Appeal No.	 EAT/270/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 November 1997

Before
HIS HONOUR JUDGE B HARGROVE QC
MR R JACKSON
MR K M YOUNG CBE

MR J HEATON	APPELLANT

COLAS LTD & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS JOANNE HEAL
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

	JUDGE B HARGROVE QC:     This is a preliminary hearing arising from a decision of an Industrial Tribunal of 31 December 1996.  

	The point at issue was whether Mr Heaton had agreed to leave or whether he was dismissed.  It has been urged, and very effectively urged, (if I may say so) on behalf of Mr Heaton, that there are matters which one would expect to find in the decision if in fact they had been considered.

	The first is that the IT3, which was answered by the employer: “Was the Applicant dismissed”? - and the answer was “Yes.  The reason for dismissal was redundancy”.  That was not dealt with in any passage by the Tribunal.

	The second problem arises from a letter which apparently was before the Tribunal in which the employers were replying to enquiries by legal representatives of the employee and the passage in that letter reads:

“The written reasons for Mr Heaton’s dismissal were given to him in our letters of 5 March and 29 March 1996.”

	What is said is that this is a perversity case, because the absence of those matters from the Reasons is such that would make any Tribunal say that this must be a wrong decision.  It is not a case in which it is alleged that there was no evidence upon which the Tribunal could have reached the decision it did.  Two passages from the Reasons are helpfully illustrative:

“26  We accept Mr Wyatt’s evidence as to the existence of an agreement on the ground that it was well substantiated by the evidence of Mr Clift, Mr Franklin and Mr Mann as to their understanding of the situation and Mr Heaton’s acquiescence in that understanding, ‘not only by his non-denial but also by his positive contribution to Mr Mann’s understand in his frequent conversations about the future.  Also the conduct of both parties clearly points to an agreement, particularly that of Mr Heaton.”

	At paragraph 30 the Tribunal is even more definite:

“30.  On the balance of probabilities we find that there was an agreement as stated by Mr Wyatt, and that this agreement was sufficiently referred to at the meeting of 2 October 1995 without denial by Mr Heaton to give Mr Clift and Mr Franklin to understand that Mr Heaton had agreed to leave at the end of March.  We are satisfied that the anticipated departure was discussed on several occasions by Mr Heaton and Mr Mann.  We therefore find that the reason for Mr Heaton’s departure was that he agreed to leave at the end of March because of a redundancy situation arising out of the diminution of a business in the Birmingham/Wirral/Cwmbran area.” 

	And the final findings at paragraph 32:

“(i)  termination was by agreement
(ii)  the reason for termination was redundancy.”

	Looking at those matters, it is impossible to say that this is one of those cases where an appellate tribunal would be forced to the view that the tribunal below was plainly wrong.

	In our view, there is no case here for a perversity argument and this appeal fails and is dismissed.