Appeal No. EAT/0785/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 February 2002

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR J R CROSBY
MS B SWITZER

MRS S GREAVES	APPELLANT

(1) GOVERNING BODY OF NEVILLE’S CROSS PRIMARY SCHOOL
(2) DURHAM COUNTY COUNCIL	RESPONDENTS

Transcript of Proceedings

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	MISS LYDIA SEYMOUR
(of Counsel)
Instructed By:
Miss J Joule
Association of Teachers & Lecturers
Legal Services Dept
7 Northumberland Street
London WC2 5DA	

MR JUSTICE HOLLAND:

1.	This is an appeal from an Employment Tribunal sitting at Newcastle upon Tyne.  The decision of that Tribunal and the supporting extended reasons were sent to the parties on 2 May 2001.  The issue is breach of contract.  The matter arises as follows.

2.	From 1990 the applicant to the Tribunal and the appellant here, Mrs Susan Greaves, was employed by Durham County Council as a teacher at Neville’s Cross Primary School.  Before proceeding further with the chronology it is helpful at this very early stage to draw attention to two features of the terms upon which she was employed, viewing those terms in the broadest sense.  These features have been put before us in the course of excellent submissions by Miss Seymour save to the extent that one such has support in paragraph 24 of the extended reasons, we have not looked further into the origins of the propositions; suffice it to say, we are content to accept them.  The propositions as advanced by Miss Seymour are these; that her client could receive ill-health pension on the basis of incapacity without terminating her employment; and that it was feasible for the appellant, as a person with an ill-health pension to receive, during a period of notice following dismissal, her full salary.  With those two matters to mind we then turn to the chronology.

3.	On 19 April 1999 the appellant went off work due to ill-health.  That ill-health unfortunately persisted so that on 10 April 2000 she was still off work.  At that date her entitlement to income ceased.  She had for a time been on sick pay; however, that arrangement had terminated as at that date.  Realising that her situation was not going to resolve, she made application to the Teachers’ Pension Agency for a pension on grounds of ill health.  There is a finding in paragraph 9 of the extended reasons that she described the application to that Agency as an application for ill health retirement.

4.	On 15 June 2000 the Teachers’ Pension Agency, by way of a letter to the appellant indicated agreement with the payment of such a pension.  There was a copy of that letter sent to Durham County Council.  Unhappily, something went wrong with the post so that the letter did not arrive in the hands of the appellant until the morning of 20 June.  As it happened, on that day, there was a meeting of the Governors of her school and part of the agenda was consideration as to the future of the appellant.  The appellant herself was too sick to attend but in her place there went a member of her union acting on her behalf, Mr Peacock. 

5.	The upshot of the meeting appears in a letter written subsequently to the appellant that is dated 21 June.  That letter is cited in full in paragraph 14 of the extended reasons in these terms:-

“The Committee gave careful consideration to the issues raised in Mrs Bullock’s report and to the points made by Mr Peacock on your behalf they concluded as follows:-

(i)	There was no evidence to suggest that you would be fit to return to work in the foreseeable future.  The fact that you have applied to the Teachers’ Pension Agency for ill-health retirement would seem to confirm this.

(ii)	There is a need to resolve the situation so that the School can plan for the next academic year.

(iii)	As a result the Governors determined, with regret, that your employment with the School should cease.

(iv)	You have a right to appeal against this determination to the Appeals Committee of the Governing Body.  If you wish to exercise this right you must let me know, in writing, within ten days of receipt of this letter.  If you decide not to appeal, details of this determination will be forwarded to the LEA and you will be issued with the appropriate notice to terminate your employment.”

Upon receipt of this letter on 22 June the appellant telephoned the author of the letter to tell him she would not be appealing against the decision of the meeting

6.	On 3 July the appellant received a letter from Durham County Council in these terms:-

“Further to the meeting of the Governing Body on 20 June 2000, and your subsequent decision not to appeal, I have been informed by the Teachers’ Pension Agency that your application for ill-health retirement has been accepted.

