United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 289_93_1307

Appeal No. EAT/289/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 July 1993

Before

THE HONOURABLE MR JUSTICE TUCKEY

MR A FERRY MBE

MRS M E SUNDERLAND

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MRS L SENCICLE          APPELLANT

THE UNIVERSITY OF KENT AT CANTERBURY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant IN PERSON

For the Respondents MR D GRIFFITH-JONES

(OF COUNSEL)

Furley Page Fielding &

Barton

39 St Margaret's Street

Canterbury

Kent CT1 2TX


 


MR JUSTICE TUCKEY: On 25 January 1993 an Industrial Tribunal sitting at Ashford dismissed the Appellant, Mrs Lorraine Sencicle's, complaints of unfair dismissal and sex discrimination for want of jurisdiction. She appeals against that decision. They also recorded in their Decision that Mrs Sencicle's complaint under the Equal Pay Act had been withdrawn by her during the course of the Hearing and they accordingly dismissed that as well.

The complaints related to Mrs Sencicle's part-time employment by the Respondent University to teach economics as part of a foundation course. She was also employed as a teacher on the Part I Economics Course, but that employment was the subject of a separate Contract of Employment and the Tribunal record in their Decision, as indeed the papers in the case make clear:

"These proceedings are in respect of her employment on the Foundation Course only."

The basis of the decision that the Tribunal had no jurisdiction was that the complaints were out of time.

Mrs Sencicle's IT1 was presented on 2 April 1992. By their Notice of Appearance the Respondents asserted that her employment had come to an end on 17 December 1991 and so the complaint was out of time. The first of the issues which the Industrial Tribunal had to resolve was - when was the effective date of termination of the Applicant's employment, because her complaint had to be made within three months of that date.

That date also affected the claim under the Sex Discrimination Act since Mrs Sencicle could not complain of any act of discrimination after the termination of her employment. There was an issue which was not resolved by the Tribunal as to when her successor in this job was appointed, but the nature of the Appellant's case before the Tribunal as was made clear in a document put before it, was that the act complained of under the Sex Discrimination Act was the hiring of her successor on more favourable terms at a time when she was still in the employment of the Respondents. Accordingly the date of termination of her employment was of importance in deciding whether her Sex Discrimination complaint had been brought in time because under Section 76(1) of the 1975 Act such a complaint must be presented within three months of the act complained of.

The circumstances leading to the termination of Mrs Sencicle's employment can be described by reference to the documents which are before us and which were before the Industrial Tribunal. No oral evidence was given but the Tribunal say that they heard very clear arguments presented by Mrs Sencicle who appeared in person and from Counsel on behalf of the Respondent University. The story starts on 16 December 1991 when Mrs Sencicle was asked to attend a meeting at which Dr Peirson who was her superior and a Mrs Danilewicz were present. The purpose of the meeting was to discuss the findings of a student audit which had thrown up criticisms of the Appellant's teaching. Dr Pierson's note of the meeting records that the Appellant was angry and suggested that the English Language Teacher could teach her course for the rest of the year. The note however ends by saying that it was agreed that this was the wrong time to discuss these matters and make decisions from which we conclude that it was being suggested that a time should be taken to reflect on the outcome of this meeting before any rash decisions were made. But on the following day Mrs Sencicle wrote to Dr Pierson saying that she had enjoyed working on the course and concluded by saying:

"what can I say? As the only one left from those who piloted the course I guess I am passed my sell by date!"

That was accompanied shortly afterwards by a note left with the Secretary to the relevant department in which Mrs Sencicle said:

"Could you be so kind as to give the enclosed to the various students as I will not be seeing them next term.

Also, please will you accept my thanks for all the help and support you have given me during those last 2 1/2 years".

Dr Pierson replied to that note saying:

"We interpret the note that you left with Mabel Shaw as a letter of resignation. We regretfully accept your resignation."

He also thanked her for all her effort and discussed the outstanding payment due to her for the work which she had done. In a letter dated 23 December Mrs Sencicle replied saying:

"I am sorry to note that you have interpreted a message that I gave to Mrs Shaw, the English Language Unit's Secretary, as my note of resignation... I certainly would not be so rude as to hand in my notice to a secretary."

