United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 55_95_2107

Appeal No. EAT/55/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21st July 1995

THE HONOURABLE MR JUSTICE TUCKEY

MRS P TURNER OBE

MR K YOUNG CBE

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POLYPRINT MAILING FILMS LTD          APPELLANTS

A HARVEY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MS E HALFORD

(Solicitor)

Messrs Hansell Stevenson

13 Cathedral Close

Norwich

Norfolk

NR1 4DS

For the Respondent MS L SIMLER

(of Counsel)

Messrs Kershaws

160 Brompton Road

Knightsbridge

London

SW3 1RP


 


MR JUSTICE TUCKEY: This is an appeal from the decision of the Industrial Tribunal at Norwich who following a hearing of a preliminary issue on 28th November 1994 unanimously decided that the effective date of termination of the applicant's employment was 21st June 1994 and that they therefore had jurisdiction to deal with his claim for a redundancy payment and unfair dismissal.

The reason for that preliminary hearing was that the applicant had started his employment on 19th June 1992. In his IT1 he contended that the effective date of termination of his employment was 20th June 1994. In their reply the respondent employers, Polyprint Mailing Films Ltd, contended that the effective date was 17th June 1994.

Polyprint complain that the Tribunal erred in law by adopting a over-contractual approach to the resolution of the issue as to what was the effective date.

The applicant was employed as a printer under a written contract of employment which required the employers to give one weeks notice in writing of termination.

The facts found by the Tribunal are recorded in paragraph 3 of their extended reasons where they say:

"3 A meeting was held on the afternoon of 10 June [that is a Friday] at which we accept that the Applicant was told verbally that he was dismissed. He was asked to come back on the afternoon of Tuesday 14 June. In the intervening period a letter was prepared by the Respondents which contained the formal notification of termination of employment. This was handed to the applicant on the afternoon of 14 June."

We have that letter. It is dated 12th June which is a Sunday. It is headed:

"RE: NOTICE OF TERMINATION OF EMPLOYMENT"

[and is signed by the appellants Managing and Production Directors. It says:]

"As per our discussion which took place on Friday 10th June 1994, we hereby give you one weeks notice of termination of your employment with Polyprint Mailing Films Ltd."

The Tribunal in their reasons go on to say:

"4 We have approached this matter as one of contract law. There is a contract of employment in existence ... one clause of which relates to termination.[They then set it out]..."

"... It was accepted by [Polyprint] that this applied both to the themselves and to the applicant. If one has a formal contract the termination of that contract must be carried out in the manner specified in the contract. In other words the contractual arrangement between these parties can only be terminated by one weeks notice in writing. Therefore what occurred on the afternoon on the 10 June does not operate to terminate the contract at law unless that termination was accepted by the Applicant. There is no evidence that he did accept that as being the case."

What the Tribunal appear to be saying and this is reinforced by the opening words of the paragraph where they say they are approaching the problem as one of contract law, is that the attempt to terminate the contract on 10th June was a repuditory breach of contract. This would only have the effect of bringing the employment to an end if it were accepted as having that effect by the employee. As they found that he did not accept it, it was the letter which brought the contract to an end. Such a contractual approach was one which this Tribunal disapproved of in Court & Son Ltd v Chalmer [1981] IRLR 437, where the Industrial Tribunal had adopted a similar approach. There the employee had been undoubtedly summarily dismissed but the employers had paid one month in lieu of notice, and the Industrial Tribunal held that as he had not accepted the repudiatory breach involved in summary dismissal, the effective date of termination was the expiry of the period for which payment was more in lieu of notice. The judgment of this Tribunal was given by Browne-Wilkinson, J. The Tribunal disapproved of this approach for a number of reasons, the most important of which, is that Section 55(4) of the Act lays down what the proper approach. should be and this not the select contractual approach. We do not think it necessary to refer further to that decision.

Section 55(4) says:

"(4) In this Part "effective date of termination" -

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which that notice expires;

(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect ..."

So one is looking for when the termination takes effect or the date on which a notice expires. In subsequent cases this Tribunal has developed a pragmatic approach by saying what the Industrial Tribunal must do is look at all the circumstances and ask itself the question, when would the employee understand that his employment had come to an end. We were referred to Leech v Preston Borough Council [1985] ICR 192. In that case, as here, there was a meeting followed by a letter. Waite, J. said at page 195:

"Neither side has any quarrel with the approach to the process of determining the effective date of termination approved by this appeal tribunal in Chapman v Letherby & Christopher Ltd [1981] I.R.L.R. 440, where it was said that the approach to be adopted to the relevant words of dismissal must not be a technical one, but that such words fall to be construed in the light of the facts known to the employee at the time of notification. Chapman v Letherby & Christopher Ltd was a case in which the actual dismissal was notified by letter, but we do not think the principle there expressed was intended to be restricted to such cases. We think it should apply as well in cases where an employee has been dismissed by word of mouth and the employer's oral remarks have therefore to be construed; and also in cases like the present where there has been an oral notification of dismissal followed by a confirmatory letter and the oral and written words have to be read and construed together. Therein, unfortunately, lies the rub; for the terms of dismissal are required to be construed, as was said in Chapman's case, in the light of the facts known to the employee at the date when he receives the relevant communication."

It is apparent from what we have already said that we do not think that the process of reasoning following contract law that the Tribunal followed in this case was the right one. But both parties agree that the question of when the effective date of termination is in this case is one of law, and therefore it is open to us to decide as matter of law when that date was having regard to the facts found by the Tribunal.

Looking again at those facts we have a finding that there was a meeting on 10th June at which the applicant was told verbally that he was dismissed. Neither side contended before the Tribunal that the date of this meeting was the effective date of dismissal, so it was not a case in which either side was contending that there had been a summary dismissal on that date.

Then we have the letter which it seems to us is entirely clear in its effect. It is received by the employee on 14th June. His reference in his IT1 to 20th June was based on a mistake on his part as to the date when he received it. The Tribunal found that he received it on 14th June. It says "we hereby give you one weeks notice of termination of your employment". Now looking at what happened on 10th June when neither party are saying there was a dismissal there and then, and looking at what happened on 14th June when Mr Harvey received this letter, and asking oneself the non-technical question, when would Mr Harvey, have understood his employment had come to an end, there can, in our judgment, only be one answer. The letter is entirely clear. It says we are giving you a weeks notice by this letter which was handed to him on 14th June. Therefore the employment comes to an end on 21st June, as the Industrial Tribunal found. Ms Halford argued that the employers had given one weeks oral notice on 10th June and that the subsequent which was "a mistake" could not alter this fact. We do not agree. The Industrial Tribunal's findings of fact do not support this contention. At best it can be said that what happened on 10th June (with the request to return on 14th June) was equivocal. The letter is entirely unequivocal.

It follows that we think that the Industrial Tribunal reached the right conclusion, on albeit by the wrong route. The appeal is dismissed.