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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Lamey v Queen's University Belfast [2014] NIIT 871_14IT (21 August 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/871_14IT.html
Cite as: [2014] NIIT 871_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 871/14
CLAIMANT: Professor Phillip John Lamey
RESPONDENT: Queen’s University Belfast
DECISION
The unanimous decision of the tribunal is that the claim of wrongful dismissal, seeking payment of notice pay from the respondent is dismissed.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mr R Hanna
Ms D Adams
Appearances:
The claimant was represented by Mr S Hills, Solicitor, of Gateley LLP, Solicitors.
The respondent was represented by Mr P Gillen, Solicitor, of Pinsent Masons LLP, Solicitors.
The issue
1. The claimant was employed by Queen’s University Belfast (‘QUB') and by Belfast Health & Social Care Trust (‘the Trust’) as Professor of Oral Medicine. His contract was terminated by the Trust on three months’ notice in accordance with the Memorandum of Agreement which had set up the appointment. That notice was given by letter dated 22 November 2013 to expire on 22 February 2014. The claimant claims that the contract of employment should also and separately have been terminated by QUB on three months’ notice in accordance with that Memorandum. The claimant argues that a letter dated 12 February 2014 from QUB constituted such notice and that the alleged required period of three months’ notice overlapped with the period of notice given by the Trust by some 10 days. He argues that he is contractually due notice pay for the remainder of a three month period to expire on 12 May 2014. He therefore claims notice pay amounting to approximately £24,000.00.
This is therefore essentially a contractual claim. The issue is:-
“Whether the claimant was contractually entitled to a separate termination on notice from QUB and, if so, what period of notice was required and was any such notice given?”
The hearing
2. There was very little dispute about the relevant factual background to this case and the hearing consisted largely of legal submissions on behalf of the claimant and the respondent. However, the tribunal also heard evidence from Mr Sean McGuickin, the respondent’s Director of Human Resources.
Relevant findings of fact
3. The claimant had originally been jointly appointed and jointly employed by Queen’s University Belfast and the Eastern Health & Social Services Board (now the Belfast Health & Social Care Trust and referred to in this decision as ‘the Trust’) to hold the position of Professor of Oral Medicine.
4. That joint appointment and employment was set out in a Memorandum of Agreement made on 25 November 1992 between QUB, the Trust and the claimant. The joint employment took effect from 1 October 1992. Contrary to biblical injunction (Matthew 6.24) the claimant from that point served two masters. That arrangement was perfectly legal but inevitably gave rise to complications. The Memorandum should have been carefully agreed and drafted to minimise those complications; this was not done.
5. It is absolutely plain in the terms of the Memorandum that this was a joint appointment to a joint employment. The Memorandum stated:-
“WHEREAS the University and the Board [tribunal’s note : originally the Eastern Health & Social Services Board now the Trust] have agreed that the Professor shall be employed jointly by the University and the Board as Professor for Oral Medicine AND WHEREAS the Professor has agreed to accept a whole time appointment jointly with the University and the Board ... .”
6. The Memorandum referred throughout to ‘the joint appointment’. For example, it stated:-
“The salary attached to the joint appointment shall be on the scale ... per annum.”
7. The Memorandum provided that the claimant would be paid his salary by QUB and would be superannuated under the University’s Scheme. The Trust would then reimburse QUB in respect of its portion of salary and superannuation costs. This portion was 50% of those costs.
8. The Memorandum, at Paragraphs 6 and 7, set out the claimant’s contractual duties owed respectively to QUB and the Trust. Paragraph 6 set out the academic duties owed to QUB. These included research, instruction, examination and administrative work. The preface to that paragraph made it plain that the academic duties were to run together with the clinical duties owed to the Trust. It stated:-
“The Professor’s duties to the University (concurrent with his duties to the Board referred in Paragraph 7 below) shall be as follows ... .”
9. Paragraph 7 of the Memorandum set out the clinical duties owed by the claimant to the Trust. It referred to clinical duties totalling 21 or more hours per week in the field of dentistry. Again Paragraph 7 made it plain that the clinical duties assigned under this Memorandum were to run together with the academic duties referred to above. Paragraph 7 stated:-
“The Professor, as officer of the Board (concurrent with his duties to the University referred to in Paragraph 6 above) shall be required to engage on clinical duties ... .”
