United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 45_94_2810

Appeal No. EAT/45/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28 October 1994

THE HONOURABLE MR JUSTICE PILL

MR K M HACK JP

MR D G DAVIES

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BANCROFT MOTOR FACTORS LTD          APPELLANTS

MR J R HINKS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR M THOMPSON

Solicitor

Messrs Eversheds

Alexander Tatham

London Scottish House

24 Mount Street

Manchester

M2 3DB

For the Respondent NO APPEARANCE BY OR

ON BEHALF OF THE RESPONDENT


 


MR JUSTICE PILL: This is an Appeal against the unanimous Decision of an Industrial Tribunal held at Birmingham on 5 November 1993. The Tribunal held that the complaint of the Applicant, Mr J.R. Hinks, alleging unfair dismissal can be considered by an Industrial Tribunal as it was presented within the time provided in Section 67(2) of the Employment Protection (Consolidation) Act 1978.

The issue at the Hearing was as to the Applicant's date of dismissal. That obviously was important to the question whether the complaint of unfair dismissal had been presented within three months of the dismissal. The Applicant contended that the date was 14 May 1993. The Respondent employer, Bancroft Motor Factors Ltd, contended that the Applicant had been dismissed summarily at an interview on 26 March 1993, which would have placed the presentation of the complaint to the Tribunal outside the qualifying period.

At the Hearing the employers were represented by Mr Thompson, who also appears before us. The Respondent to the Appeal does not appear today and has indicated that he did not intend to be present.

Mr Hinks had been employed by Bancroft Motor Factors Ltd as a Sales Representative from 27 August 1986 under a written contract of employment. That entitled him after two years' service, to one week's notice of termination of contract for every complete year of service. On 26 March 1993, after an absence on sick leave he was called to a meeting with the Company's Managing Director and Group Sales Director.

At the meeting reference was made to his allegedly poor sales performance and a reference was made to the termination of his employment. The employers subsequently, on 29 March 1993, sent a letter to him, which was before the Tribunal and is before us. The Tribunal heard evidence from both parties. They stated in terms that neither party was deliberately attempting to mislead them. However, there was plainly a difference of view as to when the contract had terminated. The Tribunal were prepared to hold that the employers believed that the contract was terminated on 26 March. They go on to state however, at paragraph 8 that:

".... we are by no means convinced that they made that clear to the applicant either at that interview or in their letter of 29 March, 1993, which did not even mention the date of termination".

The Tribunal then set out matters which they considered relevant in deciding what was the date of termination, and having considered those factors and the cases to which they had been referred they concluded at paragraph 12 as follows:

"....whilst the date of 14 May was perhaps not specifically mentioned, the applicant was entitled, by the money paid to him, the compensation for loss of his car, the date of payment on his holiday entitlement, and the fact that the respondent company did not in any letter of dismissal take steps clearly to define the date of dismissal, to assume that it was at the end of at any rate a six week period from the date on which his dismissal was announced".

On behalf of the Appellants Mr Thompson makes two submissions. The first is that the Tribunal have erred in law in not finding as a fact when the date of dismissal was. It would have been better if in their Decision they had stated in terms a date as being the date of dismissal which they found. However, in our judgment it is plainly implicit in the Decision that they decided that the relevant date was 14 May.

At the beginning of the reasoned Decision they set out what the contentions of the parties are. They then consider the evidence, they refer to the lack of clarity in the matter and the cases to which they refer make clear that they did direct their minds to the relevant question, namely what was the date of termination. Where parties disagree upon such a matter and when each of them genuinely believes that he has the correct date, then it is of course for a Tribunal to assess all the evidence and to make up its own mind. Mr Thompson does not assert that because the employers believed there was a date that such belief bound the Tribunal to find that to be the relevant date.