In order that I may process your pension as quickly as possible, I should be grateful if you would let me have your resignation in writing from your post at the school as from 11 April 2000.

Once I have this notification I will be able to proceed.”

7.	That got a prompt response from the appellant by way of a letter of 4 July, she wrote in response:-

“With reference to your letter of 3 July 2000, and the letter of dismissal from the School and Governor Support Service from Barry Piercy, 21 June 2000, I agree with the termination date of 11 April 2000.”

That letter in its turn was, in due course, acknowledged by a letter of 18 July:-

“Thank you for notifying me that you wish to resign from your teaching post at Neville’s Cross Primary School.

On behalf of the Education Committee I accept your resignation to take effect on 11th April 2000 and take this opportunity to convey to you an appreciation of the service you have rendered to the cause of Education in the County.

I note with regret that you are leaving on the grounds of ill-health.  Please accept my best wishes for the future.”

8.	The complaint put before the Employment Tribunal was to the following effect.  It was contended by the appellant, then as applicant, that on a proper construction of this history, she was dismissed.  On the basis of that dismissal she was then contending for a breach of contract.  The breach of contract she contended for was the failure to pay to her during a notional period of notice, her full salary.  She indicated by way of complaint that she was prepared to give credit for the sums that she was indeed receiving as from 10 April by way of pension but it was the shortfall between the amount of full salary that she would have received and that pension that was the subject of the complaint.  

9.	In essence, her case was, that the events should have been construed as amounting to a dismissal.  Had there been a dismissal there would have been a period during which she would have received full salary payments in lieu of notice and that it was at the end of that period that her pension should have started pursuant to agreement with the Teachers’ Pension Agency. 

10.	That being the case that was presented we turn to the way in which the Employment Tribunal dealt with it.  In paragraphs 33 and 34 it reminded itself as to the significance of the point in financial terms.  It then went on as follows:-

“35.	The timing of events in this case became critical.  The school governors had determined that the applicant should cease to work at the School before the notification of the pension approval came through.  The LEA were not notified of the governors’ determination and the applicant, instead of putting in an unequivocal resignation simply agreed to a termination date of 11 April.

36.	We, therefore, ask ourselves whether the letter of 21 June 2000 amounted to a summary dismissal.  We conclude that it was not.  The letter made it quite clear that if the applicant did not appeal, the LEA would be informed and they would issue an appropriate notice to terminate the applicant’s employment.  This letter did not terminate the applicant’s appointment summarily.  No reasonable employee would have treated this letter as a summary dismissal.

37.	It was suggested that when the applicant wrote to the Director of Education on 4 July 2000 she was agreeing to be dismissed summarily.  We do not agree.  The letter of 4 July was a response to the Council’s invitation to her to resign so that she could take up her pension with effect from 11 April 2000, being the day after the last day on which she had received remuneration.  The purpose of the letter of 4 July was to indicate to the Council that the applicant had decided to take her pension with effect from 11 April 2000.  The applicant was in effect agreeing that her contract of employment should terminate with effect from that date for that reason.

38.	It was suggested to us that we should look on the letter of 4 July as a forced resignation and to treat it as a dismissal.  It was suggested that the Council were being heavy handed in the sense that they were in a position to hold the applicant to ransom.  It was argued that if she did not agree to resign, they may have declined to dismiss her and left her high and dry without any income.  It seems to us, in this case, that the applicant had a free choice.  She could either agree to retire and take her pension with effect from 11 April 2000 or sit tight and wait until she was dismissed.  She was not put under any pressure by the Council and she was in receipt of union advice throughout.  The applicant, although referring to the decision to dismiss, decided to take her pension with effect from 11 April.  We cannot interpret this any anything other than a decision freely made, to take a retirement pension with effect from 11 April.  We do not, therefore, treat the agreement to terminate the employment as a dismissal.

39.	Our conclusion, therefore, is that the applicant was not dismissed but that the contract of employment came to an end by the applicant deciding to retire on the grounds of ill-health with effect from 11 April 2000.”

11.	Coming to the proceedings before us today, we have a preliminary hearing.  It is for us, as a result of the hearing today, to decide whether the matter should go forward for an adjourned hearing, this time on an inter-partes basis.  The alternative is that we should dismiss this matter now being unable to discern any issue that would be better developed on an inter-partes basis. 

12.	We have had the advantage today of submissions from Miss Seymour indicating why it is, as she says, there are here several arguable issues, all of which either individually or in conjunction would justify an inter-partes hearing.  The points that she makes are as follows.  First she accepts that the Tribunal made a clear negative decision, that is, that there was no dismissal but it failed, she would submit, carefully to construe the events so as to make a positive finding as to how it was that the employment became terminated.  There was no clear finding as to whether this was a resignation or a retirement on ill-health grounds.  There was no proper analysis of the events that have already been set out in this judgment.

13.	For our part, we cannot attach the importance to this criticism.  The issue for the Tribunal was, “yea or nay has the appellant been dismissed?”  It was only if they were able to find that she had been dismissed that the entitlement to the monies that would have been the subject of payment during the period of notice, came into play.  It was not for the Tribunal to go further and seek to make analyses of the situation, save to the extent that to do so would assist them dealing with the main issue.  For our part, we cannot see that it was necessary for them to do so.  It was not necessary for them in effect, as it was put in argument, to give the appellant an opinion as to the legal position.

14.	Turning then to the more specific attack made by Miss Seymour upon the extended reasons, it amounts to the following.  Realistically she appreciates that she cannot attack the finding in paragraph 36.  She accepts that this reflects findings made by the Tribunal which were open to it.  What she has done is focus her fire upon paragraph 38 and, in particular, upon the sentence in paragraph 38 “She could either agree to retire and take her pension with effect from 11 April 2000 or sit tight and wait until she was dismissed.” She submits that this misrepresents the position in that it fails to acknowledge that there was a third alternative.  The third alternative open to the appellant, so submits Miss Seymour, as at 4 July, was to agree to take the pension from 11 April 2000 but to make it clear that she was not resigning as from that date, that she regarded herself still in employment and that she was waiting to be dismissed so that she could take advantage of those terms that follow dismissal which allow for the payment of monies during the period of notice at a full salary rate.

15.	Back to Miss Seymour:  she submits that in that sentence the Employment Tribunal misdirected itself as to law and she suggests that that misdirection impugns the conclusions that are arrived at in paragraph 38.  Were the matter to go to an inter-partes hearing she would be inviting this Tribunal to allow the appeal on that basis and to send the matter back for a reconsideration so that all the facts could be looked at this time with a proper view as to the full legal position that then prevailed.

16.	We have given careful consideration to this submission and to its potential effect.  For our part, we cannot find that the criticism that is made, even if valid, as to the assessment that was made as to the legal position, could in any way impugn the reasoning that is set out in paragraph 38.  The findings by the Tribunal that at the material time the appellant had a free choice, that she was not put under any pressure by the Council and that she was in receipt of union advice throughout cannot, as we understand it, be impugned.  Given that they cannot be impugned, then whether or no the three alternatives were to everybody’s mind, we cannot see any basis upon which the findings by the Tribunal in this paragraph can be impugned as reflecting in any way a misdirection as to law.  Those findings were clearly open to the Tribunal whether they approached the matter on the basis that the appellant had at the material time two options or whether they approached the matter on the basis that she then had three options.  The crux of the matter is that having regard to all the circumstances there was no question of a forced resignation arising through the exchange of letters, that is, the exchange of the letter of 3 July and the letter of 4 July.

17.	Given then that paragraph 36 stands, given then that paragraph 38 stands, given then that there is no real challenge to what is said in paragraph 37, then the finding by this Tribunal that the applicant was not dismissed, cannot, in our judgment, be impugned and there is no issue that we can discern which would justify prolonging this matter, that is, by adjourning this for an inter-partes hearing.  This appeal has to be dismissed.