United Kingdom Employment Appeal Tribunal

You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ramsden v Micro Plastics International Ltd [1992] UKEAT 72_91_2206 (22 June 1992)
URL: http://www.bailii.org/uk/cases/UKEAT/1992/72_91_2206.html
Cite as: [1992] UKEAT 72_91_2206

[New search] [Printable RTF version] [Help]

BAILII case number: [1992] UKEAT 72_91_2206

Appeal No. EAT/72/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 June 1992

Judgment delivered on 1st February 1993

Before

HIS HONOUR JUDGE B HARGROVE OBE QC

MR J H GALBRAITH CB

MR S M SPRINGER MBE

B E RAMSDEN APPELLANT

MICRO PLASTICS INTERNATIONAL LTD RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant Ms Caroline Bates

(of Counsel)

Free Representation Unit

13 Grays Inn Square

LONDON WC1R 5JZ

For the Respondents Mr John Davies

(of Counsel)

Messrs Varley Hibbs & Co

Solicitors

Kirby House

Little Park Street

Coventry

CV1 2JZ

HIS HONOUR JUDGE B HARGROVE The Appellant claims that by a letter of 5th June 1990 from the Respondent's solicitors he was dismissed. He had been in the Respondent's employ as a General Manager since 20th May 1987. The Industrial Tribunal on 6th December 1990 decided that that letter did not constitute a dismissal and further seems, by implication, to have judged that the Appellant had terminated his employment by informing the Respondent, by a letter of that date, that he was applying to the Industrial Tribunal. The Respondents by a letter of 29th August purported to accept that termination.

The Appellant's case, in brief, is that the Tribunal erred in law by misconstruing the letter of 5th June 1990, a proper construction being that it constituted a dismissal on that date. Further, the Appellant contends that because the question of when the termination took place is not stated with precision the matter should be remitted to the Tribunal in order that the Appellant could be informed whether such termination was a fair termination. Moreover that by failing to identify the documents which constituted the termination, the Appellant has been deprived of the opportunity of considering the construction of such documents and identifying whether or not he had a further point of appeal on any mistakes made by the Tribunal.

Before turning to the main issues it is profitable to look at the circumstances in which these events took place. On 26th April 1990 the Appellant suffered a "heart attack" (we are not informed of the precise nature of the cardio-vascular episode). He was in hospital for 8 to 9 days. On 18th May 1990 there was a second "heart attack" necessitating a stay in hospital of 24 to 36 hours. He had not returned to work on 5th June when the letter in question was written. On receipt of that letter the Appellant's solicitors replied that they considered the letter to be a notice of dismissal. The parties commenced negotiations upon an offer contained in the letter of 5th June and these negotiations continued until 25th July 1990 when a time-limit for acceptance which had been set by the Respondent was not met and the offer was withdrawn. The Appellant then applied to the Industrial Tribunal.

Jurisdiction

The Respondent contends that this Tribunal has no jurisdiction, the question of dismissal being essentially one of fact or mixed fact and law. Both sides have relied on Davies v. Presbyterian Church of Scotland [1986] ICR 280: and Lee Ting Sang v. Chung Chi Keung [1990] ICR 408. For the Appellant weight was placed on the passage in Davies at p.288

"... An appeal from the industrial tribunal is expressly conferred by statute on a question of law. The question to be determined is a question of law, namely, whether upon the true construction of the book of rules a pastor of the church is employed and is under a contract of service. ..."

The Respondent points out that this is an exceptional case where the entirety of arrangements between the parties was contained in one document. Lee Ting Sang's case is relied on as illustrating the exceptional nature of the Davies decision in the passage which occurs at [1990] ICR 414,

"Whether or not a person is employed under a contract of service is often said in the authorities to be a mixed question of fact and law. Exceptionally, if the relationship is dependent solely upon the construction of a written document it is regarded as a question of law: see Davies v. Presbyterian Church of Wales [1986] ICR 280. But where, as in the present case, the relationship has to be determined by an investigation and evaluation of the factual circumstances in which the work is performed, it must now be taken to be firmly established that the question of whether or not the work is performed in the capacity of an employee or as an independent contractor is to be regarded by an appellate court as a question of fact to be determined by the trial court. ..."