In our judgment there is nothing in the first point. The Tribunal have, by implication, found in favour of the Applicant that the date of termination was 14 May. Mr Thompson's second submission is that such a finding was perverse. He has addressed us in detail upon that and it has to be said that some of his submissions would appear to be as if addressed to the tribunal of fact, though when the point was put to him Mr Thompson readily and rightly conceded that it is the Industrial Tribunal which is the tribunal of fact; this Tribunal can only intervene when there is an error of law. If he can establish that the finding of fact was perverse, then such perversity can and does amount to an error of law.

Mr Thompson relies primarily on the contents of the letter of 29 March 1993. We do not propose to read it in full. He submits that it is an inevitable conclusion from the letter that the date of termination was the date of the meeting on 26 March. Mr Thompson has referred us to a short note of the case of Lee v Ariston Domestic Appliances Ltd (EAT) 51/89, a case which has not been more fully reported it appears, and in which Mr Justice Wood giving the judgment of this Tribunal indicated the principles which were involved in construing a dismissal letter. However, it appears from the first reference in the note of the case that "whether there is in fact ambiguity in the written or oral communications of dismissal is largely a question for the Tribunal" meaning we have no doubt the Industrial Tribunal as the tribunal of fact.

We have also been referred to the case of Dixon v Stenor Ltd [1973] ICR 159 where Sir John Donaldson set out in the NIRC the principles which can be applied. In that case the point at issue was the length of the qualifying period, but those principles would apply equally to a dispute as to the date of termination of a contract of employment. Sir John Donaldson stated:

"In each case the qualifying period ends with the termination of employment. If the qualifying period ended with the giving of the notice, all these complications about whether a man continues to be employed during the notice period would disappear. There are four basic situations which we meet commonly. One is where a man is given notice and required to work out his notice. In such a case there is no doubt that the employment continues to the end of the notice period. The second is summary dismissal, where again there is no problem. The third, which has arisen in the present case, is where the employee is told with or without warning that he will be dismissed with money in lieu of notice. In the fourth, and perhaps most difficult of all, the employee does not work after he has been given notice, but it is arguable that he is in fact on paid leave. If he really is on paid leave, then the contract continues until the end of the paid leave".

Mr Thompson argues that this case comes into the second category or failing that, the third category. The Applicant clearly argued before the Tribunal that it came within the fourth category. The Industrial Tribunal found that, upon their appraisal of the evidence as a whole, the contract of employment did not terminate until 6 May.

It is right to say that the expression "in lieu" does appear in the letter of 29 March, though not in the way it is customarily expressed but as a part of the expression "in lieu of your contractual notice entitlement". The Tribunal made these comments upon the evidence at paragraph 9.

"The applicant received a payment gross which, it has been suggested, was a payment of compensation, but the sum was described by the respondent company as `further pay'; whilst he parted with his company car on 26 March, the applicant received payment for its `immediate surrender' which lies uneasily with the concept of an immediate termination of employment; further, the respondent's letter of 29 March, 1993, referred to `6.5 weeks further pay in lieu of your contractual notice entitlement' which might have been intended to indicate something other than `in lieu of notice', and a date of 15 April seems to have been agreed for holiday pay and a P45 to be delivered".

Mr Thompson has told us that the Applicant said in evidence that the P45 had not been delivered. It is clear from the letter that this was not a case where one payment of all outstanding monies was made. The letter contemplated a further payment at a later date and a subsequent delivery of the P45.

It is upon that material that Mr Thompson submits that the finding of the Industrial Tribunal was perverse. He relies upon the surrender of the car. He relies upon the fact that there was evidence that the Applicant had presented himself for Social Security within the period when he was contending the contract continued to exist, though it is not contended that had he appeared at Bancroft he would have been allowed to work.

We have considered the submissions of Mr Thompson. Clearly, Mr Thompson was disappointed, and no doubt his clients too, that the Industrial Tribunal found the facts as they did. However, we have no doubt whatever that upon the material before them the Industrial Tribunal were entitled to make the finding which they implicitly did that, the contract terminated upon 14 May. In our judgment, there is no hint of perversity in their Decision and this Appeal must be dismissed.