England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2A 2LL
		17 May 2016

1. LORD JUSTICE LAWS: This is an appeal with permission granted by Lewison LJ on 15 December 2014 against the judgment of the Employment Appeal Tribunal ("the EAT"), His Honour Judge Richardson, handed down on 24 September 2014, BAILII: [2014] UKEAT 0029_14_2409.
2. The EAT dismissed the Appellant's appeal against the determination of the Employment Tribunal of 24 May 2013. The Employment Tribunal had struck out the Appellant's unfair dismissal claim as having been presented out of time.
3. The Appellant was employed as a firefighter by the Respondent from 24 January 2006. The EAT's summary gives this crisp outline of the case:

"The Claimant was summarily dismissed for gross misconduct. His last day of service was 24 August [that is 2012]. His internal appeal was heard on 9 January 2013. The internal appeal reduced the finding from gross misconduct to misconduct. Since the Claimant was already subject to a final written warning he was still dismissed, but he was told that he would receive and did receive pay in lieu of notice. It was argued that the decision on the internal appeal changed the effective date of termination for the purposes of calculating the time limit applicable to a claim of unfair dismissal. The Employment Judge found that it did not. It was held the appeal was dismissed. The decision on internal appeal did nothing to alter the effective date of termination."

4. Section 111(2) of the Employment Rights Act 1996 provides that if it is reasonably practicable to do so, a claim of unfair dismissal must be presented "before the end of the period of three months beginning with the effective date of termination". The EDT, to use the acronym, which has been described as a "statutory construct" is provided for by section 97(1) of the 1996 Act as follows:

"Subject to the following provisions of this section, in this Part "the effective date of termination" -

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires

(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect..."

I may break off there.

5. The Appellant was summarily dismissed on 24 August 2012 and that was the last day he worked. He was informed of his internal right of appeal by letter of 5 September 2012 and exercised it. The appeal hearing was at first scheduled for 23 November 2012, but the Appellant was unable to make that date and so it was re-fixed for 9 January 2013. On that day the decision maker, Assistant Commissioner Knighton, announced his decision at the end of the hearing as follows:

"I am satisfied that the charges are proven on the balance of probabilities. At the same time, my view is that the charges are proven as misconduct rather than gross misconduct taking into account the way the charges were worded in advance of the original stage 3 hearing. As you were already on a final written warning, this does not alter the fact that the penalty is dismissal and therefore I do not uphold your appeal. However, it does mean you will be entitled to notice pay and arrangements will be made for this to be paid to you. I will confirm my decision in writing and aim to do this within seven days. This decision is final. There are no further internal avenues for appeal."

6. The promised confirmatory letter is dated 18 January 2013 and states:

"The notes of the appeal also confirm my decision and rationale. I upheld the decision of DAC Orbell to find the charges proven. However, my finding is that the charges amounted to misconduct and not gross misconduct. Nevertheless, as you had a live final written warning on your file at the time of the original hearing, in finding the charges proven as misconduct I confirmed the decision of dismissal. Whilst your last day of service remains as 24 August 2012, you are now entitled to six weeks pay in lieu of notice."

7. The Appellant presented his claim to the Employment Tribunal on 3 January 2013, six days before the internal appeal hearing, alleging unfair dismissal, race discrimination and disability discrimination. Accordingly if, as the Employment Tribunal and the EAT found, his EDT was 24 August 2012 his claim was not presented within the three month period and the tribunal had no jurisdiction to entertain it. It is not now suggested that it was not reasonably practicable for the Appellant to present the claim within three months of 24 August 2012.
8. The Appellant by Mr Williams of counsel says that his EDT was either 5 October 2012 on the footing that that was when the six week notice period would have expired or shortly after the internal appeal decision on 9 January 2013 when he received his pay in lieu of notice. In either of those events, his application to the tribunal would have been in time.
9. The Appellant advances two alternative positions as regards the identification of the EDT: (1) given the employers' findings on the internal appeal, the case should be treated as falling under section 97(1)(a) so that the Appellant is to be taken as having been dismissed with notice and his EDT falls at the end of the six week notice period.

