Turner v London Transport Executive
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROWNE,LORD JUSTICE MEGAW |
| Judgment Date | 06 May 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0506-4 |
| Date | 06 May 1977 |
| Court | Court of Appeal (Civil Division) |
[1977] EWCA Civ J0506-4
In The Supreme Court of Judicature
The court of Appeal
(CIVIL DIVISION)
(Appeal from Order of His Honour Judge Ruttle - Westminster County Court)
Lord Justice Megaw,
Lord Justice Browne and
Lord Justice Geoffrey Lane
The APPELLANT (Mr. C. A. Turner, Plaintiff) appeared in person.
MR.PATRICK TWIGG (instructed by Mr. V. J. Moorfoot) appeared on behalf of the Respondents (Defendants).
The plaintiff in an action in the Westminster County Court, Mr. Colin Arthur Turner, is the appellant in this Courts He appeals from an interlocutory decision of Judge Ruttle in the Westminster County Court, given in a reserved judgment on 16th December, 1976. The action by Mr. Turner was against the defendants, The London Transport Executive. Mr. Turner had been employed by the defendants in that action, The London Transport Executive, for about 23 years when, on 10th October, 19 74, he handed in his resignation, which became effective on 16th November, 1974. He brought proceedings before the Industrial Tribunal established under the Trade Union and Labour Relations Act, 1974, claiming in respect of unfair dismissal. He succeeded in that claim by a decision of the tribunal given on 22nd September, 1975. The tribunal decided that Mr. Turner had been unfairly dismissed and held that he was entitled to compensation in the sum of £5,200. That was the maximum amount which the tribunal could award under the provisions of paragraph 20 of the First Schedule to the Trade Union and Labour Relations Act, 1974, to which I shall refer hereafter, for brevity, simply as "the 1974 Act".
The tribunal gave its reasons for the decision in a document consisting of 21 paragraphs. While the actual decision of the three members of the tribunal was unanimous, there was a difference in the reasons given by the two members who in this respect constituted the majority and by the Chairman who in this respect constituted the minority; but, as I say, the actual decision was unanimous, though the reasons were different.
Thereafter, Mr. Turner started the action in the Westminster County Court out of which this appeal arises. In that action he claimed damages in respect of an alleged breach of contract by The London Transport Executive. He averred in his particulars of claim that the defendants could not in the County Court action contendthat they haft rot committed the breach of contract - whatever it was - on which the plaintiff's action was founded, and that the defendants could not contest "the fact of malice - whatever the meaning or effect of that might be. The defendants, so the plaintiff contended, were precluded from disputing those matters by reason of the principle of law which is known as "issue estoppel". As I understand it, if this plea of issue estoppel which he set up, as it were in anticipation of the defence, were right, the effect would he that in the action in the Westminster County Court the sole issue would he as to the amount of damages, if any, to which the plaintiff would he entitled.
The circumstances of the plaintiff a cessation of employment with the defendants in the autumn of 1974 can, I hope, he recounted quite briefly for the purposes of this appeal. The plaintiff's immediate superior, I think, in the employment of the defendants had either left that employment or had been or was about to be promoted. The plaintiff, along with a number of other persons, applied to The London Transport Executive for the vacant post, which was the post of Administrative Manager in the department of the Chief Civil Engineer. A "short list" of candidates to be interviewed was prepared. To quote from paragraph 8 of the reasons of the Industrial Tribunal: "The main right to determine who should have an Interview rests with the employing officer, the officer in whose department the vacancy exists". A little lower in the same paragraph, it is stated: "In the present ease Mr. Cuthbert was the employing officer".
The plaintiff's name was not included on the "short list" for interview. That list, with its exclusion of the plaintiff, was approved by a Mr. Liddle, who was the Chief Establishment Officer. He and Mr. Cuthbert were, or perhaps were to be, members of a so-called "Promotion Panel", which, under the machinery of the defendants as regards promotion, was to decide on the person to bepromoted. Whether it was a promotion panel or a promotion committee, I do not think matters for present purposes.
