Mr Sandhu worked as a manager for a road haulage firm. He was told to attend a meeting without being informed as to what it was about.
A Mr Heeren commenced the meeting by saying that the appellant's contract was going to end owing to allegations of misconduct that had been made against Mr Sandhu (the respondent does not appear to have taken any steps to investigate them).
Had Mr Heeren then proceeded to dismiss the Claimant, this would clearly have been an automatically unfair dismissal as the statutory Disciplinary and Dismissal procedures had not been complied with.
The meeting continued and there then followed negotiations as to how Mr Sandhu would leave the company. He was allowed some small perks such as being able to keep his company car a little longer.
With this in mind, when Mr Sandhu later took his employer to an employment tribunal, it decided that he had not been unfairly dismissed, as the contract of employment was brought to an end by mutual agreement between the parties. The tribunal found that Mr Sandhu had left because of the favourable terms he had negotiated.
This was despite the Claimant having written to Mr Heeren after the meeting asking to appeal against the decision taken to terminate his contract with the respondent, his stating that the decision was not taken by mutual consent, and that he wished to see a minute of the 6 December meeting "along with detailed reasons for my termination of contact". He received a terse reply to these requests. There had been no evidence of an appeal process (nor any appropriate procedure for dealing with employees the company wished to dismiss. There were no minutes of the meeting.
With the above facts in mind, the case of East Sussex County Council v Walker (1972) IITR 280, a case under section 3(1)(a) of the Redundancy Payments Act 1965, and decided by the National Industrial Relations Court was quoted:
"In our judgment, if an employee is told that she is not longer required in her employment and is expressly invited to resign, a court of law is entitled to come to the conclusion that, as a matter of common sense, the employee was dismissed. Suppose that the employer says to the employee, "Your job is finished. I will give you the opportunity to resign. If you don't, you will be sacked". How, we would ask, is it possible to reach a conclusion other than that the employment is being terminated by the employer, even though the employee takes the first and more respectable alternative of signing a letter of resignation rather than being the recipient of a letter of dismissal? We feel that in such circumstances there really can be no other conclusion than the employer terminated the contract".
The Employment Appeal Tribunal widened the argument to a discussion of causation, "…… 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 the 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. In cases such as that which we have just hypothesised, and those reported, the causation is the threat. It is the existence of the threat which causes the employee to be willing to sign, and to sign, a resignation later or to be willing to give, and to give, the oral resignation."
The COA noted that: "in no case where an employee had been held to resign, had he resigned the same day as the interview in which the question of dismissal has been raised, and in no case in which the termination of the employee's employment has occurred in a single interview has a resignation been found to have taken place".
"The appellant was being dismissed. In my judgment it simply cannot be argued that he was negotiating freely. He had had no warning that the purpose of the 6 December meeting was to dismiss him; he had had no advice, and no time to reflect. In my judgment, he was doing his best on his own to salvage what he could from the inevitable fact that he was going to be dismissed. This, in my judgment, is the very antithesis of free, unpressurised negotiation".
The judgement continued:
"the respondent's conduct in this case is unacceptable for a number of reasons. It does not appear to have conducted any investigation into the appellant's alleged misconduct before summoning him to the 6 December meeting. It did not tell him in advance what the charges against him were. It did not suggest that he could or should take advice before attending the meeting, or that he could bring a representative or adviser with him. It kept no record of the 6 December meeting. It made up its mind to dismiss him before it had heard him. It does not appear to have any proper grievance, dismissal or appeal structures in place. It did not properly consider the appellant's correspondence after the event.
Employers of the size of the respondent should not be encouraged to behave as the respondent has done, nor should they think that proper procedures for disciplining or dismissing their employees are unnecessary. This is not a case brought under section 203 of the Employment Rights Act 1996, but the principles that proper procedures should be in place, and that an employer should not be able to use its dominant position to exploit its employees' position both apply".
Through reasoned argument the judges of the Court Of Appeal came to the blindingly obvious decision, that poor old Mr Sandhu had been bounced into making his resignation. Now why couldn't same decision be made previously? Obvious because the tribunal lost sight of the wood for the trees. The heavy weight of the law compounded by the serried ranks of lawyers and barristers confronting the judges, and daring them to make a tiny slip in their interpretation of the law does not aid in coming to a just solution. It only delays decisions and racks up the costs of the litigation.
The judges implied here that a commonsense approach is needed, at least in this situation:
" 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".
What is the wider solution? Again obvious. The ET needs to be reformed in order to bring it into line with its original founding ideal, that of being the small man's court. Firstly, the inquisitorial system should be adopted as in the small claims court, whereby a judge hears both sides, preferably unrepresented parties. The judge asks questions and examines the witnesses himself, and then he comes to his decision.
There is a need for a cheap and cheerful system that is above all efficient. This will certainly be a more just system than the present one.
In a parting shot, the judge Lord Justice Wall of the Court of appeal regretted that the case had cost far more money that it had ever been worth, and decried the further waste of money that was going to happen, and recommending negotiation rather than litigation. The system demanded however that in the absence of negotiation, that he remit the case back to the employment tribunal for a re-hearing.
Only by going as far as the COA could a just decision be found. But even then, the case was not decided. It was only that the Claimant coul get another go. This case is a prime example of the enormous waste of time and resources that is the present Employment Tribunal system.
The employment tribunal system is crying out for reform.
© Workrep 15 / 06 / 2007