[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sandhu v Jan De Rijk Transport [2006] UKEAT 0451_05_0704 (7 April 2006) URL: http://www.bailii.org/uk/cases/UKEAT/2006/0451_05_0704.html Cite as: [2006] UKEAT 0451_05_0704, [2006] UKEAT 451_5_704

[New search] [Printable RTF version] [Help]

APPEARANCES

 

For the Appellant

MR SIMON J BROWN (Of Counsel) Instructed by: Amanda Capon Solicitors 1801 Bridge Road Sarisbury Green Southampton Hampshire SO31 7EH

For the Respondent

MR IAN REES (Solicitor) Instructed by: Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB

SUMMARY

11AA and 8EE

Unfair Dismissal – dismissal/ambiguous resignation

Practice and Procedure – admissibility of evidence

Appellant called to disciplinary meeting and told that he would be dismissed for misconduct. He negotiated a retirement package and left on its terms. The Tribunal found that he had left voluntarily and was not dismissed.

Held 1) that the Tribunal ere entitled ,having asked the correct question – which caused him to leave – to find that he had left because of the package; 2) that the Tribunal were entitled to exclude evidence as to whether the Appellant was or was not guilty of misconduct.


 


HIS HONOUR JUDGE J BURKE QC

The appeal

1. This is an appeal against the judgment of the Employment Tribunal sitting at Reading, chaired by Mrs Hill sitting with Mrs Watts-Davies and Mrs Grugeon, and sent to the parties with written reasons on 16 February 2005. By that judgment the claim of the employee, Mr Sandhu, that he had been unfairly dismissed by his employers, Jan de Rijk Transport Ltd, was dismissed. The Tribunal concluded that the employers had not dismissed Mr Sandhu but that the contract of employment between them had been brought to an end by mutual consent. Mr Sandhu now challenges that conclusion. He has been represented before by Mr Simon J Brown, of counsel; the employers have been represented by Mr Reese of Peninsula Business Services. We are grateful to both for their able submissions.

The facts and the Tribunal's conclusions

2. Mr Sandhu was employed as the operations manager of the employers, based at their London office. The employers are the UK arm of the international hauliers whose lorries are a familiar sight on our motorways; the parent is a Dutch organization whose headquarters are in Roosendaal, Holland.
3. Because there were insufficient employee drivers to drive the employer's lorries it was necessary to use agency drivers; the employers were concerned about the high level of expenditure on agency drivers in the U.K. Their case was that this had been raised with Mr Sandhu at monthly meetings; Mr Sandhu denied this. The Tribunal did not seek to make a finding as to that conflict. There was no dispute that Mr Sandhu was called to an urgent meeting in Holland on 6 December 2002 and that, by the end of that meeting, Mr Sandhu was to cease working for the employer's on 9 December 2002 and his contract of employment was to end on 31 March 2003.
4. It was clear from the parties' pleadings, i.e. the Originating Application and Response, that there was an issue between them as to what happened in the course of that meeting and as to how it came about that the contract of employment was to come to an end. The judgment of the Tribunal records, at paragraph 4, that the parties agreed that the Tribunal should decide first whether on 6 December 2002 there had been a dismissal, as was Mr Sandhu's case, or a termination by mutual agreement, as was the employers' case. That agreement was reached in the context of the employers' admission that if, contrary to their case, it was found that Mr Sandhu had been dismissed, such dismissal was unfair. There had been no disciplinary or other process; and any dismissal, if established, would inevitably be found to have been procedurally unfair. The employers wished, in the event that the Tribunal concluded in Mr Sandhu's favour, to argue that Mr Sandhu had contributed to his dismissal and that the "Polkey" principle applied; but these matters were, by agreement (and, if we may say so, with good sense), postponed until after the Tribunal had decided the issue as to whether or not Mr Sandhu had been dismissed.
5. Because of the narrowness of that issue, which turned on what happened at the meeting of 6 December 2002, the Tribunal heard little evidence and permitted little cross-examination as to what had happened between the parties before that meeting. The employers plainly believed that there had been some misconduct on Mr Sandhu's part in relation to the use of agency drivers; it was accepted by the Tribunal that Mr Sandhu denied any such misconduct; see the third sentence of paragraph 10 of the Tribunal's decision. We will have to return later to the effect of this restriction of the issues before the Tribunal for decision.
6. The rival accounts of the meeting of 6 December are set out concisely at paragraphs 9 and 10 of the Tribunal's decision – and we need not seek to improve on the Tribunal's description which reads as follows:-

