United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 133_93_2301

Appeal No. EAT/133/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 January 1995

Judgment delivered on 6 February 1995

Before

THE HONOURABLE MRS JUSTICE SMITH

MR D J JENKINS MBE

MR J C RAMSAY

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MR K BOATENG          APPELLANT

(1) MR K SUGRUE

(2) LONDON BOROUGH OF HACKNEY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant IN PERSON

For the Respondents MR A E C THOMPSON

(Of Counsel)

Christopher Hinde

Director and Solicitor

to the Council

London Borough of Hackney

298 Mare Street

London

E8 1HE


 


MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting at London South on 9th November 1992 on a preliminary issue of jurisdiction. The Tribunal decided that it had no jurisdiction to hear the appellant's claim (Originating Application number 53104/91) in so far as it comprised a complaint of unfair dismissal. They held that the complaint had been presented prematurely.

The relevant facts were not in dispute. The appellant Mr Boateng had been employed in the Personnel Department of the London Borough of Hackney since 1987. In November 1991, he faced disciplinary proceedings in which gross misconduct was alleged. The hearing was conducted by Mr K. Sugrue on 14th November. He found the allegations proved and decided that the appellant should be dismissed. That decision was confirmed in writing on 21st November. The letter of dismissal also advised the appellant of his rights of appeal. By letter dated 27th November, the appellant appealed. On 16th December 1991, several weeks before the appeal was heard, the appellant made an application to the Industrial Tribunal alleging unfair dismissal and racial discrimination. In their Notice of Appearance dated 2nd January 1992, the respondents alleged that there was no jurisdiction as the appellant had not yet been dismissed.

The appeal, of which the hearing took place on 18th February 1992, was unsuccessful. The dismissal of the appeal was confirmed in writing by letter dated 20th February 1992. The letter drew the appellant's attention to his right to make a complaint to the Industrial Tribunal.

Section 67(2) of the Employment Protection (Consolidation) Act 1978 provides:

"Subject to subsection (4), an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months."

Subsection 4 deals with dismissals with notice and is of no relevance in the present case.

At the hearing before the Tribunal the respondents submitted that the claim was lodged prematurely; that the appellant's contract of service provided that where an appeal from a dismissal for gross misconduct was unsuccessful, the last date of service (and therefore also the effective date of termination of the employment) was the date of the appeal hearing.

The appellant contended that his effective date of termination was 14th November 1991, the date of the disciplinary hearing. Thus the application was made within 3 months after the effective date of termination as required by section 67(2) of the Employment Protection (Consolidation) Act 1978. In the alternative, he submitted that he had been under notice of dismissal from the 14th November 1991 and could therefore rely upon section 67(4) to bring his claim during the period of notice.

The Tribunal accepted the respondents' submission and rejected both of the appellant's arguments. In this appeal, Mr Boateng, who has appeared in person, has relied only on the first of the two grounds argued below. He submitted first that, on the authority of Sainsbury J. Ltd v. Savage [1981] ICR 1, it was settled law that a contract of employment was brought to an end by a summary dismissal and did not continue pending the determination of an appeal, unless the contract of employment expressly so provided. That submission was accepted by the respondents and indeed by us. Second, Mr Boateng submitted that in his case, the contract of employment did not expressly provide for continuance and he argued that the Tribunal had misconstrued the Disciplinary Procedure which he admits was incorporated into his contract of employment.

We have before us, as the Tribunal had before them, 5 pages of extracts from the Disciplinary Code which the appellant accepts was the procedure in force in November 1991. The first page comprises an extract from the procedure for the initial disciplinary process. At paragraph 3.2.25 it provides:

"Where an individual is dismissed for Gross Misconduct (see Appendix A for definition) the last day of service will be the date of the Local Officer Hearing."

The Local officer Hearing is the initial disciplinary hearing which in this case took place on 14th November 1991. We have Appendix A before us but nothing turns upon the definition of Gross Misconduct.

Paragraph 3.2.27 of the procedure provides:

"Where an individual appeals against the decision (3.2.25) the pay arrangements are as outlined in Appendix C Paragraphs 1.2-1.5.

