dismissal against the Buckinghamshire County Council, the First Respondent and against the Second Respondents, Wycome District Council, T/A Pro-Leisure, failed.

	We should say straight away that Mr Butler also appeals in relation to the apparent decision of the Industrial Tribunal, dismissing his claim under The Equal Pay Act, but we have not had time to deal with that matter today.  It is to be adjourned and we say absolutely no more about it.  We confine our consideration to the appeal against the finding relating to the complaint of unfair dismissal.

	As appears from the findings of the Industrial Tribunal, the Appellant had been employed for 19 years as a Swimming Teacher at the Wycombe Sports Centre, certainly in recent years.  Until the events of 1994 he was employed by the County Council, the First Respondents.  The Industrial Tribunal record that everything was harmonious until 1993 when there was, according to the Industrial Tribunal’s findings, a breakdown in relationships between the Appellant and a new young manager at the Leisure Centre.  According to the finding of the Industrial Tribunal this dispute was resolved following a meeting between the County Council and Pro-Leisure, a leisure arm of the Second Respondents, on 14 March 1994.

	There followed, as appears from the Industrial Tribunal decision and is not in dispute between the parties, a decision by the County Council to transfer the provision of swimming instruction services to local schools at Wycombe Sports Centre from the First Respondents to the Second Respondents by their leisure arm, trading as Pro-Leisure.  It is common ground that The Transfer of Undertakings (Protection of Employment) Regulations 1981 (“TUPE”) would apply to this transfer and the Industrial Tribunal found, in paragraph 6 of its decision, that Mrs Neill, the Officer in the County Council’s Area Education Office dealing with the matter, informed the Second Respondents, t/a Pro-Leisure, that TUPE would apply and that the effect would be that the Appellant’s contract of employment would be protected under the Regulations and become the responsibility of the Second Respondents on transfer under Regulation 5 of TUPE.  According to the findings of the Industrial Tribunal Pro-Leisure accepted this advice.

	However, although the provision of swimming pool services to local schools was certainly transferred to Pro-Leisure by about September 1994, it appears from their findings of the Industrial Tribunal that by that time the Appellant’s Contract of Employment had come to an end.  It was the Appellant’s case before the Industrial Tribunal that he had been unfairly forced into redundancy by the County Council and thereby unfairly dismissed, whereas it was the County Council’s case, based upon the evidence of Mrs Neill, that the Appellant, because he did not wish, in any circumstances, to be employed by Pro-Leisure, had voluntarily opted for a redundancy payment which the County Council had accepted with the result that there was a consensual termination of his employment.

	The Industrial Tribunal considered the evidence before it, particularly at paragraphs 7 to 10 inclusive of its decision.  It accepted Mrs Neill’s account of what had taken place between her and the Appellant at the meeting on 27 June 1994, as set out in paragraph 7, finding it to be corroborated to an extent by the letter she had sent to UNISON dated 28 June 1994 (page 32).  The Industrial Tribunal then dealt with the exchange of correspondence at pages 32A and 33 and found that it was the Appellant who had raised the option of agreed redundancy with Mr Bridge and that it was the Appellant who had thereby opted for redundancy, so that they found in paragraphs 11 and 12 that he had not been dismissed.  They expressed themselves in this way in paragraphs 11 and 12:

“11  We accepted Mr Neill’s version as to what happened at the meeting with Mr Butler on 27 June.  She did not offer him a redundancy payment.  When he expressed his antipathetic view to the management of Pro-Leisure, she was prepared to discuss the possibility of a redundancy payment.  It is clear that Mr Butler’s contract of employment came to an end.  In our view, it came to an end because he voluntarily opted for a redundancy payment and the respondents agreed to the payment.  He was not dismissed.
12 (a)  Pro-Leisure took over the provision of swimming services at the Sports Centre in September 1994.  No doubt Mrs Neill’s view was correct that TUPE will have applied to preserve the contracts of any person employed by the County Council at that time.  That matter had been discussed between Pro-Leisure and the Area Education Office in April and May and agreement had been reached by the time of Mrs Neill’s letter of 7 June (paragraph 4 above).  Mr Butler had a strong objection to working with the management of Pro-Leisure, so Mrs Neill put the possibility of redundancy as an option for his consideration.  She did no more than that.  The meeting between them did not constitute a formal enough situation to bring into operation the provision and Regulation 5 of TUPE.  It was only a preliminary meeting.
(b)  Mr Butler was not dismissed and his application fails.”

