England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		23 July 2003

1. LORD JUSTICE KENNEDY: This is an appeal by Wakefield Metropolitan District Council from a decision of the Employment Appeal Tribunal, presided over by His Honour Judge McMullen QC, which on 23 January 2003 allowed Mr Donlon's appeal from a decision of the Employment Tribunal and remitted the matter to the same tribunal for rehearing.
2. The issue which concerned the Employment Tribunal, and gave rise to the appeal to the Employment Appeal Tribunal, was whether Mr Donlon had initiated proceedings by making his complaint of unfair dismissal to the tribunal before the end of three months beginning with the effective date of termination of his employment, as required by Section 111 (2) of the Employment Rights Act 1996.

The Facts

3. Mr Donlon was born on 21 December 1953, so he is now 49 years of age. In April 1997 he accepted an offer of employment with the district council as Area Housing Manager for Hemsworth and South Elmsall. In 2000 problems arose and, as a result of what happened then, he was dismissed. He appealed against that decision. On 13 October 2000 a Personnel Appeal Board consisting of three elected members of the council found that his conduct in three respects amounted to misconduct, in one case serious misconduct, but did not uphold the decision that he be dismissed. The Board ordered that he receive a final written warning, to remain on the file for 12 months. He was informed by letter dated 16 October 2000 that his employment was reinstated from the date he had been given as the date of dismissal.
4. On 18 October 2000 he attended a meeting with representatives of his employers at which it was made clear to him that the employers did not envisage him returning to work as an Area Housing Manager within their Housing Department. It was said that there was a mobility clause in his contract which required the employers to consult with him regarding any proposal to move him and that was what was now being done. He was offered the post of Permanent Service Manager connected with options for the future of the housing stock, and was asked to respond by 3.00 pm on Friday 20 October 2000, after which a management decision would be made and communicated to him.
5. He wrote a letter, which we have not seen, detailing his concerns over the position of Service Manager. On 24 October Mr Dodd, the employer's Head of Housing, replied, seeking to re-assure him and inviting him to start work on the following Monday 30 October. However Mr Donlon was unwell. He was suffering from depression, and he submitted appropriate sick notes to that effect.
6. On 23 November 2000 his trade union, UNISON, wrote to the three members of the Appeal Board for clarification as to whether he should be able to return to his post as Area Housing Manager or be subjected to what was described as an enforced career change. On 30 November one of those elected members, Councillor McGowan, replied, saying, in effect, that the Board had worked within its remit.
7. On 1 March 2001 some council members met with the Chief Officer, Elaine McHale, to discuss Mr Donlon's future with the council. At the meeting it was accepted that he would not be returning to the post of Area Housing Manager, and Mrs McHale agreed to review the available options for redeployment. She so advised Mr Donlon by letter next day, and told him that when she had identified some options she would contact him again to discuss them.
8. Mr Donlon was due to go on holiday for two weeks, so a further letter dated 19 March 2001 was written by Mrs McHale suggesting a meeting on 10 April 2001, and meanwhile Mr Donlon was invited to complete a skills profile. Mr Donlon then wrote a letter dated 22 March 2001 in which he expressed his disappointment that he would not be getting his former job back, but he agreed to meet Mr McHale on 10 April. He also advised her that he was taking advice as to his position.

Pleadings

9. On 14 May 2001, with the assistance of his trade union, he completed Form ET1 which was received by the Employment Tribunal on the following day. He complained of being unfairly dismissed from his substantive post of Area Housing Manager at Hemsworth Area Housing Office, the effective date of termination being said to be 2 March 2001 because the decision of the Appeal Board to reinstate him had, he said, not been carried out.
10. The response of the employers, set out in a letter dated 1 June 2001 and in their form ET3, was that Mr Donlon never had been dismissed. Because of what had arisen it was inappropriate for him to return to his post as Area Housing Manager at Hemsworth. He had been offered, and rejected, an alternative post, and there had been ongoing discussions to find a suitable alternative post. Meanwhile he remained employed by the council. At the end of the rider which was attached to Form ET3 the council had this paragraph:

"In addition the applicant was advised shortly after the decision of the Appeal Panel in October 2000 that he was not to return to his post at Hemsworth. In this respect even if the Tribunal finds that the applicant's claim for unfair dismissal is valid the respondent contends that it is out of time."

A preliminary hearing was sought in the letter of 1 June 2001 "to consider whether this particular application has any merit".

ET: Preliminary Hearing

11. The Employment Tribunal held a preliminary hearing on 26 September 2001, and the focus was plainly not on the general question of whether there had been any dismissal at all, but just on the time issue of whether the originating application was presented within three months of the effective date of termination of employment. The tribunal accepted that Mr Donlon had been unfit for work from September 2000 to April 2001, but held that there was a decision taken at the meeting on 18 October 2000 that Mr Donlon should not return to his work as Area Housing Manager, that there was no provision for mobility in his contract of employment, and accordingly his employment was terminated on that date whatever he and his employers may have believed. It then went on to consider whether Mr Donlon could take advantage of Section 111 (2) (b) on the basis that it was not reasonably practicable for him to present his originating application before the end of the three-month period. It found against him on that issue, which is not a matter for consideration before us today.