(2) Alternatively if, as the Employment Tribunal and the EAT held, this was indeed a dismissal without notice, then because the internal appeal held that that was wrongly done "the date on which the termination takes effect" within the meaning of section 97(1)(b) should be taken to be the date when the Appellant accepted the employers' repudiatory breach of contract and that was the date when he accepted payment in lieu of notice.

10. Mr Williams seeks to support his first position on two grounds, his first two grounds of appeal. They are (1) the 1996 Act should be construed so as to promote and uphold employees' rights and (2) the Appellant's contract of employment should be taken as having been revived by force of the appeal decision.
11. It is common ground that the employee's EDT can be retrospectively altered by the employers' decision on an internal appeal: see Hawes & Curtis Ltd v Arfan [2012] ICR 1244. It is plain that, leaving out of account any effect of the Appellant's later internal appeal, the Appellant was summarily dismissed on 24 August 2012. The question here is whether in the circumstances of the case the outcome of the appeal should be taken to have made a difference.
12. The Appellant's first ground in support of the proposition that this falls to be treated as a section 97(1)(a) case calls attention to the decision of the Supreme Court in Gisda Cyf [2010] ICR 1475. In that case the Supreme Court followed and applied the emphasis placed by Mummery LJ in this court on the true focus of the 1996 Act, which was to safeguard and protect the rights of employees. Mr Williams this morning took us to a number of passages. I will refer to one cited by His Honour Judge Richardson in the present case. Lord Kerr said this:

"37. We do not consider, therefore, that what has been described as the "general law of contract" should provide a preliminary guide to the proper interpretation of section 97 of the 1996 Act, much less that it should be determinative of that issue. With the proposition that one should be aware of what conventional contractual principles would dictate we have no quarrel but we tend to doubt that the "contractual analysis" should be regarded as a starting point in the debate, certainly if by that it is meant that this analysis should hold sway unless displaced by other factors. Section 97 should be interpreted in its setting. It is part of a charter protecting employees' rights. An interpretation that promotes those rights, as opposed to one which is consonant with traditional contract law principles, is to be preferred...

41. The essential underpinning of the appellant's case, that conventional principles of contract law should come into play in the interpretation of section 97, must therefore be rejected. The construction and application of that provision must be guided principally by the underlying purpose of the statute viz the protection of the employee's rights. Viewed through that particular prism, it is not difficult to conclude that the well established rule that an employee is entitled either to be informed or at least to have the reasonable chance of finding out that he has been dismissed before time begins to run against him is firmly anchored to the overall objective of the legislation."

13. Mr Williams says that the conclusion of the Employment Tribunal and the EAT that the Appellant's EDT remained 24 August 2012:

"will undermine the protection of employment rights by allowing an employer to use a wrongful device to defeat an employees' right to bring a claim of unfair dismissal."

The citation is from paragraph 30 of his skeleton. He expanded upon that argument before us this morning.

14. The decision below, it is said, is:

"akin to allowing employers to take advantage of the vulnerability of employees and abuse the obvious inequity of being the decision maker in an appeal process as well as undermining the integrity of new decisions and sanctions that appeal."

15. The conclusions of the Employment Tribunal and the EAT are said, moreover, to offend Lord Hope's dictum in Geys [2013] 1 AC 523 at paragraph 15:

"Where there is a real choice as to the direction of travel, the common law should favour the direction that is least likely to do harm to the injured party. I agree that we should be very cautious before reaching a conclusion whose result is that a breach is rewarded rather than its adverse consequences for the innocent party negatived."

16. Up to the date of his appeal the Appellant can surely only have understood that he had been dismissed on 24 August 2012. He had three months from that date to bring his claim in the Employment Tribunal. There is no suggestion that it was not reasonably practicable for him to do so. It appears that he delayed because of bad advice from his trade union: see his witness statement paragraphs 3 and 8.
17. In fact, he brought his claim on 3 January 2013 before the internal appeal. It follows that nothing which occurred at the hearing of the internal appeal drove the date on which he presented his claim to the Employment Tribunal. Right up until he did so on 3 January 2013 he can only have thought that he had been dismissed on 24 August 2012. The fact that he was late in bringing that claim has nothing whatever to do with anything that happened on 9 January.
18. No unjust disadvantage is or was occasioned to the Appellant by the conclusion that his EDT was 24 August. Of course, if an EDT is changed to a later date by a force of something that happens at an internal appeal then the expiry of the employee's limitation period is likewise postponed, but that does not suggest, far less demonstrate, that in a case where that does not occur the employee suffers any unfairness.
19. Mr Williams' further submission that the employers have no business paying PILON (payment in lieu of notice) does not, in my judgment, advance the matter. Nothing in this case prejudiced the Appellant's statutory rights, save his trade union's bad advice.
20. Moreover, it is clear, in my judgment, that the conclusion of the tribunals below was entirely correct given the law as it stands. Robert Cort [1981] ICR 816, a decision of the EAT, is, as Rimer LJ stated in Kirklees v Radecki [2009] ICR 1244 at paragraph 37:

"authority for the proposition that where an employee is dismissed summarily the EDT of his employment for the purposes of what is now section 111 of the 1996 Act is the date of the summary dismissal and it makes no difference that the dismissal might have amounted to a repudiatory breach of the employment contract such that the employee might be entitled to bring a claim for damages in respect of such dismissal."

21. Robert Cort was approved by this court in Stapp [1982] IRLR 326 as well as in Radecki. Substantial passages of the judgment of Browne-Wilkinson J (as he then was) presiding over the EAT in Cort are set out by Judge Richardson in the EAT in the present case at paragraph 26. I will not, with respect, repeat them at this stage. Robert Cort precisely covers this case and it has stood, as I have said, with this court's approval since it was decided.
22. This aspect of course engages Mr Williams' second ground of appeal, namely that the Appellant's contract was revived by the internal appeal with the consequence that the EDT is postponed. Gisda Cyf does not drive such a result. Mr Williams says that the result of the Cort decision is that employees' rights are denied. I cannot see that that is so, certainly on the present facts. The identification of the EDT is a question of fact. It did not in the circumstances of this case shift by reason of anything that occurred on the internal appeal; quite the contrary.
23. Mr Williams has suggested that the Supreme Court decisions in Gisda Cyf and Geys show that Robert Cort was wrongly decided or that issues have arisen such that we are not obliged to follow it, but Gisda Cyf is wholly consonant with Robert Cort. It leaves the interpretation of section 97 as an autonomous issue unchallenged by the conventional or general principles of law of contract. It allowed for the possibility that the date of an employment contract's termination for the purpose of a common law wrongful dismissal claim might be different in some circumstances from the EDT under section 97.
24. Geys was wholly concerned with common law contractual questions. There was no issue there as to the application of the EDT under section 97; indeed, no issue under the Employment Rights Act 1996 at all. Robert Cort was simply not considered. That was so in Geys where the Supreme Court held that a repudiatory breach of an employment contract would not terminate the contract unless and until the innocent party elected to accept the repudiation. This does not bear at all on the interpretation of statutory rights arising under the 1996 Act.
25. We should therefore, in my judgment, follow the reasoning in Robert Cort, given not least its approval in this court. In those circumstances, it seems to me inevitable that given the result of the internal appeal 24 August 2012 remains the EDT for the purposes of the Appellant's tribunal claim.
26. It is in the end a question of fact and the facts are, with respect to Mr Williams, all one way. The EAT said this at paragraph 30:

"Nothing happened to change the date of dismissal. The employment judge's finding to this effect at paragraph 7 of his reasons was, in my view, plainly correct. The internal appeal was not allowed. The dismissal was expressly confirmed. The decision on appeal did nothing to alter the date of dismissal. Assistant Commissioner Knighton said only that there would be an entitlement to notice pay. Contrary to Mr Williams' submission, I would regard this as plain from the minutes of the appeal hearing themselves. In any event, the Claimant was told to expect a letter by way of confirmation and the letter is explicit. The last day of service was to remain at 24 August. The date of dismissal remained the same."

27. As a matter of semantics I can understand Mr Williams' objection to the statement that the internal appeal was not allowed, but in substance this reasoning is wholly correct.
28. Mr Williams has relied on some other learning. Roberts [2004] IRLR 788 is no more than an example of a dismissal being nullified (I do not use the term with any of the metaphysical overtones which have beset its use in the common law) by an appeal decision which substitutes a sanction other than dismissal. Other cases cited at paragraph 47 of his skeleton and referred to by him this morning take the matter no further.
29. There is nothing here to displace the conclusion that, given the law as stated in Robert Cort, this was a case in which the EDT as a matter of fact was and remained the date of the Appellant's original dismissal. This is and was always a section 97(1)(b) case.
30. I turn to what I have called the Appellant's second position and Mr Williams' third ground. As I have indicated, the proposition here is that even if this was a dismissal without notice still the EDT should be taken as the date when the Appellant accepted the employer's repudiatory breach of contract by taking the payment in lieu.
31. But this argument too falls foul of the Robert Cort decision. Browne-Wilkinson J in that case proceeded in terms on the assumption that what he called the "acceptance" view of an employment contract's termination was correct. Even so, he held that the EDT in a section 97(1)(b) case (in fact he was dealing with the predecessor statute) was the date of actual dismissal. He said this:

"We will assume, without deciding, that the acceptance view is correct and that, where an employer dismisses an employee without giving the length of notice required by the contract, the contract itself is not thereby determined but will only be determined when the employee accepts the repudiation...

(3) Section 55(4)(b) [I interpolate the predecessor of section 97(1)(b)] defines the effective date of termination as being the date on which "the termination takes effect." The word "termination" plainly refers back to the termination of the contract. But the draftsman of the section does not refer simply to the date of the termination of the contract, but to the date on which the termination "takes effect." As we have pointed out, even on the acceptance view the status of employer and employee comes to an end at the moment of dismissal, even if the contract may for some purposes thereafter continue. When dismissed without the appropriate contractual notice, the employee cannot insist on being further employed: as from the moment of dismissal, his sole right is a right to damages and he is bound to mitigate his damages by looking for other employment. We therefore consider it to be a legitimate use of words to say, in the context of section 55, that the termination of the contract of employment "takes effect" at the date of dismissal, since on that date the employee's rights under the contract are transformed from the right to be employed into a right to damages.

(4) We consider it a matter of the greatest importance that there should be no doubt or uncertainty as to the date which is the "effective date of termination." An employee's rights either to complain of unfair dismissal or to claim redundancy are dependent upon his taking proceedings within three months of the effective date of termination... These time limits are rigorously enforced. If the identification of the effective date of termination depends upon the subtle legalities of the law of repudiation and acceptance of repudiation, the ordinary employee will be unable to understand the position. The Dedman rule [I interpolate that is a reference to an earlier Court of Appeal case] fixed the effective date of termination at what most employees would understand to be the date of termination, i.e. the date on which he ceases to attend his place of employment."

32. I have seen nothing from first to last to show that this is in the least erroneous and it seems to me that Mr Williams' third ground, like his first two, should fail.
33. For all the reasons I have given, I would dismiss the appeal.
34. LADY JUSTICE KING: I agree.
35. LORD JUSTICE LINDBLOM: I also agree.