She concluded that letter by saying:

"I am sorry to say that you were unable to accept my defence [that is to say her defence to the criticisms which were being made of her] and therefore it was better that I left the course. This I accept, as I said to you, in my letter of resignation, I am the only original teacher left and, therefore, must be past my sell by date."

The Tribunal say:

"We asked Mrs Sencicle on what day she said her employment came to an end. She told us that she maintained that she had been dismissed without notice on 23 December. We think that this is probably a realistic reading of the documents."

Obviously those documents were capable of another interpretation, that is to say, that Mrs Sencicle had in fact resigned on 17 December when she wrote her letter on that day. That was no doubt why the Respondent University in their Notice of Appearance had maintained that the employment had come to an end on that date. But for present purposes it matters not and whether we are talking about 17 December or 23 December. If her effective date of termination was either of those two dates it is self evident that the complaint made on 2 April 1992 was out of time.

The relevant statutory provision is section 55(4) of the 1978 Act which says:

"In this Part "the effective date of termination" -

(a)...

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

On the basis of the Industrial Tribunal's finding that there was a dismissal without notice on 23 December that was her effective date of termination.

By her appeal Mrs Sencicle argues that because she had a right to a minimum period of notice under section 49 of the 1978 Act the effective date of termination was extended by the notice period, that is to say by four weeks, and so her complaint was in time. That was an argument which she advanced before the Industrial Tribunal. It appears to have been based on advice given to her by her solicitor which we will refer to in due course. But it is not a valid point because although provisions of section 49 do advance the effective date of termination for some purposes those purposes do not include the time within which a complaint must be made laid down by section 67(2). This is clear from the wording of 55(5) which specifies the circumstances in which the date of termination is advanced. There is no reference to section 67(2).

Accordingly, this ground of appeal must fail. With greater vigour however Mrs Sencicle argues that the Tribunal were wrong not to extend time on the basis that it was not reasonably practicable for the complaint to have been presented within three months. This was a point which she urged on the Tribunal. It was a question of fact for the Tribunal to determine in all the circumstances of the case but Mrs Sencicle has argued that they reached a conclusion which was either perverse or one which they should not have reached because they misdirected themselves as to the importance of the fact that she had taken legal advice.

The facts relating to this point are set out in the Tribunal's Reasons. Dealing with the period between 23 December and 2 April when the complaint was presented, they refer to a long letter written by Mrs Sencicle on 26 January to Mr Shine in the Personnel Department of the University in which she says that she had been advised by her solicitor to "have a quiet word with him with regard to the foundation course". The Appellant informed the University that she had passed the matter to her solicitor on 5 March. On 10 March her solicitor, who was a Mrs Sandra Palmer, wrote a long and detailed letter to the University saying the allegations were serious and that she had instructions to bring them to the attention of the Industrial Tribunal without delay. She invited comments upon the allegations and if considered appropriate a full investigation, in which case she asked to receive assurances within seven days of the letter, failing which she was instructed to make immediate application to the Tribunal.

A number of points were put before the Tribunal by Mrs Sencicle. She argued that she had been distressed by the way in which she had been dismissed, that a close friend had died, that her daughter had been violently assaulted and that she had had to give her much emotional and physical support. She hoped that everything could have been sorted out on an amicable basis with the University and had approached them with that in mind. She had also been reluctant to start proceedings because she did not want it to affect her continuing contract to teach on the Part I course.

All those matters were considered by the Industrial Tribunal and are set out at length in their Reasons. They concluded:

"The Tribunal feels that the factual position is clear. While we do not wish to underrate the emotional stress imposed by her employment situation, and the extent to which that stress had been exacerbated by the death of her friend and, very particularly, by the indecent assault on her daughter, the facts remain that Mrs Sencicle was, by 26 January, able to write a detailed letter to the University putting her case: by 5 March, she had placed the matter in the hands of her solicitor, and by 10 March, had given the solicitor instructions to take the matter to the Tribunal. While the Tribunal reaches its finding with some reluctance, because, if Mrs Sencicle had brought her claim of unfair dismissal in time, there may well have been actions on the part of the University calling for investigation, nevertheless, the Tribunal is unanimous in finding that, in the circumstances, it cannot be said that it was not reasonably practicable for Mrs Sencicle to put her claim in time."

