United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 34_94_1605

Appeal No. EAT/34/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 May 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS C HOLYROYD

MR N D WILLIS

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MR T C LAWTON          APPELLANT

KEN GRAY T/A GRAYS MOTOR FACTORS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR P BIBBY

(Free Representation Unit)

49-51 Bedford Row

London

WC1R 4LR

For the Respondents MR K GRAY

(In person)


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at London (North) on 19 November 1993. The Tribunal heard a preliminary question in a claim for unfair dismissal, brought by Mr T C Lawton against his former Employer, Ken Gray T/A Grays Motor Factors. The preliminary question was whether the Tribunal had jurisdiction to hear Mr Lawton's claim for unfair dismissal. The Tribunal unanimously decided, for full reasons notified to the parties on 6 December 1993, that it had no jurisdiction to hear the application. The reason was that the application had been presented before the effective date of termination. To understand that reason, it is necessary to consult the provisions in the Employment Protection (Consolidation) Act 1978 which deal with the presentation of complaints of unfair dismissal to an Industrial Tribunal. The relevant section is Section 67(2) which says:

"(2) Subject to subsection (4), [that subsection is not relevant to this case] 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."

The key question in this case is: when was the effective date of termination of Mr Lawton's employment? It is not in dispute that his employment has been terminated. The question is when? Was it before he presented his complaint or was if after? If his effective date of termination was after he had presented his complaint, then prima facie the Tribunal cannot consider the complaint, unless satisfied that it is a case for extending the time under Section 67(2). This issue became clear when the Notice of Appearance was put in to Mr Lawton's originating application complaining of unfair dismissal. The position is this: on the 18 February 1993, Mr Lawton served on the Tribunal his claim of unfair dismissal. At that time he was represented by a solicitor, Mr Smith of Richardson Smith & Co. Chesham, Buckinghamshire. He gave details of his Employer, Grays Motor Factors, the trading name of Mr Ken Gray, from premises in Uxbridge Road, Hanwell. He said he had been dismissed from employment which began in 1982. The position he was dismissed from was that of Manager. He stated that the date on which his employment ended was 7 December 1992. In Box 12 of the form he said:

"I was dismissed by telephone by Mr Ken Gray of Grays Motor Factors on 7th December 1992."

He gives details of the circumstances which led up to his dismissal, including the fact that, because of a back injury, he was unable to work from the end of September until 7 December. He said:

"... I telephoned [on 7 December] to indicate I was fit to return to work and was told I was dismissed or I should go round the tyre bay. I had previously indicated that I was not prepared to work again in the tyre bay and Mr Gray was therefore simply dismissing me with no effective alternative to dismissal."

Mr Gray's response to that complaint is contained in the Notice of Appearance dated 4 March 1993. He agreed that Mr Lawton had been employed from 1982, but said his employment ended on 1 March 1993; that is, after the date when the originating application was served on the Industrial Tribunal. In Box 8 of the Notice of Appearance he stated the grounds upon which he was resisting the application. He said that Mr Lawton was dismissed after refusing to accept the alternative position offered to him on the same pay scale, after losing his MOT licence, which made it impossible for him to carry out the duties he was primarily employed for. He gave the reasons for termination as not accepting the alternative position and failing to return to work after a period in excess of seventeen weeks.

The issue the Industrial Tribunal had to decide was: what was the effective date of termination of Mr Lawton's employment. The Tribunal came to the conclusion that it was the 1 March. It followed that it had no jurisdiction to consider the complaint under the first half of Section 67(2). It appears from the Decision that the Tribunal did not consider extending the time for presenting the complaint, in accordance with the power that it has in appropriate cases under the second part of Section 67(2).