The contention is put that whether or not there is a dismissal by the letter of 5th June can only be seen against the factual matrix of events. In Eclipse Blinds Ltd v. Wright [1992] IRLR 133 at 135 a passage occurs

"Our attention is drawn by Mr Hutchison to what is said by Lord Denning M.R. at p.380 of Marriott v. Oxford & District Co-operative Society [1969] ITR Vol.4, 377, where he stated that the question of what was the proper inference to be drawn from primary facts was a question of law. That observation may have been apt in the context of that case but with respect, as a general principle of law, we cannot accept it. What inference is to be drawn from the facts is a matter to be determined by the Tribunal hearing and deciding the facts unless, of course, there are no facts from which any particular inference could be drawn".

In our view this is a situation where we are invited to say that one document constitutes the dismissal. The construction of that document is a question of law for the Industrial Tribunal and, on appeal for this Tribunal. It is closer to the Davies case than to the type of case where a diversity of surrounding issues and events gives colour to a transaction as may well occur where the question is whether a relationship is that of employee or independent contractor. The dismissal, if there is one, can only be found in this case within the four corners of the document. We do not consider this to be, as has been represented to us, an attempt to evade the limitation of our jurisdiction by representing an issue of fact and law as being one of pure law through attenuation of the area of appeal to, on this point, one single document.

The question of dismissal

The letter has been subject to a thorough analysis by both sides. Not surprisingly they have reached opposite conclusions on what such analysis shows. The phrase,

"... As I understand the matter, you are unlikely to return to work in the foreseeable future and, in view of this, Micro Plastics seem to have no option but to find a replacement employee".

is represented by the Appellant to mean that his replacement is shortly to be installed and that this supports the 'dismissal' view. The Respondent lays emphasis on the expression "seem to" and points out that the whole of the paragraph is based upon the question whether the Appellant would in the near future be able to return to work.

Again, the inference of dismissal is said to be drawn from the passage -

"I have advised Nueboch Vandermast of the legal position of such dismissals ..."

but the Respondent points out that this is in the context of what is contractually available to the Respondent by way of sick pay and emphasises that, in the event of the employment coming to an end, the Respondent was willing to make payments over and above strict legal requirements.

Further support, it is contended, for the Appellant's view came from the sentence,

"... Regarding the cessation of your employment, Nueboch is considering a package

... the company would pay you a total of six months ex gratia payment calculated with effect from 1st June. ..."

Particular emphasis is laid upon the expression "cessation" and that a change of relationship is envisaged from 1st June.

The Respondent replies that all that is raised by the letter is the question whether, in the event of the Appellant being unable to continue certain compensation would be forthcoming and particular reliance is placed on the passage which reads,

"... Nevertheless I am sure you understand that, from Micro Plastics' viewpoint, they must take some positive action fairly quickly in order to ensure that the company can continue to operate successfully. It will be helpful if you could respond to this letter fairly quickly so that I can report to Nueboch Vandermast. Obviously if you wish to take your own legal advice before responding, please do so and (if appropriate) arrange for your own solicitor to contact me direct."

The inference to be drawn it is said, is that the Appellant is being invited to enter into a dialogue not only about the "package" but about the whole issue of employment.