10. The nature of the joint employment or appointment was described in evidence and in the submissions as a ‘clinical academic’ post. Such a post involves a significantly higher salary than the salary applicable to an ordinary academic post. The basic salary for this clinical academic post on termination, leaving out additional clinical awards, was £101,000.00 per annum approximately.
11. The nature of the joint employment meant that the two parts of the arrangement were interdependent and could not exist separately under the terms of the Memorandum. The Memorandum contemplated only a joint employment; it did not provide for a purely clinical role or for a purely academic role in any circumstances. The tribunal accepts the evidence of Mr McGuickin, which was not seriously challenged, that the claimant or any other person holding a clinical academic post could not properly supervise or train dental students if he did not simultaneously hold a clinical role with the Trust.
12. That does not mean that it would not have been open to QUB and the claimant, if both parties wished, to have negotiated alternative arrangements for a purely academic and more limited role. However, that was not the arrangement contemplated or permitted under the terms of the Memorandum. If it were to be negotiated, and if it were to exist, it would have been a matter for a separate contractual arrangement. It would also have involved a significantly lower salary. The fact that such negotiations or discussions occurred between QUB and the claimant, but did not reach a result, does not appear to the tribunal to be significant.
13. Following concerns about the claimant’s clinical practice, the Trust gave three months’ notice of termination of the contract of employment. That notice of termination was given on 22 November 2013. The notice referred to:-
“the termination of your contract of employment in accordance with Clause 18 of the Memorandum of Agreement dated 25th November 1992 between QUB, the EHSSB and yourself.
14. The notice did not purport to terminate part only of the joint employment. It did not suggest that a contract between QUB and the claimant was in some way severable from the joint employment arrangements and that it remained intact.
15. The claimant was paid and he accepted payment of his full salary as notice pay during that three month period. It does not appear that the claimant argued, at that point, that part only of the contract had been terminated and that therefore part only of his salary should be paid by way of notice pay with the rest remaining as ordinary salary.
16. The Trust notified QUB on 4 December 2013 of its decision to terminate the contract of employment. Again, the Trust did not purport to give notice of termination of part only of the joint employment. In its communication with QUB it referred to:-
“the termination of his contract of employment in accordance with Clause 18 of the Memorandum of Agreement dated 25th of November 1992 between QUB, EHSSB and Professor Lamey.”
17. For whatever reason the Trust did not share with QUB full details of its decision to terminate the joint employment. It, however, indicated on 20 December 2013 that it was content that the claimant should be removed from the QUB payroll at the end of the three month notice period on 22 February 2014. Again, it did not tell QUB that it should simply cease the Trust’s reimbursement arrangement from that date. The Trust and QUB were operating on the premise that the joint employment and not just part of that joint employment had been terminated on notice and that that notice ran from 22 November 2013 until 22 February 2014.
18. QUB wrote to the claimant on 17 January 2014 to confirm its view that the entire and joint contract of employment had been terminated. It stated:-
“Have carefully considered the Memorandum of Agreement, and that the duties carried out by you for the Trust and University are intrinsically linked, the University considers that, in compliance with Clause 18, the University is left with no reasonable alternative but to conclude that the entire contract of employment be terminated.
As the Trust has terminated your employment, it is reasonable to conclude that you will no longer be able to undertake clinical duties. As a direct consequence of this, it is also considered you will be unable to effectively undertake related academic duties associated with your contract of employment related to teaching, tutoring and undertaking clinical research. The University considers this also provides a basis to conclude that there is no reasonable alternative but to cease your employment.”
19. The claimant was allowed to make representations. He did so. Following scheduling difficulties, the claimant made those representations at a meeting on 12 February 2014. He was represented at that meeting by Mr Craig of the Medical Defence Union. QUB wrote to the claimant on the same date confirming its position. It stated:-
“Turning to the substantive issues, the panel concluded that the actions taken by the BHSCT in giving both you and the University notice of termination of the contract on 22nd November 2013, left the University no real choice but to confirm the termination of your contract.