The plaintiff gave to his employers his notice of resignation because, in part at least - and I say that because it appears from the reasons for decision that there say have been other reasons as well - he was not included in the "short list". That notice was accepted. The Industrial Tribunal, after a hearing, as I have already said, decided that the plaintiff had boon unfairly dismissed. That decision was not appealed against (there is, of course, provision in the Act for appeal against a tribunal's decision) and therefore it is, and remains, a decision binding on the parties; and nothing that happens in the County Court or in this Court can affect the finality of that decision.
The decision was arrived at by reference to paragraphs 4, 5 and 6 of the First Schedule to the 1974 Act. Paragraph 4 reads: "(1) In every employment to which this paragraph applies every employee shall have the right not to be unfairly dismissed by his employer, and the remedy of an employee so dismissed for breach of that right shall be by way of complaint to an industrial tribunal under Part III of this Schedule, and not otherwise".
Then paragraph 5 is headed "Meaning of 'dismissal'" "5 (1) In this Schedule 'dismissal' and 'dismissed' shall be construed in accordance with the following provisions of this paragraph. (2) Subject to sub-paragraph (3) below" (which for present purposes does not matter) "an employee shall be treated for the purposes of this Act as dismissed by his employer, if, but only if, (a) the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice, or (b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract, or(c) the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct".
Paragraph 6 of the First Schedule is headed "Fair and unfair dismissal". Subparagraph (1) thereof provides: "In determining for the purposes of this Schedule whether the dismissal of an employee was fair or unfair, it shall he for the employer to show - (a) what was the reason (or, if there was more than one, the principal reason) for the dismissal, and (b) that it was a reason falling within subparagraph (2) below, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held". I do not think I need read the following sub-paragraphs, though a number of the a were referred to in the argument before us, other than sub-paragraph (8) Subparagraph (8) provides: "Subject to paragraphs (4) to (7) above, the extermination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether the employer can satisfy the tribunal that in the circumstances (having regard to equity and the substantial merits of the case) he acted reasonably in treating it as a sufficient reason for dismissing the employee".
There is no doubt that the tribunal's decision as to dismissal, in spite of the fact that the plaintiff had handed in his notice, was based on paragraph 5 (2) (c). I do not think that Mr. Turner (who has appeared in person to present his argument in this Court, as he did in the County Court and before the Industrial Tribunal) is disposed to accept that that is so; but It appears to me that it is a Inevitable conclusion from what was said at the end of paragraph 17 of the reasons of the tribunal. The tribunal must have held that the plaintiff was entitled to terminate his contractwithout notice (the fact that ho admittedly gave notice le irrelevant became of the terms of the paragraph) by reason of the employers' - that le, the defendants' - conduct' The tribunal must have hold that the defendants had failed to prove that the dismissal was fair - a matter as to which the onus rooted upon them under the provisions of paragraph 6.
As I have said, the tribunal awarded the maximum compensation permissible under the Act, They indicated, at the end of their reasons, in paragraph 20, that in their view the plaintiff's actual loss - which seems to have been calculated, and It may well be rightly, by reference simply to potential loss of earnings - was greater than the maximum sum which the tribunal could award.
We have before us the particulars of claim in the action which Mr. Turner thereafter started in the Westminster County Court. In the copy before me they are not dated. The defense was delivered on 28th September, 1976; so presumably the action was started a relatively short time before that. By that action Mr. Turner claimed (I quote the beginning of the particulars of claim) "Damages for vexation, frustration, anguish, emotional distress and humiliation in the breach by The London Transport Executive of the plaintiff's contract of employment. And the plaintiff claims £1,000 and costs". By paragraph 10 of the particulars of claim he says: "The plaintiff therefore submits that The London Transport Executive is estopped per rem judicatam from denying the breach of contract and the fact of malice found by the Industrial Tribunal" He gives a reference to a work called Spenser Bower and Turner on the Doctrine of...
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