We turn to the reasons for the decision to see if they contain an error law. It is only if they contain an error of law that we have jurisdiction to disagree with the decision of the Tribunal and reach a different decision. In the reasons for the decision the Tribunal summarised the findings of fact. They made an important point in paragraph 1 of the Reasons; they said that, as regards the conversation on the telephone of 7 December, Mr Lawton produced a transcript of the conversation which he had taped. In evidence to the Tribunal Mr Gray agreed with the contents of that document. They noted Mr Gray's contention that the employment was not terminated until a week's notice was given on 22 February, which expired on 1 March. In paragraph 2, the Tribunal stated the facts upon which they based their decision. It is unnecessary to repeat all those. They start with the commencement of Mr Lawton's employment in 1982. They dealt with the loss by Mr Lawton of his licence from the Department of Transport, in relation to M.O.T. testing. They dealt with the sickness leave from 30 September. They dealt in some detail with the telephone conversation. They made these findings of fact, following the telephone conversation:

"On the 19 January 1993 the Applicant wrote to the Respondent asking for written reasons for his dismissal stating that he was considering going to the Industrial Tribunal and in reply on 2 February 1993 the Respondents wrote to the Applicant stating that:-

1. he had not been officially dismissed and was still on the payroll receiving statutory sick pay;

2. they had 8 cheques waiting for collection for the statutory sick pay payments;

3. he had been offered an alternative position within the company to which he had not given an official answer,

and at the end of that letter the Respondent points out that if he is not willing to take the alternative job they will have no choice but to terminate his employment."

That letter was not answered by Mr Lawton. Instead he consulted solicitors and put in the application to the Tribunal. On 19 February, as Mr Lawton had not replied to the letter of 2 February, Mr Gray wrote terminating the employment with one week's notice from 22 February. There had in the meantime been another letter, which reasserted that Mr Lawton had remained on the payroll. The P45 was sent to Mr Lawton on 2 March. On the basis of those facts, the Tribunal considered the question of the effective date of termination. They referred to an important point on the Statutory Sick Pay payments. It appears that the position was, as confirmed by Mr Gray, (who has presented his own case today). Until 7 December the Statutory Sick Pay was paid in to Mr Lawton's bank account. That was under an informal arrangement, terminated on 7 December. The Tribunal found that after 7 December cheques were issued for Statutory Sick Pay. They were held in the office for Mr Lawton to collect. Mr Lawton was informed of that in a letter of 2 December. Although pay slips were issued and cheques were issued, they were never collected. So Mr Lawton never actually received any sick pay for the period after 7 December. Mr Gray also confirmed to us at the hearing that Mr Lawton did no further work for him after 7 December.

The Tribunal came in paragraph 5 to its conclusion:

"We find therefore that the date of dismissal was 22 February terminating his employment on 1 March..."

The Tribunal referred to Section 67(2) and said that the application did not come within Section 67(4). Therefore they had no jurisdiction to hear the application. In other words, there was no jurisdiction because the application had been issued prematurely. It had been issued before the effective date of termination. What is wrong in law with that decision? Mr Bibby from the Free Representation Unit has argued the appeal on behalf of Mr Lawton. He has made two points. It is only necessary for us to express a concluded view on one of them. The first point, which we regard as the main point that he had made (although it was second in his presentation) is that the Tribunal erred in law in finding that the effective date of termination was 1 March. The error of law came about because the Tribunal applied the wrong legal test to the question when the dismissal took place. Mr Bibby's submission which we accept, is that the correct test to apply to determine whether words used constitute a dismissal is an objective test. The test is whether a reasonable employee would have understood the words to be a dismissal, in the context in which they were used. Mr Bibby cited the case of J & J Stern v Simpson [1983] IRLR page 53 paragraph 7:

"... It is only if, as we understand the report, there is such ambiguity after looking at the words in their context that then a further test must be applied, namely, whether any reasonable employer or employee might have understood the words to be tantamount to dismissal or resignation. That is the test which we propose to adopt in this case; that is to say, we propose to look at the words in the context of the facts..."

That is the test, not the undisclosed subjective intention of the person who is actually using the language.

With that test in mind, we turn to the transcript of the telephone conversation, which was not basically disputed in its accuracy by Mr Gray. The crucial passage in the conversation which that took place between the two of them on 7 December was this:

"TERRY [LAWTON] - And as such I didn't see why I should be the one to go around the tyre bay which I was manager in the workshop I still stand by that I don't want to go around the tyre bay for a number of reasons and obviously you are putting in this letter that with regards to now the fact that your considering terminating my employment

KEN [GRAY] - Right

TERRY - Which basically to me sort of infers that you are giving me Hobsons Choice either I do as you say or I get the sack

KEN - Right

TERRY - That is

KEN - Yes right

TERRY - OK alright well on those basis then Ken I don't wish to go round the tyre bay and I can only take that, that basically you are sacking me