We also gave consideration to the representations made that the University should manufacture a Specialist Adviser role, whereby you could undertake related clinical academic work, without having access to patients or the ability to work in a normal clinical environment. I would advise that we consider such a proposed course of working to be unrealistic, and that it would limit the academic experience of dental students.
My colleagues and I also gave consideration to the suggestion that you should be redeployed into one of the three clinical academic vacancies which currently exist. These three vacancies are in the clinical specialism of Restorative Dentistry, and the successful appointees would be required to be clinically recognised by the BHSCT. In these circumstances, we concluded it unrealistic to redeploy you into any of these positions.
Having carefully considered all of the information available, I must advise you that my colleagues and I concluded that we would confirm the termination of your contract of employment with effect from the 22nd of February 2014. You have the right of appeal against the decision ... .”
It is notable that QUB did not purport to give a new or a separate notice of termination. It simply confirmed the existing notice of termination given by the Trust.
20. The claimant appealed through his then solicitors, Carson McDowell, against the decision of QUB. He argued that QUB should have awaited the outcome of an appeal from Professor Lamey against the decision of the Trust and that the termination of his employment was in breach of the Memorandum. He also argued that QUB should have arranged alternative employment in an academic role for the claimant.
21. The appeal was heard on 20 March 2014 and was not upheld.
Relevant law
22. This is a case which concerns the proper interpretation of the contract of joint employment. This contract was expressed in written form in the Memorandum of Agreement dated 25 November 1992. The principles relating to the proper construction of contracts have been set out in case law. The tribunal was not referred to any such case law during the hearing by either party to this dispute.
23. The broad principles relating to the proper interpretation of contracts in these circumstances were set out most recently in the case of Napier Park European Credit Opportunities Fund Ltd v Harbour Master Pro-Rata Clo 2 BV & Others [2014] EWHC 1083 (CH). At Paragraph 37, although it is expressed as related to the facts of that particular case, the decision gives a broad summary of those principles which are relevant to the present case:-
The fourth point, as set out above, appears to the tribunal to be of particular relevance in the present circumstances.
24. In Chartbrook Ltd v Persimmon Homes Ltd & Others [2009] UKHL 38, the House of Lords stated at Paragraph 14 and 15:-
“14. There is no dispute that the principles on which a contract (or any other instrument or utterance) should be interpreted are those summarised by the House of Lords in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] ALL ER 98 [1998] 1 BCLC 493, [1998] 1 WLR 896, 912 - 913. They are well known and need not be repeated. It is agreed that the question is what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. The House emphasised that ‘we do not easily accept that people have made linguistic mistakes, particularly in formal documents’ ... but said that in some cases the context and background drove a court to the conclusion that ‘something must have gone wrong with the language’. In such a case, the law did not require a court to attribute to the parties an intention which a reasonable person would not have understood them to have had.
15. It clearly requires a strong case to persuade the court that something must have gone wrong with the language and the judge and the majority of the Court of Appeal did not think that such a case had been made out. On the other hand, Lawrence Collins LJ thought it had. It is, I am afraid, not unusual that an interpretation which does not strike one person as sufficiently irrational to justify a conclusion that there has been a linguistic mistake will seem commercially absurd to another: compare the Kirin-Amgen case [2005] RPC 169 at pp. 189 - 190. Such a division of opinion occurred in the Investors Compensation Scheme case itself. The subtleties of language are such that no judicial guidelines or statements of principle can prevent it from sometimes happening. It is fortunately rare because most draftsmen of formal documents think about what they are saying and use language with care. But this appears to be an exceptional case in which the drafting was careless and no one noticed.”
25. The House of Lords went onto state:-
‘Two conditions must be satisfied: first, there must be a clear mistake on the face of the instrument; secondly, it must be clear what correction ought to be made in order to cure the mistake. If those conditions are satisfied, then the correction is made as a matter of construction’.