As we have already said, that was a question of fact for them. We are quite unable in the circumstances to conclude that it was in any way perverse. The matter was obviously very carefully and fully considered. On the material before them it was a decision which the Tribunal could properly reach and no element of perversity is shown in the conclusion which they did reach.

As to the relevance of the fact that she took legal advice Mrs Sencicle was referred us to the Court of Appeal decision in London International College Ltd v Sen [1993] IRLR 333 in which the Court of Appeal made it clear that there was no absolute rule that an Applicant would fail to surmount the "not reasonably practicable" hurdle if they had taken legal advice. Were we able to detect from their Reasons any suggestion that that was the approach which this Tribunal adopted then Mrs Sencicle's complaint would get off the ground, but we can see nothing in the way that they reached their decision to suggest that they applied any such absolute rule. They refer to the submissions of Counsel on behalf of the University which could be read to that effect, but it is clear that they did not adopt any such absolute rule because otherwise it would have been entirely unnecessary for them to set out and consider the other matters which they did.

Accordingly we reject this ground of appeal.

As the unfair dismissal claim was out of time it must follow that the complaint under the Sex Discrimination Act was also out of time for the reasons which we have given. The Appellant argued that time did not start to run until the Applicant knew that she had been discriminated against. The basis for that contention is a decision of a Scottish Industrial Tribunal (654/85) in MacVicar v Motherwell District Council. We have been shown a very short report of the case which does give some support for the argument although the facts of the case are not set out fully. So far as the EAT is concerned we must operate within the statute which it seems to us is entirely clear that the complaint (and we refer again to section 76(1) of the 1975 Act):

"must be made before the end of the period of three months beginning when the act complained of was done."

The act complained of here was the appointment of Mrs Sencicle's successor which she asserted had been made before her employment came to an end. That must have been before 23 December (although this was in issue) and accordingly her complaint was out of time.

The "just and equitable" exception to the time requirement of section 76(1) is obviously a means by which where there is no knowledge of the act of discrimination complained of the Tribunal may extend time. This is what happened in Hart v The Corporation of the High School of Dundee SCOIT 2363/85 where the Tribunal did extend time where the Applicant was unaware of the discrimination.

In this case the Tribunal did consider whether it was just and equitable for them to hear the complaint. Although the test is different the facts relied on were those facts to which we have already referred and which were fully considered by the Tribunal when considering whether to extend time for the unfair dismissal complaint. In their Reasons the Tribunal record, as must be the case that they had to look at what was just and equitable to both parties and that the same considerations, which meant that it was reasonably practicable for Mrs Sencicle to bring her unfair dismissal claim in time applied to her Sex Discrimination claim. She could have brought that claim in time. They concluded unanimously that it would not be just and equitable for them to consider the complaint out of time. That also was a conclusion of fact against which there is no appeal unless it can be shown to be perverse. We can see nothing in the Decision or the way in which it is expressed to support any such contention.

We should add finally that in the course of argument before us Mrs Sencicle contended that the complaint of Sex Discrimination was in time because her employment had in fact continued on the part 1 course and therefore if it be right, as the University contended, that her successor was not appointed until some time after 23 December, then the act of discrimination occurred within the three month period and she can complain of it because she continued to be employed albeit on another course.

The case was not presented to the Tribunal on this basis. We have looked carefully through the documents which were before them and can see nothing to that effect. They record in terms that the proceedings were in respect of Mrs Sencicle's employment on the foundation course only. If there ever was a valid basis (and we say nothing about that) for putting the case in this way it cannot be raised for the first time before this Appeal Tribunal and accordingly we do not and will not consider it.

For those reasons this appeal must be dismissed.