Applying an objective test it appears to the majority of us that the interpretation of this letter as a dismissal stretches its meaning beyond breaking point. It is a letter which seeks information in relation to the Appellant's availability for work and, in the event that this Respondent's understanding is correct, they are writing to offer certain terms on the termination of the contract. The contention that there is a dismissal and all the letter is dealing with is the aftermath of compensation places a false meaning upon the letter viewed in its entirety. Moreover, as a matter of common sense, an employer would obviously wish to ascertain whether the employee holds a different view as to his availability for work before going any further down the road towards dismissal. If letters such as this are to be deemed to be letters of dismissal it places so high a premium on drafting any written offer of compensation as to offer a serious obstacle to intelligent negotiations between an employer and employee. It is quite impossible to infer that the date of the letter is the date of dismissal and no other date has been suggested. The majority of us therefore hold that the Industrial Tribunal did not form an erroneous view on the law and that a proper construction of the letter of 5th June is that it is not a dismissal.

Failure to identify date of termination

Apart from the question of constructive dismissal (and against that decision there is no appeal) the question of dismissal by the letter of 5th June was all that was placed before the Industrial Tribunal and it is therefore understandable that the Tribunal's reasons do not devote much space to the question of when the termination did occur. However, paragraph 7 of the Reasons records,

"The applicant then decided to carry out the threat first contained in the 'without prejudice' letter and issue an application to this Tribunal and warned the respondent of this on the 23 August. The respondent replied on the 29 August accepting their letter as confirming that the applicant would not return to work and therefore having effectively terminated his own employment."

Paragraph 10 obliquely accepts that it is by reacting to the letter of 5th June as he did that it would have been necessary, had he done nothing for the Respondent to dismiss him. It is therefore reasonably clear that the Tribunal found that the Appellant, by making his application to the Industrial Tribunal and notifying his employer of this, has thereby terminated the employment. That is a finding which was almost inevitable once the decision was made that the letter of 5th June was not a dismissal. The majority find that there is no error of law in this respect either.

Mr S M Springer MBE, dissenting, takes the view that if the Respondent by the letter of 5th June 1990 only intended to raise the question whether, if the Appellant was unable to continue with his duties certain compensation was being offered, it was incumbent upon the employer to inform the Appellant's solicitors that such was the intention. The solicitors had raised by the letter of 21st June 1990 in plain terms,

"Your letter of 5th June which we and our client effectively read as a dismissal notice.

... It is our view that the dismissal is totally unfair."

The conduct of the Respondent, by not correcting this view so expressed, confirmed by omission that the suggested interpretation was correct. In Mr Springer's view this is supported by Chapman v. Letheby & Christopher Ltd [1981] IRLR 440 at 442 where Browne-Wilkinson J states

"First the construction to be put on the letter should not be a technical one but should reflect what an ordinary reasonable employee would understand by the words used. Secondly, the letter must be construed in the light of the facts known to the employee at the date he receives the letter."

Upon that Mr Springer concludes that adopting such an approach drives one to the identical view to that held by the Appellant that this was a letter of dismissal and that that is the only reasonable interpretation. The letter contains the expressions -

"You are unlikely to return to work ... No option but to find a replacement employee ... Legal position regarding such dismissal ... Regarding the cessation of your employment ..."

which really convey such an impression. The third paragraph of the letter would confirm the "dismissal" interpretation upon the basis that despite legal advice given to Neupoch Vandermast the employer was prepared to dismiss the employee and pay compensation.

While Mr Springer could find no ambiguity in the words used he considered that Chapman v. Letheby & Christopher Ltd [1981] IRLR at p.443 sets out the correct approach

"Even if we are wrong in this view and the meaning of the letter is truly ambiguous, there is a principle of construction that the words are interpreted most strongly against the person who uses them. We think this principle is peculiarly applicable to cases such as the present where an employer, by an ambiguous notice, may mislead the employee as to the effect of the document, the responsibility for the wording of which lies entirely in the hands of the employer. It seems to us right that an employer who relies on a notice served by him as having a particular meaning should be required to demonstrate that it unambiguously has that meaning. If the employer can rely on ambiguities being resolved in his favour, the employee may be left in doubt as to where he stands ..."

Mr Springer would therefore allow the appeal. The majority view being to the contrary.

The appeal is dismissed.