23. Subject to two qualifications, both of which are explained by Carnwath LJ in his admirable judgment in KPMG LLP v Network Rail Infrastructure Ltd [2007] EWCA Civ 363, I would accept this statement, which is in my opinion no more than an expression of the common sense view that we do not readily accept that people have made mistakes in formal documents. The first qualification is that ‘correction of mistakes by construction’ is not a separate branch of the law, a summary version of an action for rectification. As Carnwath LJ said (at p. 1351, para 50):
‘Both in the judgment, and in the arguments before us, there was a tendency to deal separately with correction of mistakes and construing the paragraph ‘as it stands’, as though they were distinct exercises. In my view, they are simply aspects of the single task of interpreting the agreement in its context, in order to get as close as possible to the meaning which the parties intended.’
24. The second qualification concerns the words ‘on the face of the instrument’. I agree with Carnwath LJ (at pp 1350 - 1351) that in deciding whether there is a clear mistake, the court is not confined to reading the document without regard to its background or context. As the exercise is part of the single task of interpretation, the background and context must always be taken into consideration.
26. A separate issue arose which was not raised by either party during their legal submissions in the course of this hearing, although it had been raised in the original claim form. That issue relates to the insertion into the contract of employment by statute of a minimum period of notice. The original claim form stated:-
“The claimant submits that he has been wrongly dismissed contrary to Article 118(1)(c) of the Employment Rights (Northern Ireland) Order 1996. The claimant was employed by the respondent for more than 12 years and was therefore entitled to not less than 12 weeks’ notice from the respondent; and the respondent gave only 10 days’ notice to the claimant.”
It is apparent from that part of the claim form that the claimant is arguing that the letter from QUB dated 12 February 2014 constituted a notice of termination for the purposes of the contract, both as that contract was originally worded and as including any insertion by statute.
27. The tribunal is not able to understand why this part of the claim was apparently simply forgotten about and was not raised in the course of the hearing. Coupled with the total lack of any reference to case law, the approach of the parties to this matter has been less than helpful.
28. Article 118(1)(c) of the Employment Rights (Northern Ireland) Order 1996 provides:-
“(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more —
...
(c) is not less than twelve weeks' notice if his period of continuous employment is twelve years or more.”
29. The word ‘employer’ is defined in Article 3(4) of the 1996 Order as:-
“(4) In this Order ‘employer’, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.”
The legislation therefore refers to a single employer. There is no reference to joint employers.
30. Any claim to this tribunal in respect of a failure to pay notice as required and inserted by the 1996 Order is an action for wrongful dismissal (notice pay) and it is not a freestanding and separate action for breach of a specific statutory duty. In Westwood v Secretary of State for Employment [1985] ICR 209, the House of Lords approved an earlier EAT decision in Secretary of State for Employment v Wilson [1978] ICR 200 and quoted from it as follows:-
“Those provisions in the scheme of the Act of 1972 generally, suggest to us that the intention of the Act is to incorporate into the contract of employment the statutory terms laid down by the Act, and that an employee who wished to enforce them would sue upon his contract of employment as statutorily amended and not upon the statute. A contrary view is possible, but the matter seems to us to be put beyond doubt by Section 3 which deals specifically, according to the side note, with the ‘measure of damages in proceedings against employers’. Section 3 provides:
‘If an employer fails to give a notice required by Section 1 of this Act, the rights conferred by Section 2 of this Act (with Schedule 2 of this Act) shall be taken into account in assessing his liability for breach of the contract.’
This Section plainly assumes that if an employer fails to give the notice required by Section 1 the remedy for the employee is to proceed by way of a claim for damages for breach of contract and that in those proceedings when quantifying his loss the rights conferred by Section 2 (in this case to be paid during the period of notice) will taken into account. If this is right, and if the employee’s remedy is of that kind, it seems to us that it must follow that the amount of damages fall to be reduced by earnings of the employee during the period of notice.”
31. The provisions in Part X of the 1996 Order appear to be analogous to the provisions considered by the House of Lords in Westwood. The amount of damages therefore is not automatic. These damages do not automatically equate to the amount of net pay which would otherwise fall due under the contract. The measure of damages is the amount of earnings which the employee would otherwise have earned less any mitigation. If the employee could have earned nothing, because the joint employment had already ceased and was not severable, nothing is payable by way of damages.
