United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 954_93_1404

Appeal No. EAT/954/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 April 1994

Before

HIS HONOUR JUDGE J HULL QC

MR A F BLACKLAWS OBE

MR P M SMITH

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B T ROLATRUC LIMITED          APPELLANTS

MR V K BOWN          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR K J CADOO

(EMPLOYMENT LAW

CONSULTANT)

23 Chertsey Street

London SW17 8LG

For the Respondent MR V FULLAGAR

(SOLICITOR)

32 Queen Street

Braydon

Malmesbury

Wiltshire SN116 9RL


 


JUDGE J HULL QC: This is appeal to us from the Industrial Tribunal which sat at Bristol on 29 September 1993 on a preliminary point as to whether Mr Bown, the employee of the Appellants was in time in presenting his complaint of unfair dismissal on 15 July 1993. That entirely depended on what was the effective date of termination of his employment. We do not need to go into the facts, indeed we are not in a position to, but the essence of it is this; that Mr Bown, who had been employed for more than two years, was felt by his employers to be insufficiently competent in his performance to justify his continued employment. It is not of course for us to say whether they were right in their view or not, whether they acted fairly in forming their view. These are entirely matters outside our knowledge.

What happened was that on the 29 March 1993 there was a meeting, described in a letter which we have seen, as a disciplinary meeting between two representatives of the management, Mr Goliger and Mr Smith and Mr Bown, at which it was made quite clear to Mr Bown that his employment was to be terminated and that he was not going to work after that date. He was paid money, as it was put, in lieu of notice up to the 30 April. Now that conversation, most confusingly, can have two effects. I say confusingly, particularly to a layman, although it is certainly not easy even for a lawyer to arrive at the true view in any particular case.

There are always two possibilities. Either the employer can say "your contract is at an end today, and I am going to pay you some money in satisfaction of any claim for damages which you might have. I may be doing wrong in terminating your employment immediately, but I am going to pay you some money". He may say that it is lieu of notice, and that of course is a ambiguous expression, because it may mean "because I am not giving you notice". In those circumstances, the employment ends forthwith and if that had been the effect of the conversation which took place on the 29 March, the effective date of termination would have been the 29 March, and Mr Bown's complaint to the Industrial Tribunal would have been out of time.

On the other hand, the employer may in substance say this. "I am giving you notice to end your employment in accordance with your contract. I am entitled as a matter of law, and subject of course to the law about fair and unfair dismissals, to end your employment with notice, and I give you notice now. But I do not wish you to work out your notice. I am quite content for you to go home straight away and work no more for me, and I will pay you during the notice period, as of course you are entitled to be paid. So I am ending your contract in accordance with its own terms by giving you notice".

Now of course few people in ordinary life spell out their decisions with such a precision as that. Not surprisingly most people are not aware the importance of the decision and giving someone "pay in lieu of notice" is an ambiguous expression. It may for the reasons which I have mentioned, either amount to terminating the contract lawfully and in accordance with its terms, or a breach by the employer, or possible breach, saying "the contract is to end today, but I am paying you compensation for anything that you have lost, so you will not have to sue me for damages for wrongful dismissal".

That question turned out, on the dates involved, to be a vital matter which was decided as a preliminary point by the Industrial Tribunal which sat on the 29 September. There appeared before them Mr Mummery, who was Head of Personnel and Training for the Appellant Company, and Mr Bown himself in person. The Tribunal heard the evidence of Mr Bown as to what had passed at the meeting of the 29 March. Having heard Mr Bown, they also of course heard Mr Mummery. Mr Mummery was not able to give any evidence of what had occurred on the 29 March for the short and simple reason that he was not there. The two gentlemen who were there I have referred to already. Mr Mummery made submissions to the Tribunal.

He also produced to the Tribunal a letter which would undoubtedly have been regarded as important, dated the 30 March, written by another person who was not present at the meeting, a Miss Julia Bridge, the Personnel Manager. Mr. Cadoo, who appears today for the employers, has particularly drawn our attention to what is said in the second paragraph of the letter.

"I now write to confirm the decision that was reached that you should be dismissed from the Company. Your dismissal took effect from Monday, 29 March 1993".

She then set out the reasons, and added:

"It is agreed that you worked up to 29 March 1993, and that you will be paid up to 30 April 1993 in lieu of the notice due to you".

