Appeal No.	EAT/1369/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 March 1999

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
DR D GRIEVES CBE
MRS T A MARSLAND

MR G R DWYER	APPELLANT

FORD MOTOR CO. LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR B DRUKER
(Representative)	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Mr Dwyer wishes to make against the unanimous decision of an Employment Tribunal which rejected his complaint of unfair dismissal that he had brought against the Ford Motor Co. Ltd and damages for breach of contract. The conclusion of the tribunal was that Mr Dwyer had resigned and was not unfairly dismissed.

	Mr Dwyer had commenced employment for the Ford Motor Co. Ltd on 19th June 1989. He, allegedly, resigned on 8th February 1996. 

	The Employment Tribunal, over a three day hearing, had the benefit of hearing a number of witnesses on both sides. They directed themselves as to the law, and no complaint is made against the overt directions which are contained in paragraph 7 of the tribunal’s decision. 

	As a result of an apparent refusal, in the eyes of the company at least, of Mr Dwyer to carry out lawful instructions which he had been given, the disciplinary procedure was invoked against him. He attended, with a representative, the initial stage of the process, the decision was that he should be recommended for dismissal. He exercised, as he was entitled to, his right of appeal and remained suspended on full pay. The recommendation to dismiss was not put into effect pending the determination of the appeal. 

	On 8th February 1996 the appeal hearing took place, chaired by the plant manager. Mr Dwyer was represented by a trade union officer. Before the commencement of the appeal that officer asked the chairman to consider what is called “the plea for leniency” which was in the same terms as that initially raised and then withdrawn at an earlier stage in the process. The meeting then adjourned with the employer’s witnesses and presenting officer retiring with the chairman of the panel and Mr Dwyer retiring with all of his trade union representatives, of whom Mr Hart was one. The tribunal then said this:

“It was then subsequently indicated that Mr Hart [a trade union officer] had been instructed by Mr Dwyer that he did not wish the leniency submission to be proceeded with. Therefore Mr Hart indicated he would present the details of the appeal. However, before the details of the appeal could be presented Mr Geoff Harrison [the Plant Convenor] then requested another adjournment.
Mr Dwyer and his representatives left the room. Subsequently, Mr Dwyers representatives came back into the room without Mr Dwyer being present and advised Mr Bright [Departmental Manager - engine assembly plant] that Mr Dwyer wished to resign. Mr Williams indicated [Plant Manager] indicated that if that was what Mr Dwyer wanted to do then he, Mr Williams, would accept Mr Dwyers resignation.
Thereafter Mr Dwyer completed a termination form in which he gave his reasons for resigning as wishing to spend more time with his family.”

	It was the position at the Employment Tribunal that the final appeal procedure was not proceeded with in the light of that resignation. Therefore, Mr Williams never heard the rest of the case and he was not in a position to say whether he would have upheld the recommendation to dismiss or not had further evidence been put forward on Mr Dwyer’s behalf.

	This is the sort of case which raises fine judgments for the fact-finding tribunal. The distinction between a voluntary resignation on the one hand, and one which is induced by threat, fear or duress, on the other, is a fine one and is to be determined by the fact-finding regard having regard to all the relevant circumstances. There is, in this case, the fact that on the one hand Mr Dwyer was being subjected to a disciplinary procedure, where there had been a recommendation that he should be dismissed. On the other hand, this was a case where he appeared not to be willing to accept one possible course which would have saved his employment, as we understand it, which is the operation of the ‘leniency’ procedure, whereby an employee who otherwise would have been dismissed for misconduct is given one final chance, on the basis that if he breaks it he will not then receive the benefit of union representation. There might have been advantages for Mr Dwyer to tender his resignation rather than to have to tell any future employer that his employment had been terminated by the Ford Motor Co. for misconduct. Equally, by resigning in the circumstances in which he did resign in this case, he was giving up his entitlement to monies in lieu of notice if such entitlement existed having regard to the potentiality for dismissal in this case.

	The question as to precisely how he came to make his resignation was an issue which was examined with care by the Employment Tribunal. The tribunal’s conclusion was that this was a voluntary resignation. They say that:

“13	A decision was reached between the Applicant and his representative to tender his resignation on 8 February 1998. This was not a result of collusion on the part of the Respondent and the trade union. If the Applicant felt that he was acting under duress this a matter which was the responsibility of his trade union representatives, if that is what they did to him. Mr Dwyer gave his resignation and was therefore not dismissed by the Respondent. The Tribunal takes the view that this is essentially a matter of causation which has to be considered in the light of the dicta of Arnold J in Sheffield -v- Oxford Controls Company Limited [1979] ICR 396. This was cited with approval by the Court of Appeal in Jones -v- Mid Glamorgan County Council [1997] IRLR 685 when Waite LJ indicated that it was for the Employment Tribunals “applying their expertise, to distinguish between genuinely voluntary resignations and those made in response to a threat. The court rejected an argument that the threat must be the sole factor inducing the resignation.” There was no threat from the Respondent in this case and therefore this was a resignation and not a dismissal.”

The tribunal then went on to say what would have happened if they had reached a different conclusion and indicated that if there had been a dismissal it fell within the range of reasonable responses of an employer and that therefore the dismissal would have been fair.

	In a conspicuously careful and able submission, Mr Druker on behalf of the Citizens Advice Bureau, who have represented Mr Dwyer on this appeal, makes the following submissions. Firstly, the Employment Tribunal misdirected itself in holding that there was a resignation. In the course of making that submission he invited us to say that the Employment Tribunal should have concluded that because there was no financial incentive for Mr Dwyer, it was impossible for the Employment Tribunal to conclude that the resignation was genuinely voluntary. That seems to us to be a misunderstanding, with respect, of the authorities. The whole of the circumstances will be relevant for the Employment Tribunal’s consideration on an issue such as this. The payment of consideration for a resignation is not a necessary prerequisite for a resignation to occur. He also drew our attention to the provisions in relation to ‘contracting out’ in the legislation. It is not possible to contract out of one’s rights. It seems to us, with respect, that that is not a relevant factor in this case. The question was not so much was there an agreement made after the contract had terminated which effectively precluded the tribunal from having jurisdiction; the question which was at issue was whether the contract had come to an end as a result of the employer’s or employee’s initiative.

	Mr Druker then made submissions which found favour with us in relation to the alternative view put forward by the Employment Tribunal in paragraph 14 of their decision. He suggested that the tribunal have applied the incorrect fairness test, that the tribunal should have taken into account the breach of natural justice when the chairman of the final appeal panel retired with the ‘prosecution and their witnesses’. But it seems to us that none of those submissions has any bearing on the principal matter at issue and does not make what was an acceptable decision of an Employment Tribunal defective. This was an alternative way of putting the case. Whether the tribunal were wise to proceed to consider the alternative, is a matter of some doubt. 

	As to wrongful dismissal. Mr Druker drew our attention to the fact that it was unlikely that Mr Dwyer was resigning when he was giving up the benefit of £2,000 of payment in lieu of notice. No doubt that was a factor which was before the Employment Tribunal and they will have given it such weight as they thought fit in deciding this very difficult issue as to whether this was a genuine resignation or one which had been induced by threat. 

	We are not persuaded that there is an arguable point of law on the substantive part of the tribunal’s decision. Accordingly, this appeal must be dismissed.