Appendix C is entitled `Personnel Appeals Committee'. Paragraph 1 is headed `Procedure Prior to the Hearing'. It is not necessary to set out the whole of paragraphs 1.2 to 1.5. So far as relevant to any argument under this appeal, the provisions are as follows:

1.2 The individual must submit an appeal within 10 working days of the date of decision letter from the Local Officer Hearing. ..... The individual will continue to be paid until 10 working days have expired. If the appeal is registered and accepted then the individual will continue to be paid until the date that ... (the appeal) ... decision is made.

1.3 The Head of Committee Secretariat ... may reject the appeal if there are insufficient grounds to justify the Personnel Appeals Committee meeting except where an appeal is against dismissal. Under these circumstances the meeting of the Personnel Appeals Committee will always take place. If the appeal is rejected, the individual's last day of service will be 10 working days after the date of the decision letter of the Local Officer Hearing.

1.4 Where the final decision is to uphold the dismissal for Gross Misconduct the last day of service will be the date of the Personnel Appeals Committee.

The appellant submits that paragraph 3.2.25 stands alone and is complete in itself. So the last day of service or effective date of termination was 14th November. Paragraph 3.2.27 deals only with pay arrangements and the reference to Appendix C (which purports to provide for a last day of service at the determination of the appeal) does not affect the provision of 3.2.25 as to the last day of service.

In the alternative, the appellant submits that the provisions of paragraphs 3.2.25, 3.2.27 and 1.4 of Appendix C are ambiguous. Therefore the employee should be allowed to elect which date he will treat as the effective date of termination. In the further alternative, the ambiguous provisions should be construed `contra proferentem' and the effective date of termination should be held to be 14th November.

Although he did not make the point, Mr Boateng must also be taken to have argued that because the Disciplinary Code does not make clear provision for the continuance of the contract of employment pending appeal, the usual rule in Sainsbury's case must apply.

The respondents argue that the Disciplinary Code including Appendix C must be read together as one document. Paragraph 3.2.25 does not stand alone; it must be read with 3.2.27 and paragraph 1.4 of Appendix C. When that is done, the position is clear. There is no ambiguity and the only possible conclusion is that the last day of service is 18th February 1992.

We feel bound to observe that the Disciplinary Code is not well drafted. We understand that it has now been superseded by new provisions. As in force at the time, it does seem to us that there is some warrant for the suggestion that Code C only seeks to make pay arrangements. For example, it appears that where an employee does not appeal, paragraph 3.2.25 provides that the last day of service will be the date of the Local Officer Hearing but paragraph 1.2 of Appendix C provides for pay to continue for a further 10 days. Thus the continuation of pay does not necessarily imply the continuation of the contract of employment.

A further criticism of the drafting may be made in respect of paragraph 1.3 of Appendix C which contains an internal inconsistency. There, it is provided that an appeal against dismissal will always be accepted for hearing. Yet the paragraph goes on to provide that if such an appeal is not accepted for hearing, the last date of service will be 10 working days after the date of the decision letter of the Local Officer Hearing.

However, having made those criticisms of the Code, we are firmly of the view that the whole Code should be read together. That done, it is clear that the intention is to make different provisions for the termination of service, depending upon whether or not the employee decides to appeal against his dismissal. There is no inconsistency between paragraphs 3.2.25 and 1.4 of Appendix C. The two provisions apply to different circumstances. We are quite satisfied that where there is an unsuccessful appeal against dismissal, the Code provides for the last day of service to be the date of the appeal hearing. It was accepted by both sides, rightly in our view, that the expression `last day of service' had the same meaning as 'effective date of termination'.

It follows that we conclude that the effective date of termination of the appellant's employment was 18th February 1992 and that, in accordance with the decision of the EAT in Penrose v. Fairey Surveys [1973] ICR 26, the application to the Industrial Tribunal made on 16th December 1991 was premature. The Industrial Tribunal were right in rejecting the claim for want of jurisdiction and this appeal must be dismissed.