"9. According to Mr Sandhu he arrived at the meeting, at which were present himself, Mr Heeren and Mr Winjgaards, to be greeted by Mr Heeren saying "Your contract, we are going to finish it" He continued by saying that he did not trust Mr Sandhu and when asked by Mr Sandhu to be more specific said that Mr Sandhu had compromised his integrity with a supplier. According to Mr Sandhu he was given no further details. Mr Sandhu also asserted that Mr Heeren had said that things were not good between himself and Tina and they were not working as a team. He said that he had made the decision that it would be Mr Sandhu who would leave, not Tina.

10. Mr Wijngaards said that Mr Heeren had commenced the meeting by saying that Mr Sandhu's contract was going to end but then advised him that it was because they did not trust him as regards agency drivers. They had discussions regarding lack of trust and it was indicated to Mr Sandhu they had strong reasons for that belief On being questioned by the Chairman as to the specifics of what was said, Mr Wijngaards said that they had discussed agency drivers and they were not happy with the situation. They specifically discussed the issue of the amount the agency drivers were costing, asked Mr Sandhu if something was going on such that might compromise the company, a fact which he denied. Mr Sandhu commented about the difficulties of unmanned trucks. Mr Wijngaards estimated that about a third of the time they spent together of between 30 minutes to 1 hour was spent on discussing the company's problems and two thirds of the time was in the discussion regarding the ending of the employment."

7. What then happened, as the Tribunal found, was that there were negotiations between Mr Sandhu on the one hand and Mr Wijngaards and Mr Heeren on the other. The employers proposed that Mr Sandhu's employment should end at the end of December 2002; but Mr Sandhu negotiated that he should remain employed until 31 March 2003, should retain the use of his company car to 31 January 2003 and retain the use of his mobile phone; but from 9 December, when he was to cease working for the employers, he would pay for calls himself. From this process a letter dated 6 December 2002 emerged; it was signed by Mr Heeren and Mr Sandhu; it read:

"We hereby agree that we will terminate your contract as per 1-4-2003. We agree that you will be paid till that same day.

You will be working till l9-12-2002 on which day you will return all property of Jan de Rijk Transport Ltd with the exception of your company car. This car has to be returned by the end of January 2003 in good and proper condition.

By signing this letter for acceptance both parties agree that no further obligation will exist after 31-03-2003."

8. On 11 December Mr Sandhu met Mr Kleppers, the employers' European Planning Co-ordinator, and told him that the termination had not been mutual; he made a note of this effect on a document put out to staff on 12 December by his employers. On 17 December he wrote to Mr Heeren seeking to appeal against what he described as the decision taken to terminate his contract. The employers replied on 13 January that it had been Mr Sandhu's wish that the contract should be terminated at the agreed date.
9. At paragraphs 13 and 14 of their decision the Tribunal summarized the conflicting cases of the parties. They described Mr Sandhu's case that, when Mr Heeren told him at the beginning of the meeting that his contract was to be brought to an end, that was a clear dismissal and that pressure was put upon him to sign the letter which emerged from the meeting. The employers' case was that Mr Sandhu knew, when presented with the allegations about the agency drivers, that he had been found out and that he decided to and did negotiate a mutual termination of his contract of employment, most of the meeting having been devoted to those negotiations.
10. The Tribunal's findings of fact, set out in paragraphs 16 and 17 of their judgment, demonstrate, in our view, that they preferred the employers' version of what had occurred at the crucial meeting. The Tribunal accepted – indeed it was not in dispute – that, at the outset, the employers made clear to Mr Sandhu that his contract of employment was going to be brought to an end in the context of the alleged misconduct. Mr Sandhu was, the Tribunal found at paragraph 16 – and we use their words:-

"…faced with the bald facts regarding his apparent abuse of arrangements with agency drivers and made aware that the respondents no longer had any trust in him and wished to terminate his contract…"

Faced with that, Mr Sandhu spent the majority of a meeting sorting out a financially beneficial way of leaving the company. The Tribunal did not accept that Mr Sandhu was given no details of the misconduct. They found that Mr Wijngaards and Mr Heeren went into much more detail, that Mr Sandhu was fully aware of the concerns of the employers and that, knowing those details and the extent of the allegations against him, he chose not to leave the meeting but to spend a considerable length of time in successfully negotiating a 3 month additional payment on top of his contractual notice period (he was contractually entitled to one month's notice) and to the retention, on terms, of his car and his mobile phone.

11. The Tribunal said this at paragraph 18:

"We therefore conclude that, although the situation started off as a dismissal by Mr Heeren's statement, Mr Sandhu in fact left because of the favourable terms he negotiated. It was similar to where an enforced resignation becomes a voluntary one where an employee negotiates satisfactory financial terms and leaves because of them."

12. At paragraph 16 the Tribunal set out their awareness of the principle that an employee who is told "resign or you will be dismissed" is deemed to have been dismissed. They also referred to the principle that, where an employee chooses to resign rather than to be the subject of disciplinary proceedings, as in Staffordshire County Council v Donovan [1981] IRLR 108, that will be held to be a resignation. They said, that the situation before them was, however, different; and, having set out their factual conclusions, they referred in paragraph 19 to the decisions of the Employment Appeal Tribunal in Sheffield v Oxford Controls [1979] IRLR 133 and Crowley v Ashland (UK) Chemicals Ltd EAT31/79 which they regarded as on all fours with the case before them. They said at paragraph 19:

"…therefore, on the facts and in law, we concluded that the parting of the ways between the claimant and the respondent company was by mutual agreement and therefore not a dismissal."

The authorities

13. The authorities demonstrate, in our judgment, that in this class of case whether there has been a dismissal or a mutual termination is a question of causation which a Tribunal has to answer by analysis of the facts and, if there be any, of the relevant written material. In a simple and straightforward case in which the employer tells the employee that if he does not resign he will be dismissed and the employee then resigns the Tribunal are entitled to conclude and will ordinarily conclude that the employee has been dismissed. This is established by the chain of cases stemming from East Sussex County Council v Walker [1972] ITR 280 which is set out at paragraphs 8 to 13 of the judgment of the Employment Appeal Tribunal, Arnold J presiding, in Sheffield v Oxford Controls; but in less straightforward cases in which the employee has not simply resigned under such a threat but has entered into and concluded negotiations as to the terms upon which his employment is to come to an end, it is open to the Tribunal to reach a different conclusion after they have objectively determined what occurred and what was the cause and effect of what occurred. See Burton Group v Smith [1977] IRLR at paragraph 24 in the judgment of the Employment Appeal Tribunal, Arnold J again presiding.
14. In Sheffield the brief facts were that the employers were owned in part by the Sheffield family and in part by the Raison family. The latter family held the majority of the shares and therefore had control of the company. Both Mr and Mrs Sheffield were employees of the company. After a disagreement between Mrs Sheffield and Mrs Raison two threats were made to Mr Sheffield that if he did not resign he would be dismissed. There were negotiations between Mr Sheffield and Mr Raison; they ended with both initialling a heads of agreement document which set out terms upon which Mr Sheffield was to leave the company in return for a payment of £10,000. The Employment Tribunal found that Mr Sheffield had not been dismissed. At paragraph 20 of their judgment the Employment Appeal Tribunal said:

"It is plain, we think, that there must exist a principle, exemplified by the four cases to which we have referred, that where an employee resigns and that resignation is determined upon by him because he prefers to resign rather than to be dismissed (the alternative having been expressed to him by the employer in the terms of a threat that if he does not resign he will be dismissed) the mechanics of the resignation do not cause that to be other than a dismissal: The cases do not in terms go further than that. We find the principle to be one of causation. 1 cases such as that which we have just hypothesised, and those reported, the causation is the threat. It is the existence of the threat. It is the existence of the threat which causes the employee to be willing to sign, a resignation later or to be willing to give, and to give, the oral resignation. But where that willingness is brought about by other considerations and the actual causation of the resignation is no longer the threat which has been made but is the state of mind of the resigning employee that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then we think there is no room for the principle to be derived from the decided cases. In such a case he resigns because he is willing to resign as the result of being offered terms which are to him satisfactory terms on which to resign. He is no longer impelled or compelled by the threat of dismissal to resign, but a new matter has come into the history, namely that he has been brought into a condition of mind in which the threat is no longer the operative factor of his decision; it has been replaced by the emergence of terms which are satisfactory. Therefore we think that the finding that Mr Sheffield had agreed to terms upon which he was prepared to agree to terminate his employment with the company -terms which were satisfactory to him -means that there is no room for the principle and that it is impossible to upset the conclusion of the Tribunal that he was not dismissed."

15. In Staffordshire County Council v Donovan the employee left when, in the face of disciplinary proceedings against her, an agreement was made between her union official and the employer's solicitors that she would leave in 3 months time and, while being suspended during that period, would receive full pay. The employers' appeal against the Tribunal's conclusion that she had been dismissed was allowed. At paragraph 23 of its judgment, the EAT, presided over by Slynn J said:

"Now it is clear that this Appeal Tribunal has on a number of occasions said that if an employee is told 'Either resign or you will be dismissed' and the employee then chooses to resign under the threat of dismissal, that in reality is to be treated as a dismissal for the purposes of a claim under the 1978 Act. This present case, however, it seems to us is very different from that. Here there had been warnings and from time to time, proposals to refer the complaints of those senior to Mrs Donovan, to the disciplinary sub-committee under the council's ru1es. In June 1978 the matter was so referred, and adjourned for the purpose of obtaining medical evidence. In the intervening period there was a discussion between both sides – everybody no doubt, by this stage realising that relationships had broken down between Mrs Donovan and other members of the staff. If the agreement which was reached is one which was arrived at under duress, and if it could be really seen as amounting to a dismissal or threat of dismissal by the council, then the majority would perhaps have been justified in their conclusion. But we have considered carefully and at length the proof which was put in by Mr Hudson, the solicitor on behalf of the authority, and the notes of evidence of Mr Kingshott the NALGO representative acting at the meeting for Mrs Donovan. We find it quite impossible to say, on the basis of those statements - which in substance are saying very much the same thing – that there was a threat of dismissal even seen in the context of all that happened before. It seems to us that the proceedings were continuing subject to a right of appeal. In our judgment the majority clearly misdirected themselves as to the effect of the earlier cases and as to their ana1ysis of the evidence: it seems to us that it would be most unfortunate if, in a situation where parties are seeking to negotiate in the course of disciplinary proceedings and an agreed form of resignation is worked out by the parties, one of the parties should be able to say subsequently that the fact that agreement was reached in the course of disciplinary proceedings entitles the employee thereafter to say that there was a dismissal. Accordingly we are satisfied here that there has been an error of law on the part of the majority. We consider that the Chairman was right in the conclusion to which he came."

16. In Salton v Durham CC [1989] IRLR 997 the employee was employed by the Council as a social worker on the emergency duty team until, as a result of a disciplinary hearing, he was withdrawn from that team and placed, at the same grade, in a post which was less congenial to him. His attempts to recover his previous post through an appeal process and a grievance process failed. Eventually he accused the director of social services of hatching a plan to drive him out of the department; as a result disciplinary proceedings against him were instituted. A week before the disciplinary hearing the employee was sent a report produced by the employers' which set out a number of complaints against him and recommended that he be summarily dismissed. As a result he decided that he would be unlikely to succeed at the disciplinary hearing and resigned. He authorized his own union official to negotiate with the council; and these negotiations resulted in an agreement that his contract of employment would terminate by mutual agreement about 8 weeks thereafter and that the council would pay him £2,750 which would be appropriated towards his car loan, the balance of which would be repaid after a further year.
17. The EAT, Wood J presiding, upheld the Tribunal's decision that there had been no dismissal. After reference to Sheffield and to Donovan the EAT said, at paragraph 13:

"We were also referred to Martin v Glynwed Distribution Ltd (1983) ICR 511. The facts of that case are not material and we would only refer to it ourselves to stress that the question of dismissal is a finding of fact. Sir Denis Buckley in a short judgment on p.521 says this:

'I do not consider that I can usefully add anything beyond saying that the finding of the Industrial Tribunal that "in our view this was not a dismissal" was a pure finding of fact. It was not a decision on a point of law or on a point of mixed fact and law. It was finding upon a question whether, on the primary facts, the employee in choosing to resign was in fact exercising his own right to choose whether to resign or to submit to an inquiry, or whether he was induced to resign by the conduct of Mr Daley. The Appeal Tribunal could only interfere with such a finding if in the opinion of the Appeal Tribunal it was a conclusion to which no reasonable Tribunal could have come.'

In our judgment there was ample evidence upon which the Tribunal could reach the decision which it did reach, and that there is no error here which would justify interfering with their findings that the agreement of February 1987 was entered into without duress, and amounted to a mutual agreement to terminate the contract of employment and that there was no dismissal."

18. It is apparent from these authorities that, in cases of this type, the Tribunal has to decide whether what has caused the resigning employee to resign is the threat of dismissal or the fact that he has been offered what are to him satisfactory terms on which to resign; and that question is one of fact.

The submissions

19. On behalf of Mr Sandhu Mr Brown put forward two principal points which we will describe, for the sake of convenience, as the causation issue and the evidential issue. We will set out below, in summary form, the submissions of the parties and our conclusions upon each point individually.

The causation issue

20. Mr Brown's primary submission as to this issue was that the Tribunal had erred in law in concluding that Mr Sandhu had voluntarily resigned and should have concluded that Mr Sandhu was given no option by the employers but to leave; he was presented with a fait accompli; from the start of the meeting of 6 December to the end it was clear to him that he was going to be dismissed; he did not choose to go; and this was truly a "resign or be dismissed" case in which there had not been a commercial negotiation as in Sheffield or Salton, nor was Mr Sandhu leaving in anticipation of the possible result of disciplinary procedures as in Donovan and Salton.
21. Mr Brown put the error of law on which he relied in two ways; he submitted, first, that the Tribunal had erred in not applying the test laid down by the authorities and in particular in paragraph 20 of Sheffield of considering what was the operative cause on Mr Sandhu's mind of the resignation. He accepted that, if the correct test had been applied, the answer reached by the Tribunal would be one of fact; but in this case, he submitted, the Tribunal could be seen not to have applied that test; for if they had, they could only have come to the conclusion that Mr Sandhu was given no option and that the resignation was not caused by any choice on his part.
22. Mr Brown submitted, as an alternative position, that the Tribunal had reached a perverse conclusion. He pointed, in particular, to:-

1) the terms of the document which emerged from the meeting of 6 December, written by the employers and saying, "We terminate your contract";

2) the Tribunal's finding at paragraph 17 that it was only on the basis that he must have been aware of the allegations against him that Mr Sandhu had negotiated as he did;

3) Mr Sandhu was confronted only with "bald facts";

4) the Tribunal gave no or no proper weight to Mr Sandhu's case that he accepted his departure only because he was told that he was going to be dismissed. The Tribunal's finding that he left because of the favourable terms he negotiated was not in the circumstances and in particular in the absence of any other real option a conclusion which was open to the Tribunal.

23. Mr Brown further submitted that, if the Tribunal's decision in this case stood, the effect of the protection provided by section 203 of the Employment Rights Act 1996 against the evils of contracting out of the rights and entitlements provided by the act to employees would be severely damaged.
24. Mr Reese raised a preliminary point, namely that there was no dismissal because no date for dismissal to take effect had ever been given prior to the negotiations. He relied for this mission on an early decision of the Divisional Court in a redundancy payments case, Morton Sundour Fabrics v Shaw [1966] ITR 84, in which the employer told the employee that the department in which he worked would have to close and his employment would have to end but did not tell him when this would occur. The employee gave notice, at the end of which he left. He then claimed a redundancy payment. The Tribunal's decision in his favour was reversed; the divisional court held that when an employer says, "I intend to dispense with your services at some time in the coming months" there is not a dismissal but rather a warning of a future dismissal.
25. As to the substance of Mr Brown's submission, Mr Reese submitted that the Tribunal had applied the correct test derived from Sheffield and had reached, having applied that test, a conclusion on the facts which was open to them. This was not, he submitted, a simple case of "resign or be dismissed"; the Tribunal's findings were that Mr Sandhu was made fully aware of the employer's concerns and that, with that knowledge, he chose to negotiate for himself a departure package rather than choose the other option of standing and fighting his corner. The document of 6 December was signed by both the employers and Mr Sandhu; Mr Sandhu was not obliged to sign; he signed it because, as the Tribunal found, he chose to do so in order to obtain the package which had been offered.
26. In our judgment the Tribunal did not fail to apply the correct test. That test required the Tribunal to consider whether it was the existence of the threat of dismissal which caused Mr Sandhu to resign or whether the cause of his resignation was his willingness to do so on the terms offered to him; see the passage in paragraph 20 of Sheffield which we have cited earlier. The Tribunal's findings in this case were that Mr Sandhu did not resign in response to a threat that if he did not do so he would be dismissed but that he left because of the favourable terms he negotiated. The Tribunal's use of the words:

"Mr Sandhu in fact left because of the favourable terms he negotiated"

and the words of the following sentence in paragraph 18 of the Tribunal's decision reveal that the Tribunal were asking themselves the correct question which was a causation question and answering that question by reaching a factual conclusion as to what was, in Mr Sandhu's mind, the cause of his decision to resign.

27. We are not persuaded that that factual conclusion was perverse. It is not necessary for us in this appeal to linger over the definition of perversity on which there has been, in any event, no argument before us. We proceed on the basis that, in order to make out a case of perversity, he who alleges it must demonstrate an overwhelming case that the Tribunal reached a factual conclusion which no reasonable Tribunal could reach; see Yeboah v Crofton [2002] IRLR 634. Applying that test, in our judgment the relevant conclusion in this case has not been shown to have been perverse and was one which was open to or a "permissible option" for the Tribunal to reach. Their findings of primary fact involve the rejection of Mr Sandhu's case that he was given no details of the allegations against him; the Tribunal found that he was not told merely that he had compromised his integrity but that the employers went into much more detail and that it was on the basis of full awareness of the concerns of the employers that Mr Sandhu chose to negotiate a favourable deal for his departure. These findings are inconsistent with the argument that Mr Sandhu had no option; it was not suggested that, if there had been a dismissal, he would have left on those same favourable terms. It was open to the Tribunal to conclude that Mr Sandhu had made a choice to negotiate as he did and to find that it was the product of that choice which caused him to leave.
28. As to Mr Brown's individual points, which we have set out above:

1) there is no doubt – as the Tribunal expressly recorded – that the employers told Mr Sandhu at the outset of their intention to dismiss him because of misconduct; but that does not render the Tribunal's finding, in the light of what followed, as to the cause of his departure perverse – anymore than it did in Sheffield where the employee received two threats of dismissal;

2) the letter of 6 December is not inconsistent with the Tribunal's conclusion; it is expressed in terms of an agreement to be signed by both of the parties and was signed by both of the parties. The fact that it was written by the employers sufficiently explains why the words "we" and "your contract" appear in the first line;

