United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 783_93_2811

Appeal No. EAT/783/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28 November 1994

Before

HIS HONOUR JUDGE H J BYRT QC

MISS J W COLLERSON

MR PETER DAWSON OBE

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MR R MITCHELL          APPELLANT

CASTLE CONTRACTS (PORTSMOUTH) COMPUTER FLOORING          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR J WALSH

Free Representation Unit

49-51 Bedford Row

London WC1R 4LR

For the Respondents NO ATTENDANCE OR REPRESENTATION ON BEHALF OF THE           RESPONDENTS


 


JUDGE BYRT QC: This is an appeal from a decision of the Industrial Tribunal sitting in Southampton, the decision being promulgated on 18 August 1983. In that decision, the Industrial Tribunal dismissed the claim of an employee for redundancy payment.

The relevant facts for this appeal are as follows. The Appellant had been working for the Respondents for something like ten years as a flooring installer and, as the Industrial Tribunal found as a fact, his job entailed him travelling all across the country, as directed by his employers. In the summer of 1992 the company put certain of its employees on short-time and the Appellant was one such person. This was in June for a week and he was paid for it. On 25 July the employers wrote to the employee that there was no work and, accordingly, he had to be laid off. On 14 September they repeated the message in a further letter sent to the employee and, as a result of that, on 15 September, the Appellant served a notice of intention to claim redundancy payment on his employers.

They did not serve any counter notice nor did the Appellant serve any notice terminating his contract as required by the statute and, it is our view that the notice given on 15 September was ineffective.

However, on 3 October, the Appellant served another notice of intention to claim redundancy payment and that was the finding of the Industrial Tribunal.

We concur with their argument that there is no argument or reason why an employee should not be able to serve two such notices and, accordingly, the notice served on 3 October was, in our judgment, a valid notice of intention to claim.

On 12 October the employers responded by sending a letter which the Industrial Tribunal claimed was a counter notice, in which they stated that they did not see that any redundancy money was justified. On 17 December the employers wrote to the Appellant offering him further work as from 5 January and in that letter they stated that if he, the Appellant, did not report for work on 5 January, it would be assumed that he had resigned. On 4 January the Appellant wrote a letter to his employers giving them what he called "notice to quit", indicating that in fact he would not be reporting for work on 5 January and, indeed, he did not do so. On 7 January the employers wrote back to the Appellant saying that they accepted his letter of 4 January as a letter of resignation. In due course, on 8 April following, the Appellant issued his originating application in respect of a claim for redundancy.

This appeal turns on a number of points but, first and foremost, it turns on the question whether the counter notice served by the employers on the Appellant was within time. If it was not served in time, then, of course, it was incumbent upon the Appellant to give his notice of termination of his employment within the 28-day period following that upon which he gave his notice of intention to claim redundancy and it is not disputed in this case that he never gave such notice. If, on the other hand, the counter notice was within time, then other matters of law arise concerning the Appellant's notice to quite on 4 January and I shall come to that in a minute.

The first question is as to whether the employer's counter notice was within time. The Industrial Tribunal made a computation of the period of time, the seven-day period, in accordance with the evidence that was before it and, as a result, they came to the conclusion that the notice of intention to claim, written on 3 October, could not have been received by the employers before 5 October, 4 October being a Sunday. They then calculated that their counter notice, dated 12 October, could not have been received by the Appellant until 13 October at the earliest, namely, a Tuesday and, thereafter, they concluded that the counter notice was not served within time. It is well recognized that before the EAT the question of service of notice, and the computation of the time in which they have to be served are questions of fact and, in this instance, the Industrial Tribunal came down firmly with the view that the counter notice was not served in time.

Mr Walsh, who has argued this case most cogently, says that there is a point of law here. The Statute makes plain that the Appellant has to "serve" notice and, accordingly, it is correct to start the computation of time as from the date when it would have been received by the employers, in this case, 5 October. He says that the Statute requires the employers to "give" notice and the date when they give notice is the date when they actually post the notice. In that way, he attaches crucial importance to the difference or the distinction which he says is drawn in the Statute between the giving of notice and service of notice.

We have considered this particular point and we do not think that a point of law arises on it. There is no distinction or no significant distinction in our view between the service of notice and the giving of notice. If, in fact, there had been such a distinction intended by Statute, we would have expected it to have been spelt out expressly in Section 119 which deals with the service of notices and nowhere is it, in fact, referred to. Accordingly, on that ground, we would dismiss this appeal. That matter was a question of fact to be determined by the Tribunal and it is not for us to go into it again.

If, however, as Mr Walsh says, the notice was served in time, then the procedures set out in the Act are as follows: the issue then should have been referred to the Industrial Tribunal for its determination as to whether the Appellant was entitled to redundancy payment. When he, the Appellant, was notified of the decision of the Industrial Tribunal, he would then have three weeks in which to serve his notice terminating his contract of employment. The whole scheme of the Act is such to enable this matter to be determined and the entitlement to redundancy payment to be determined without, the Appellant, first of all, having to lose his job.

In this particular instance, what was envisaged by the Statute did not happen. First, the employer's letter of 17 December was sent, followed by the employee's (the Appellant's) letter of 4 January which, in our judgment, brought about his resignation before this matter went to the Industrial Tribunal. It is to be observed that in giving his notice, there is no pretence that he gave the seven days' notice he was required by Statute to give. Accordingly, on that ground again, in our judgment, the Appellant's employment was brought to an end on 5 January. It was brought to an end again in breach of the terms of the contract and in breach of the procedures set out by the Act and, for that reason we would say that the Appellant is not entitled to the remedies he claims.

On both of those counts we dismiss this appeal.