32. The House of Lords in Westwood stated:-
“ ... the conclusion is, to my mind, clear that a claim for failure to give notice under Section 51 is a claim for wrongful dismissal, the only breach of contract which the Section can possibly have in contemplation, and that the liability of the employer for that breach of contract is a liability in damages, calculated with regard to the amount the dismissed employee could have earned in accordance with his rights conferred by Section 50 and Schedule 3 if he had been given due notice, but subject to the duty of mitigation.”
Decision
The original wording of the Memorandum
33. Paragraph 18 of the Memorandum deals with the termination of the joint employment. It provided:-
“The Professor will be required to retire at the end of the academic year (30th September) in which he attains the age of 65 years. The appointment shall not otherwise be terminated, except by agreement between the parties, unless each party has given the others at least three months’ notice in writing of the date on which the termination is to take place.”
34. The Memorandum therefore contemplated termination of the contract in three different scenarios. The first scenario is the obvious one where the claimant reached retirement age. That is irrelevant to the present circumstances. The second scenario is where the appointment is terminated by agreement. That is again irrelevant to the present circumstances.
The third scenario is where, according the Memorandum, each party has given the others at least three months’ notice in writing of the termination date.
35. The term ‘party’ is not specifically defined in the Memorandum. However, the Memorandum starts off in Dickensian fashion by referring to QUB as ‘of the first part’, the Board (now the Trust) as ‘of the second part’ and the claimant as ‘of the third part’. It therefore seems clear that the Memorandum had, of necessity, identified the three parties to the arrangement; QUB, the Trust and the claimant.
36. Looking at the wording of Paragraph 18 of the Memorandum literally, the Memorandum would require in the third scenario envisaged above, that QUB, the Trust and the claimant should give each other notices of termination for presumably the same date at the same time to terminate the contract. On the literal wording of the Memorandum it would not be sufficient if, for example, the claimant had terminated the joint employment by notice. The literal wording would require not just a notice of termination from him but notices of termination from each of the parties. Equally, the literal wording of the Memorandum would not allow termination of the joint employment by either one or by both of the joint employers by notice. The literal wording of the Memorandum would also require not just notices of termination from QUB and/or the Trust; but also from the claimant.
The literal wording of the Memorandum is therefore a nonsense. It effectively contemplates a situation where the three parties, ie the two joint employers and the employee, would join together to issue notices of termination to each other. It simply repeats the second scenario, ie termination by agreement.
37. In discussion, in the course of the hearing, it was accepted by all parties that the wording of Paragraph 18, where relevant to the circumstances of this case, ie relating to the third scenario, made no sense at all. The literal wording of the third scenario, relating to termination not by retirement, and not by agreement, but by notice, cannot be what the parties intended.
38. The claimant argued that the only common sense interpretation to be applied to the Memorandum was one which required separate notices of termination from both joint employers to effectively terminate the joint employment. The argument from QUB was, unsurprisingly, that the only sensible interpretation of the Memorandum was that it required, in the circumstances of a joint employment, simply a notice of termination by one of the two joint employers or a notice of termination from the employee.
39. The tribunal was therefore faced with a written contractual provision which made no sense and which could not have been intended by the parties. In the context of Paragraph 18, it cannot be the case that the contracting parties intentionally bound themselves to an arrangement where the contract of joint employment could only be terminated on notice where all three parties issued notices. The possibility of termination by agreement was already contemplated and was already provided for in the second scenario set out in Paragraph 18 of the Memorandum. That Memorandum, when going further and setting out the third scenario must have contemplated something different; ie a scenario where termination was otherwise than by agreement between the parties and where it was on three months’ notice.
40. The claimant’s representative relied strongly on the construction contra proferentem rule. In other words, the claimant’s representative relied on the general rule of construction that where there is an ambiguity in a contractual term it should be construed against the makers of the contractual document. The tribunal has heard no evidence in relation to the precise circumstances in which the Memorandum was drawn up and agreed in 1992. The tribunal therefore has no evidence on which it could safely conclude that there was any imbalance in arms between the three parties to that Memorandum. However, this is not, in any event, the sort of case where a contract of employment is between, for example, a large supermarket and a 16 year old shelf stacker. This was an arrangement between three parties, each with access to its own legal and contractual advice. The claimant had already held senior roles and had access to the BMA and indeed to his own legal advice. The weight to be attached to the contra proferentem rule in these circumstances, while it stills needs to be considered, is perhaps less than it otherwise might have been in different circumstances. This was not a contractual arrangement which was foisted on a junior individual who could not in reality have queried anything.