3) the use in paragraph 16 of the expression "the bald facts" was in our judgment not intended to indicate that Mr Sandhu was told only that he had abused his employer's trust; for the subsequent findings, to which we have already referred more than once, were that he was told of the employee's concerns in detail and was fully aware of those concerns. The Tribunal no doubt intended to convey by the use of those words that the employers did not express themselves in a tentative manner;

4) we do not agree that the Tribunal did not consider Mr Sandhu's case; they set out his version of the facts at paragraph 9, they set out the way in which his case was put in paragraph 13; they considered the authorities, applied the correct test derived from the authorities and reached factual conclusions, in the light of consideration of the evidence on both sides and of both sides' submissions, which were open to them.

29. Accordingly, we do not accept Mr Brown's submissions upon this issue.
30. We must, of course, be concerned that the protection provided by section 203 of the 1996 should not be substantially damaged; but this is not a case in which any such damage is, in our judgment, at stake. This is not a case of an agreement which seeks to prevent Mr Sandhu from exercising any of the various rights provided to him by the act subsequent to and consequent upon his dismissal. Before any such rights can be invoked, it must be established that there was a dismissal. If dismissal is an issue, a Tribunal must resolve that issue by correctly applying the law and making permissible findings of fact; if they do that, section 203 is not compromised; the Tribunal will have reached a decision according to well-established principles – as they did in this case.
31. In view of what we have said it is not necessary for us to consider in detail, if at all, Mr Reese's preliminary submission based on Morton Sundour Fabrics. However it may be helpful if we express in summary terms our view that the facts of that case were very different from the facts of the present case or a case like it. The employers in Morton Sundour Fabric were manifestly doing no more than giving a warning of impending redundancy. In this case the employers were not giving a warning; they had made it clear that Mr Sandhu was going to be dismissed; and if Mr Sandhu had chosen not to negotiate and they had proceeded to dismiss, the date of dismissal would have become plain. The absence of an identification of a date prior to the negotiations did not in any way, in our judgment, affect the test which the Tribunal had to apply or the result of the application of that test.