Now that letter might be said to be ambiguous, but certainly for my part I should regard the second paragraph of the letter as very powerful evidence that indeed the dismissal took effect from Monday 29th March 1993, the employers are saying "your employment ended forthwith". However, that letter did not purport to be the actual letter of dismissal, it was not the letter which ended the contract at all, for that had happened the previous day. The reality of what happened the previous day therefore had to be tested by looking at the evidence of it, which Mr Bown was in a position to give to the Tribunal, and did give to the Tribunal. No doubt he could have been, and very possibly he was, asked about that letter. Did that letter accord with his recollection? Did he agree that having received that letter he wrote no reply, saying "I am sorry, you are mistaken in what you say", or "the reality of it was that I was given notice, and told I need not work out the notice?"

So all that may have taken place in front of the Tribunal, we do not know. We do not have the notes of evidence of what was said in front of the Tribunal. Another matter which may very well have been put to Mr Bown was his own IT1, as it is called, his form of application to the Tribunal. One of those boxes which he has to fill in is box 8, "please give the dates of your employment....." - he said it began in March 1990, and ended on 29 March 1993, under which he put the important words:

"Worked up to this date but paid up to 30 April 1993 in lieu of notice due to me".

It seems to me, at any rate, that he very likely inserted those words in an endeavour to support his contention that his employment did not actually end until 30 April.

Those were the matters before the Tribunal. We do not know, as I say, exactly what evidence was given to them, but we do know that Mr Bown was there and he was in a position to tell the Tribunal exactly what had happened on the 29 March. The Tribunal then gave their decision as follows:

"He has given evidence to the Tribunal that on 29 March 1993 he understood his employment to be terminated but that he would be receiving a month's pay in lieu of notice. He did not understand himself to be dismissed summarily for gross misconduct. He gave evidence that he believed that his employment came to an end at the end of April 1993".

They then said that that affected the question whether his application to the Tribunal was out of time. They cited, in paragraph 3 of their decision, the Income Data Services Employment Law Handbook, which they read from, and which stated the law; then they said:

"Having heard the evidence of the applicant and submissions from Mr Mummery for the respondents, then on the facts of this case we decide that this case falls into the first category of the above extract and that therefore the effective date of termination was at the end of April 1993".

They reached their decision on the evidence which they had heard. If they plainly mis-stated the law in their decision, then of course an appeal lies to us. If their decision was clearly perverse, then that too is an error of law, but one asks rhetorically how can we possibly say that a decision on the evidence is perverse if we have not got even a transcript of the evidence, let alone had the advantage of seeing the demeanour of Mr Bown, and the way in which he dealt with such difficulties as he was faced with, when they were put to him before the Tribunal.

The Tribunal goes on in paragraph 4:

"In addition it is of relevance that Mr Mummery admitted in his submissions that the applicant had not been dismissed for gross misconduct, which would have justified summary dismissal, but for alleged misconduct. We believe that the employer did not state that the employment should cease with immediate effect on 29 March 1993 and that was certainly not the understanding of the position by the applicant".

Mr Cadoo criticises that. He says that the Tribunal were considering something that was quite irrelevant. But we disagree with that. It seems to us that the Tribunal was well entitled, and indeed quite right, to consider all the circumstances of the case, in deciding what the conversation added up to. If somebody had just been caught with his hand in the till, or performing some other flagrant breach of his contract, it might be very natural to infer that perhaps the very angry conversation, which would follow shortly thereafter, would amount to a summary dismissal since the employee would in those circumstances have repudiated his contract by his gross breach of it, and the employer would be entitled to say "you are immediately dismissed", of course if he acted fairly. On the other hand if the employee has committed no gross misconduct, but his performance after two or three years is found wanting, then it is much more natural to suppose that the ordinary employer will wish to act lawfully, and say, "I have not got any excuse to dismiss you summarily, but I am going to ask you to go tomorrow, or today, and I will pay you in your notice period, but I do not require you to do any more work for me".

It seems to us that it was entirely natural for the Tribunal to take that into consideration, and they were right to do so. As I say, they heard the evidence. We have no transcript of the evidence but we must assume that their decision was reached as they say it was. On the evidence, we cannot find that it is perverse, and we most certainly do not find that there is any error of law in the short statement that they give of their reasons. Clearly, if the letter of 30 March was the letter of dismissal, then we should as a matter of law have to construe it and say whether we agreed with the Tribunal about its true construction. But that is not correct. The letter is merely a confirmatory letter written by an officer of the company who was not present. The vital question is what happened on the 29 March.

There the Tribunal had reached their decision. They were entitled to reach their decision. Certainly there are grounds for believing that there may have been a good argument to the contrary. They heard all the arguments from Mr Mummery. They must have rejected them and they found in favour of Mr Bown. All that we can do is to say that we think they were well entitled to do so, and that their decision contains no error of law. We must dismiss this appeal.