41. This is also not a situation where there is a simple ambiguity in the contractual terms; ie where there is a choice between two reasonable interpretations of the literal wording setting out the third scenario in Paragraph 18. There is no reasonable interpretation at all which can be placed on the literal wording of that paragraph. The wording is clear. On its face, the Memorandum permits termination by notice to occur only where all three parties issues notices of termination to each other; hopefully with the same termination date, effectively replicating the second scenario which has already been set out in Paragraph 18.
The tribunal is satisfied that this is one of those rare occasions contemplated in Chartbrook (see above) where a linguistic mistake has occurred in a formal document. In 1992, none of the three parties noticed the mistake. It did not become apparent until the Trust issued a notice of termination.
42. This is also a situation where, on one side of the contractual relationship are two employers acting jointly. On the other side of the contractual relationship is the employee, the claimant. The nature of the joint employment contemplated by the Memorandum is of two inextricably linked employments where the Memorandum did not contemplate or allow for a separate and purely academic employment or, indeed, a separate and purely clinical employment.
Therefore the only sensible way to read this document is for ‘each party’ in the penultimate line of Paragraph 18 to be read as referring to either the claimant or to one or other of the joint employers, ie to refer to a party on either side of the contractual arrangement.
43. In Chartbrook Ltd v Persimmon Homes Ltd & Others [2009] UKHL 38, Carnwath LJ stated:-
The background to clinical academic appointments, as put forward by Mr McGuickin, and as accepted by the tribunal, is that they constitute joint employments where the withdrawal of one employer from the arrangement inevitably leads to a complete termination of the joint employment.
44. It is clear to the tribunal that the only intended contractual provision relating to termination of the contract on notice could have been one where notice could have been given by either of the joint employers, or by the employee.
The alternative contended for by the claimant would make no sense at all. It would require notices of termination on the same date, giving the same termination period, from the two joint employers to the claimant and to each other. If that was not done, on the claimant’s argument, the contract would continue indefinitely with accruing liability for full salary until the second and joint employer had issued a notice of termination and until that period of notice had expired. That could occur for a period, possibly quite a lengthy period, in which performance of the arrangement contemplated in a Memorandum was impossible and had been frustrated. It would also occur where three months’ full salary by way of notice pay had been paid and had been accepted by the claimant. The interpretation argued for the claimant would also permit the claimant to terminate, at his own election, part only of an inextricably linked joint employment and to insist on payment of the salary for a purely academic or purely clinical role. None of that, on any reasonable interpretation of the contractual terms and contractual agreement between the parties, could have been part of the legal arrangement.
45. This is a similar situation to that in Ulster Bank Ltd v Lambe [2012] NIQB 31 where Weatherup J did not regard it as necessary to have formal rectification proceedings. He was dealing with a situation where a plaintiff had mistakenly offered to settle an action for a named sum but had expressed that sum in Euros rather than in Sterling. Weatherup J treated the reference to Euros as an obvious mistake and enforced the settlement accordingly in Sterling.
In the present case the Memorandum carelessly used the words ‘each party shall give the others etc’ where the obvious and only meaning would have been ‘a party shall give the others etc’. As in Pantiles (Plant Hire) case (see above) the mistake in language is clear and the necessary correction is also clear. The tribunal therefore concludes that the Memorandum must be read with that correction.
46. Essentially what the claimant is seeking in these circumstances is to rely on a strange and artificial interpretation of a contractual arrangement whereby he would receive a windfall, and a substantial windfall, of notice pay where that was clearly not the arrangement intended and agreed between the parties in 1992.
47. The unanimous decision of the tribunal is that the original wording of the Memorandum, after the correction of a mistake by construction, did not require a separate notice of termination from QUB and the claim of wrongful dismissal, as argued in the claimant’s submissions, fails.