Before the Employment Appeal Tribunal

12. There was then an appeal and a cross-appeal. The Employment Appeal Tribunal had before it a contention on behalf of Mr Donlon that he was dismissed on 2 March 2001, the date of the letter from Mrs McHale. The council, for its part, contended that Mr Donlon had never been dismissed at all, but in the alternative adopted the default position which it had set out in the rider to its Form ET3. If what it was doing in October 2000 was a repudiation of the contract of employment, that, the Employment Appeal Tribunal decided, required acceptance, and the officers of the council on 18 October had no authority to change the decision which had been made by the councillors on the Appeal Board.
13. At paragraph 14 of its determination the Employment Appeal Tribunal decided that it must set aside the decision that there had been a dismissal.
14. It reviewed the authorities dealing with repudiation and the need for acceptance and the effect of statutory intervention. It concluded that what was required was an examination by the Employment Tribunal of what had actually occurred before any conclusion could be reached about dismissal.
15. What happened on 18 October 2000, the Employment Appeal Tribunal decided, was capable of construction by it. It was, on the face of it, a proposal by the management. It was made by officers junior in status to the councillors on the Appeal Board who ordered reinstatement and so there was, on the face of the documents, no dismissal at that stage.
16. So the case was sent back by the Employment Appeal Tribunal to be heard substantively, and for the tribunal then to decide whether there had been a dismissal constructive or otherwise, and if so whether that dismissal was unfair.

Appellant's skeleton argument

17. Mr Cohen before us, on behalf of the council, submits that the Employment Appeal Tribunal erred. In order to decide if it had jurisdiction it had to find the "effective date of termination" within Section 97 of the 1996 Act. It found that date to be 18 October 2000. He does not accept, on behalf of his client, that it should have found that there was a dismissal then but only that if there was a dismissal that was when it occurred.
18. Mr Donlon appealed because he said there was only on 18 October 2000, at best, a repudiation of contract on the part of the employers and he did not accept it until 2 March 2001.
19. Mr Cohen submits that the Employment Appeal Tribunal was only entitled to interfere if there was an error of law or if the findings of fact made by the Employment Tribunal had been perverse, a contention not advanced before the Employment Appeal Tribunal. So he submits that the Employment Appeal Tribunal was wrong to set aside the finding of dismissal on the basis of what he described as a different factual scenario and by reference to common law principles of repudiation and acceptance. He submits they have no application when determining the effective date of termination for the purposes of the 1996 Act. He submits further that the Employment Appeal Tribunal was not entitled to re-construe contemporaneous documents and it is noticeable, he submits, in the skeleton argument that the Employment Appeal Tribunal never went so far as to say that the conclusion reached by the Employment Tribunal was wrong. That, as it seems to me, is entirely understandable because the Employment Appeal Tribunal was not seeking to pre-judge the issues which had to be decided at the substantive hearing.

Respondent's skeleton argument

20. On behalf of the respondents Mr Bean QC, in his helpful skeleton argument, submits that the Employment Tribunal erred in trying to take what was effectively a short cut and that the Employment Appeal Tribunal was right to remit the matter for a full hearing. He points out that at the preliminary hearing only Mr Donlon gave evidence and neither side then was contending that Mr Donlon was dismissed on 18 October 2000. It was said that there was a termination of his employment as Area Housing Manager and, according to the Employment Tribunal, "as a matter of law" that operated as a dismissal, there being no mobility clause in his contract of employment. Plainly, on the face of it, that was not a finding of fact but a conclusion of law drawn by the Employment Tribunal and therefore susceptible of consideration on appeal.

Error of Law

21. Section 95 (1) of the 1996 Act provides that for the purposes of unfair dismissal claims an employee is dismissed if -

"(a) the contract under which he is employed is terminated by the employer (whether with or without notice),

..... or

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."

Mr Bean submits that those statutory provisions cannot be applied to the events of 18 October 2000 so as to lead to a conclusion that there was a constructive dismissal. Mr Donlon could have treated what was happening at that time in such a way and could have regarded the conduct of the officers of the council as repudiatory of his contract of employment, but plainly on the evidence he did not do so. He continued to press for reinstatement until, in early March, the Chief Officer made it clear that that was not an option that was going to be available. That was when, on behalf of Mr Donlon, it is contended constructive dismissal occurred, an issue which is yet to be resolved by hearing relevant evidence in relation to it.

22. Equally, Mr Bean contends on 18 October there was plainly no outright dismissal; the employment was not then being terminated; the employee was not being told not to come again; he stayed on the payroll; he had been reinstated by the Appeal Board. The managers who were dealing with him on 18 October had no authority to dismiss him. What was being put forward, as the document makes clear, was a proposal to vary his contract to which he did not consent so it was not varied, still less was it terminated.

Conclusion

23. In my judgment, the Employment Appeal Tribunal was right for the reasons given by Judge McMullen and supported by Mr Bean. This was plainly not a suitable case for disposal at a preliminary hearing. In order to decide the issues which arise in this case it is necessary to hear both sides before any safe conclusion can be reached; first, as to whether there was at any stage a dismissal prior to the originating application; secondly, if so, when that took place; and, thirdly, whether it was unfair.
24. Accordingly I, for my part, would dismiss the appeal to this court. I add this by way of rider: I would not myself think it suitable for this matter to be considered by the Employment Tribunal which made the original determination. In my judgment, it would be far better if the matter were decided by an Employment Tribunal differently constituted.
25. LORD JUSTICE BROOKE: I agree.
26. MR JUSTICE HOLMAN: I also agree.
Order: Appeal dismissed with the costs to be subject to detailed assessment if not agreed