	In a very powerful submission made to us on behalf of the Appellant, Mr Henney submitted that the decision by the Industrial Tribunal that this was not a dismissal was a perverse decision.  In particular, he drew attention to the way in which the Appellant had put the matter in his letter to the County Council at page 32(A) of the bundle, expressly stating therein that he had been offered redundancy and had been required to accept it.  It was submitted that at no stage during the subsequent correspondence did the County Council suggest that he had misinterpreted the position.  Reliance was then placed particularly on the letter at page 35 from Mrs Neill, which advises the Appellant that his post would be redundant and gives him formal notice of the termination of his employment with the County Council.  Later on in the letter Mrs Neill speaks of regretting “that it has proved necessary to effect this redundancy”.  Mr Henney also relies upon the exchange of letters at pages 37 and 39 between the Appellant and the Council, upon the internal documents recording the Appellant’s reason for leaving the employment of the County Council as redundancy, and on the entries on the UB 85 form where the County Council state that the employment ended by compulsory redundancy.  It was the submission of Mr Henney that for the Industrial Tribunal to have concluded against that documentary evidence that there was no dismissal was a perverse finding and he submitted was not “a permissible option”.

	Miss Eady, on the other hand, submitted on behalf of the County Council, that the Industrial Tribunal were justified in concluding, as they did, on the evidence of Mrs Neill, which they accepted, that despite the label of redundancy being placed on the documentation, the industrial relations’ reality of what had taken place was that there was a consensual termination and hence no dismissal.

	Miss Eady analysed the decision of the Industrial Tribunal as follows.  First of all, she submitted it was common ground and found by the Industrial Tribunal that TUPE applied, and that both the County Council as transferor and Pro-Leisure as transferee accepted that and that accordingly the Appellant’s position would be protected by operation of law.  She submitted it follows from that that there was, in fact, no redundancy position since it was apparent that the need for Swimming Instructors would continue after the transfer.  She went on to submit that the Industrial Tribunal expressly found that the Appellant did not want to be transferred to Pro-Leisure, thus they found in paragraph 7 of the decision, as she pointed out, that when the effects of TUPE were explained to him his response, according to the findings of the Industrial Tribunal, could be summarised as being “over my dead body”.  In those circumstances Miss Eady submitted, that by necessary implication, the factual matrix against which the Industrial Tribunal’s decision was made, was that the Appellant had three alternatives, namely:

(1)  to transfer to Pro-Leisure with all his rights protected by operation of law under TUPE; or

(2) to object, under Regulation 5 (4A) of TUPE and consequently lose all his contractual rights on the transfer in consequence of Regulation 5(4B); or 

(3)  to reach terms with the County Council by way of a consensual termination of his employment.

	Miss Eady pointed out that it was strictly a matter of indifference to the County Council which option the Appellant took.  In those circumstances, she submitted, it was open to the Industrial Tribunal to find that it was in reality the Appellant who had opted for a redundancy payment, which was in reality a severance payment, under which he obtained a 27½ weeks’ redundancy payment, more than his statutory entitlement, together with his 12 weeks’ contractual notice entitlement.

	She submitted that, although the documentary evidence relied upon by Mr Henney was powerful evidence in favour of the contention that there had been a dismissal, it could not possibly be said that there was no evidence upon which the Industrial Tribunal could reach the opposite conclusion.  She pointed out that Mrs Neill’s oral evidence before the Industrial Tribunal went directly to that issue and, in any event, there had never been any acceptance on the documents by the County Council that they had dismissed the Appellant.

	We have not found this a straightforward case.  At the end of the day, we have reminded ourselves of the classic passage in Piggott Brothers v Jackson [1991] IRLR 309 at 312 relating to perversity.  Thus, Lord Denning said:

“It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion.  What matters is whether the decision under appeal was a permissible option.  To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal.”

	In our judgment, this statement of principle is the one that we must follow and is decisive of the present appeal.  We cannot say here, despite the advocacy of Mr Henney, that there was no evidence upon which the Industrial Tribunal could find that this was not a dismissal.  There was such evidence, namely the oral testimony of Mrs Neill.  The fact that there was documentary evidence strongly supporting the opposite conclusion cannot be decisive on what, at the end of the day, was a question of fact for the Industrial Tribunal, as an industrial jury, to decide.  They had all the documents now relied upon by Mr Henney, on behalf of the Appellant, in front of them, and must therefore have taken them into account in arriving at their conclusion.

	In those circumstances, although we may very well have reached a different conclusion, we cannot hold that the Industrial Tribunal’s decision was not “a permissible option” in holding that there was no dismissal here.  Accordingly, this appeal must be dismissed.