The Memorandum as amended by Article 118(1)(c) of the 1996 Order
48. The statutory provisions set out in Article 118(1)(c) set out a minimum period of notice which is added to the contract of employment as expressed in the Memorandum. The question is whether that statutory addition or amendment superimposes a requirement for separate notices of termination. The 1996 Order refers to a single employer. The contract, as rectified by construction, provides for notice of termination to be given by ‘a party’ to the other parties. One of the joint employers can therefore terminate the contract by notice to the other parties. That occurred in this case. That is consistent with the statutory amendment which provided an unnecessary minimum and slightly shorter period of notice; 12 weeks’ rather than three months. The 1996 Order does not add an additional contractual requirement that separate notices of termination should issue from each joint employer. If it did, separate notices would be required from individual partners who jointly employed an employee. Someone who was employed by an informal partnership, perhaps by a husband and wife team, could insist on the statutory minimum period of notice from each of those persons. That cannot be the case.
The contract of employment as amended by Article 118(1)(c) of the 1996 Order has been complied with by the joint employers and the claim of wrongful dismissal also fails in that respect.
Frustration
49. Even if the tribunal is wrong in its conclusion that the contract of employment, both as originally agreed and as amended by the 1996 Order, has been fulfilled by the respondent, the claim for a separate period of notice would still fail.
50. The joint contract of employment was frustrated by the decision of the Trust to terminate the employment of the claimant on 22 February 2014, even if that termination were to be regarded as the termination only of the Trust’s ‘part’ of the joint employment. The nature of the joint employment where the ‘clinical’ and the ‘academic’ sides of the claimant’s role were so intermingled and co-dependent, was such that the withdrawal of one of the two joint employers effectively frustrated and ended the employment at that point.
51. In GF Sharp & Co Ltd v McMillan [1998] IRLR 632, the EAT considered the case of a one handed joiner who was kept on the books by his employer solely for pension enhancement purposes. The EAT concluded that the contract of employment had been brought to an end despite the ‘on the books’ arrangement. It stated that the contract had come to an end by operation of the law relating to frustration as soon as the employers were told that the employee was permanently unable to do the work he was employed to do. The statutory provisions relating to a minimum period of notice similarly came to an end. They did not apply where the contract of employment had been terminated under the doctrine of frustration.
The EAT stressed that it was important that the incident triggering the doctrine of frustration had not been caused by either party. In the present case neither the claimant or the respondent issued the notice of termination; that was issued by the Trust. The claimant does not pursue a claim of wrongful dismissal against the Trust and it is not a party to this claim. Furthermore, it is accepted by the claimant that his contractual relationship with the Trust ceased on 22 February 2014. That was not caused by either the claimant or the respondent.
52. In the present case the joint employment was of a specific nature. The employee had to be able to perform both his clinical and academic duties. One depended on the other. Once his clinical duties were ceased on notice, the contract of joint employment as a clinical academic became impossible; in the same way as the medical injuries suffered by the one handed joiner rendered his employment impossible. The right to either a contractual period of notice, or to such a period of notice implied by statute, ceased at that point.
53. The doctrine of frustration is set out clearly in Chitty on Contracts, Volume 1, Paragraphs 23.001:-
“A contract may be discharged on the ground of frustration when something occurs after the formation of a contract which renders it physically or commercially impossible to fulfil the contract or transforms the obligation to perform into a radically different obligation from that undertaken at the moment of entry into the contract.”
Therefore, in the present case, once notice of termination was given by the Trust and had taken effect, the clinical academic post+ contemplated in the Memorandum became impossible. Any contractual relationship between the claimant and QUB was frustrated and expired at that point, together with any contractual rights to notice, whether underpinned by statute or not.
Summary of decision
54. The tribunal’s unanimous decision is that the contract of employment, properly construed did not, in these circumstances, require a separate notice of termination from QUB and the claim of wrongful dismissal (notice pay) is therefore dismissed.
If the tribunal is wrong in this, the contract expired in any event on 22 February 2014 by operation of law under the doctrine of frustration and no contractual entitlement, including any entitlement to notice, existed beyond that point. The claim for wrongful dismissal (notice pay) would therefore have been dismissed on that ground in any event.
Vice President:
Date and place of hearing: 12 August 2014, Belfast
Date decision recorded in register and issued to parties: