On being told he was to be dismissed, Mr Jones had taken early retirement. He made a claim in the County Court that his pension had been wrongly reduced, The court rejected his allegation that he had acted under duress. His subsequent claim of unfair dismissal in the Employment ribunal was also rejected, but his appeal to the EAT had succeeded. The Council now appealed.
Held: The appeal succeeded. Waite LJ said: ‘It is an exceptional position in Industrial Tribunal cases for a case to be dismissed on the submission of no case to answer. The generally accepted view in Industrial Tribunal cases is that we should hear both sides before we make our decision’ and ‘The concept of dismissal by enforced resignation is too valuable and too flexible to be constrained by such preconditions as a requirement that a threat of dismissal must be the sole factor inducing the resignation.’ The Court of Appeal, when assessing a tribunal’s decision must look beyond any poor expression of the judgment to see whether the tribunal’s approach was correct in in law.
Waie LJ went on to say: ‘Courts and tribunals have been willing, from the earliest days of the unfair dismissal jurisdiction, to look, when presented with an apparent resignation, at the substance of the termination for the purpose of inquiring whether the degree of pressure placed on the employee by the employer to retire amounted in reality to a dismissal. In the instant case, the employee had framed his claim in constructive dismissal, and the industrial tribunal dealt with it upon that footing. There was accordingly some discussion before us as to whether the principle I have just mentioned is to be regarded as deriving from an inference of circumstances giving rise to a constructive dismissal under s.95(1)(c) of the Employment Rights Act 1996, or whether it is more broadly based as a species of direct dismissal. For my own part, while tending to favour the latter view, I do not find it necessary to resolve that question in the present case because the principle itself (whatever its origins) is well settled. It is a principle of the utmost flexibility which is willing in all instances of apparent voluntary retirement to recognise a dismissal when it sees it, but is by no means prepared to assume that every resignation influenced by pressure or inducement on the part of the employer falls to be so treated. At one end of the scale is the blatant instance of a resignation preceded by the employer’s ultimatum: ‘Retire on my terms or be fired’ – where it would not be surprising to find the industrial tribunal drawing the inference that what had occurred was a dismissal. At the other extreme is the instance of the long-serving employee who is attracted to early retirement by benevolent terms of severance offered by grateful employers as a reward for loyalty – where one would expect the industrial tribunal to draw the contrary inference of termination by mutual agreement. Between those two extremes there are bound to lie much more debatable cases to which, according to their particular circumstances, the industrial tribunals are required to apply their expertise in determining whether the borderline has been crossed between a resignation that is truly voluntary and a retirement unwillingly made in response to a threat. I doubt myself whether, given the infinite variety of circumstance, there can be much scope for assistance from authority in discharging that task: indeed, attempts to draw analogies from other cases may provide more confusion than guidance.’
Lord Justice Kennedy, Lord Justice Waite, Mr Justice Mccullough
Gazette 14-Jan-1998, [1997] EWCA Civ 1680, [1997] ICR 815, [1997] IRLR 685
Bailii
Employment Rights Act 1996 95(1)(c)
England and Wales
Citing:
Appeal from – Jones v Mid-Glamorgan County Council EAT 8-May-1995
. .
Cited – Sheffield v Oxford Controls Co Ltd EAT 18-Dec-1978
The company had been owned equally by Mr. Sheffield and Mr. Raison. The Raisons gained effective control of the company on the issue of shares. Mr. and Mrs. Sheffield had been employed, but after a row, she was told she would have to go. This . .
Cited by:
Cited – Logan v Commissioners of Customs and Excise CA 23-Jul-2003
The respondent had at the close of the claimant’s case submitted that it had no case to answer. The tribunal agreed and discharged the claim without hearing from the respondent. The employer appealed the EAT’s decision to allow her appeal.
Cited – Sandhu v Jan De Rijk Transport Ltd CA 10-May-2007
The court was asked whether the claimant had been dismissed or had resigned. He had attended a meeting to be told that his contract was to be finished. The company later complained that he had resigned when they were unable to reach a compromise on . .
Cited – Northgate HR Ltd v Mercy CA 13-Dec-2007
The claimant alleged that his selection for redundancy was unfair, the company having failed properly to consult its own employee consultation council and in having failed to disclose its scoring system. The company said that any such complaint . .
Lists of cited by and citing cases may be incomplete.
Employment
Leading Case
Updated: 10 November 2021; Ref: scu.142076