KEN - Yes well you know I dont like to put it as strongly as that but if that what it is thats what it is yes

TERRY - Would you do me the courtesy of sending me that perhaps in writing and also perhaps would you do me the courtesy of sending me the letter that you say that you sent me that I havn't received please"

In our view, the only interpretation that can reasonably be put on that conversation applying the correct objective test, is that Mr Lawton was sacked on the telephone. In our view, the Industrial Tribunal erred in law, in holding that dismissal took place at the later date, because between 7 December and 1 March, pay slips and cheques were issued, showing that Mr Lawton was receiving sick pay. Those matters are not legally relevant to the question of the effective date of termination of Mr Lawton's employment. If, as Mr Lawton has contended throughout, he was dismissed on 7 December, nothing that was subsequently done by his Employer in the matter of sick pay by issuing pay slips and issuing cheques, could reinstate him to an employment from which he had been effectively dismissed. The Tribunal were influenced in their conclusion in paragraph 5, by the matters in relation to sick pay, referred to in paragraphs 3 and 4. It was legally wrong for them to be influenced by those factors.

In our view, the Tribunal erred in law and the decision must therefore be reversed. There is no point in sending it back to another Tribunal to investigate the matter. The case turns on this point entirely on what was said in the telephone conversation and we have a complete transcript. In his submissions to us, Mr Gray made it clear that he, in his own mind, was clear that he had not dismissed Mr Lawton in the telephone conversation. He told us that Mr Lawton, like some other employees, hear what they want to hear. He did not believe that you could sack a person over the telephone. He thought that a letter had to be sent. No letter had been sent at that time. He agreed when we pointed out to him the incontrovertible facts that, after 7 December, Mr Lawton in fact received no sick pay; and did no work. In our view, everything that Mr Lawton did after 7 December was entirely consistent with his claim that he had been dismissed on that day.

The second point in the case is one on which we do not find it necessary to express a concluded view. Mr Bibby's submission was that the Tribunal had erred in law in failing to consider whether there should be an extension of time in accordance with Section 67(2). It does appear that there is some confusion still as to whether an application was made to the Tribunal to extend the time. There is also a most unfortunate history of this matter, subsequent to the first Tribunal hearing. We have been told how a second application was put in, which was never apparently received by the Industrial Tribunal. A third application was put in. At a later hearing of the Industrial Tribunal on 23 November 1994, it was decided that time should not be extended.

The case has had an unfortunate history of procedural mishaps. We have no doubt that the Tribunal have jurisdiction to hear this matter. What we propose to do is remit it to a differently constituted Tribunal to hear on the merits. In conclusion we would say two things: first, we emphasise to Mr Gray that no view has been expressed by either the Industrial Tribunal or this Tribunal so far on the merits of the case; that is the question, was he fairly dismissed or not? That has still to be investigated. The only question which has been decided so far is that the Tribunal has jurisdiction to consider the claim. A view on the merits of the claim can only be formed after that has been investigated and evidence has been heard on both sides as to the reason for Mr Lawton's dismissal and the circumstances in which he was dismissed. Secondly, in view of the unfortunate procedural delays which have occurred in this case, we take the view that this case should be brought before the Industrial Tribunal for a merits hearing as soon as possible.

Finally, Mr Gray has presented his case to us in person, as he is entitled to; we would point out to Mr Gray that it may assist him to seek legal help in presenting the case to the Industrial Tribunal. If he wishes to do it himself, he is entitled to. If he wishes to obtain representation, but is not in a position to afford to pay for it, there are organisations which can be consulted for advice and representation at no charge or a low charge. As Mr Gray will have observed today, Mr Lawton has the benefit of representation from the Free Representation Unit. They, therefore, would not be able to represent Mr Gray, but the Citizens Advice Bureau take on cases without charge, so do Law Centres. Most large towns have Law Centres. It is possible, if Mr Gray's means are such that he cannot afford legal representation, to make an application for Legal Aid for representation before the Appeal Tribunal. These are all matters for Mr Gray to consider before the matter comes back to the Industrial Tribunal for a hearing on the merits. For all the reasons given, the appeal is allowed and the matter is remitted to a different Industrial Tribunal.