The evidence issue

32. It is not in dispute that the Tribunal did not permit any or any substantial evidential exploration of the misconduct on the part of Mr Sandhu which was alleged by the employers to have occurred. Precisely how and when, in the course of the hearing, that came about is in dispute. In an affidavit Mrs Capon, the solicitor who appeared on behalf of Mr Sandhu before the Tribunal, asserts that the employers' witnesses were permitted to put forward evidence of matters prior to 6 December but that she was not permitted by the Tribunal to cross-examine about the misconduct and that the Tribunal made it clear to her that they did not wish to hear any evidence from Mr Sandhu other than as to the events of and following 6 December. Thus, she says, Mr Sandhu was prevented from giving evidence as to the allegations and thereby prevented from giving an adequate account of why on 6 December he acted as he did.
33. Mr Reese in an affidavit in response states that, at the outset, the parties agreed that the Tribunal should decide as a preliminary issue what happened on 6 December 2002 i.e. was there a consensual termination or was Mr Sandhu dismissed and that the Tribunal therefore, as agreed, heard only from Mr Sandhu on his own behalf and from Mr Wijngaard on the employer's behalf. The employers' other witnesses, whose evidence would have gone to proving the misconduct and thus, in the event of a finding of dismissal, to contributory fault were not called. Mr Reese says that he did not cross-examine the Claimant about the misconduct and that the cross-examination of Mr Wijngaard centred on what had happened at the meeting. However Mrs Capon, he says, felt that she should have had the opportunity to cross-examine the employer's other two witnesses (albeit that they were not called) and to clear Mr Sandhu's name.
34. There are detailed responses from the Chairman of the Tribunal and from the lay members to Mrs Capon's affidavit. We do not regard it as necessary to go through them in detail; it is clear that all three regarded the evidence as substantially confined to the issue as to what occurred on 6 December 2002.
35. While there are differences of recollection as to what happened, particularly between Mrs Capon and Mr Reese, we do not need to resolve them; and we were not invited by Mr Brown or Mr Reese and did not consider that it would be at all helpful in this case to hear Mrs Capon or Mr Reese give evidence to us. The reasons for that can be shortly stated; it was accepted before us that the Tribunal had at the outset decided, with the agreement of the parties, to limit themselves to deciding the issue as to whether there had been a dismissal or a consensual termination. Mr Brown put this part of his case in a careful and limited way; he did not assert that the Tribunal were in error in deciding to enquire into that issue as a preliminary issue; his point, made with skill and moderation was (1) that the Tribunal had reached their conclusions as to what happened on 6 December 2002 on the basis that Mr Sandhu had acted as they found he had acted on that day because he knew he had been "found out" i.e. he had been guilty of misconduct and (2) that the Tribunal could not conclude that he had acted for that reason without hearing evidence from him and in cross-examination from the employers about the misconduct; for it was not Mr Sandhu's case that he was guilty of misconduct or event that there was a strong case against him; he had from the outset denied and still maintained his denial of any misconduct.
36. In support of this argument Mr Brown pointed in particular to the Tribunal's summary of the employers' case at paragraph 14 of their judgment which records their position as being that Mr Sandhu decided to make the best of the situation because he knew he had been found out. By implication, Mr Brown submitted, the Tribunal must be taken, in paragraph 17 onwards of their judgment, to have accepted that view of what had occurred; and he drew our attention to the fact that the Chairman does not refer to Mr Sandhu's case that the allegations were unfounded. The lay members' comments similarly make no such reference.
37. Mr Reese submitted that the procedure which was to be adopted was clear from the outset, the evidence was to be limited in the manner that we have described; he did not cross-examine Mr Sandhu about the misconduct, his evidence was properly restricted to the issues which were to be decided; and, as the hearing went on, Mrs Capon strayed from that issue into a different issue, namely whether the allegations of misconduct were true and was correctly brought back to the real issue by the Chairman. Whether the allegations were or were not true, Mr Reese submitted, could only have gone to an issue of contributory conduct, if that issue arose.
38. The Tribunal were, of course, entitled to regulate the procedure adopted pursuant to case management powers; but those powers would not have entitled them to exclude evidence which was admissible and material, whether adduced in-chief or sought to be adduced by way of cross-examination. However, in our judgment, the argument that the Tribunal proceeded or must be taken to have proceeded on the basis that Mr Sandhu knew he had been found out is not made good from the terms of the judgment itself. The Tribunal do not say at any point in the paragraphs which contain their conclusions, paragraphs 16 to 20, that they had reached their factual conclusions on that basis. It was not logically necessary for them so to conclude if they were to reach the decision that Mr Sandhu had chosen to negotiate his own departure package. He might so have chosen because he knew that he had been found out; but he might equally so have chosen because, although he knew that he was innocent of misconduct, he could see that the employers believed that he was guilty and that the outcome, if he stood his corner, might be less favourable than that which he could achieve by negotiation. We see no basis for an implication that the Tribunal proceeded on a basis which they did not state and which was not logically necessary to the conclusion which they reached. They accepted the employer's account of what had happened; it did not follow that they accepted the employers' interpretation of Mr Sandhu's motives. Finally the Tribunal in paragraph 10 set out that, at the meeting, Mr Sandhu had denied misconduct; they do not at any point in their judgment indicate that he had expressly resiled from that denial or that they took him to have resiled from that denial.
39. For these reasons it was not necessary for any issue as to the truth or otherwise of the allegations of misconduct to be canvassed. Mrs Capon may or may not have wanted to clear Mr Sandhu's name; but the opportunity did not arise in the context of the issue which the Tribunal had to decide. We are satisfied that the Tribunal did not err in law in restricting the evidence before them as they did.

Conclusions

40. For the reasons we have set out this appeal must be dismissed.