Gosnold v BA Security Ltd

An employment tribunal must determine the issues identified by the parties and must not decide a material issue adversely to a party without giving that party an opportunity to make submissions. Where dismissal is admitted and the employment has in reality been terminated by the employer, the tribunal should not recharacterise the termination as a resignation merely because the employee accepted redundancy or sought documentation for benefit purposes. The practical reality of who terminated the contract is decisive.

The claimant brought claims for unfair dismissal, a redundancy payment, disability discrimination and notice pay. The respondent’s response admitted both the fact and date of dismissal, and its agreed list of issues proceeded on that basis.

The Employment Tribunal nevertheless considered whether the claimant had resigned, without inviting submissions on dismissal, and held that he had not been dismissed. The claimant appealed, alleging error of law, procedural irregularity and perversity. The central issues were whether the tribunal was entitled to reconsider the admitted issue of dismissal and whether, on the facts, the contract had been terminated by the employer.

1. Appeal allowed. The Employment Tribunal erred in law by treating dismissal as an issue when the respondent had admitted it in the response form and the list of issues presupposed that dismissal had occurred.
2. The tribunal also acted with procedural irregularity. It raised and determined the issue of dismissal of its own motion without giving the claimant an opportunity to address the point. Evidence having been given on an issue does not cure the absence of an opportunity to make submissions on the legal question before judgment.
3. The respondent was correct to admit dismissal. The contract of employment had terminated, and the practical question was who had terminated it. The employer had told the claimant that he was redundant and offered alternative employment in a substantially different role. The claimant’s acceptance that redundancy was inevitable did not make him the person terminating the contract.
4. The claimant’s request for a letter to support a benefits claim did not amount to an invitation by him to terminate his employment. On the facts, the practical reality was that the respondent terminated the contract.
5. The finding that the claimant was dismissed was substituted. Since the Employment Tribunal had made no findings on the substantive issues between the parties, the matter was remitted for hearing by a freshly constituted tribunal.

• Employment Tribunal: By judgment dated 9 December 2010, held that the claimant had not been dismissed and dismissed the claims dependent on dismissal.
• Employment Appeal Tribunal: Allowed the appeal, substituted a finding that the claimant was dismissed, and remitted the matter to a freshly constituted tribunal.