United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 565_94_2111

Appeal No. EAT/565/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 November 1995

HIS HONOUR JUDGE P CLARK

MR D J JENKINS MBE

MR K M YOUNG CBE

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MR G HATCH          APPELLANT

SUN LIFE ASSURANCE SOCIETY PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MISS S GARNER

(Of Counsel)

Messrs Christopher Horley

Solicitors

Castle Place Shopping Centre

Market Street

Trowbridge

Wilts.

BA14 8AL

For the Respondents MR M GALBERG

(Of Counsel)

NOLEEN DIGNAN

Sun Life Assurance Society Plc

Chief Office

107 Cheapside

London

EC2V 6DU


 


JUDGE CLARK: The Appellant commenced employment with the Respondent on 28 February 1989. He was employed in the capacity of House Manager engaged in care-taking duties at the Respondent's property at Thames Link House, Richmond. On 3 February 1993, he was suspended on full pay, pending a disciplinary investigation. He was interviewed on 16 February. On 22 February the Respondent wrote to him in terms set out in paragraph 3 of the Industrial Tribunal's full reasons:

"You are to be dismissed on the grounds of misconduct. Under the terms of your contract of employment you are entitled to one month's notice of termination. However, you will not be required to serve this period or to attend the office again.

You will be given a cash payment in lieu of notice, which will be sent to you shortly."

It was agreed between the parties that if that letter operated as a dismissal, the effective date of termination of the contract of employment was 27 March 1993. The Respondent operate an appeal procedure and on 1 March the Appellant indicated that he wished to appeal against the decision to dismiss him. The Respondent wished to hold that appeal in Bristol, but the Appellant produced medical opinion to the effect that it would be harmful to his health to have to travel from London to Bristol. This led to some delay in the appeal hearing taking place. Eventually the appeal panel was convened in Bristol on 8 July and the Appellant attended. On 13 July the Respondent wrote the Appellant informing him that his appeal had been dismissed. He then lodged an Originating Application claiming unfair dismissal on 17 September.

The Respondent took the point that the complaint had been presented out of time and that the Tribunal had no jurisdiction to entertain it. Accordingly, that matter came before the London (South) Industrial Tribunal on 13 April 1994, to determine the preliminary issue as to jurisdiction. Before the Industrial Tribunal it was conceded on behalf of the Appellant that if the original notice had operated to terminate the employment on 27 March 1993, then the complaint was out of time. No reliance was placed on the "escape clause" in Section 67(2) of the Employment Protection (Consolidation) Act 1978. What was contended on his behalf was that the contract of employment was not terminated until after the determination of his appeal on 14 July 1993. If that was the case, then the complaint was presented within the ordinary 3-month time limit. Reliance was placed on what the Industrial Tribunal found to be a contractual provision in the following terms:

"The outcome of the appeal

The Committee's decision will be notified to both the employee and the manager, ENL, as soon as practicable.

If the Committee has failed to reach a decision by the date that the employee was due to leave, the employee will be suspended on full pay instead. The employee will be notified by letter when the decision has been made."

The Industrial Tribunal found that the Respondent's failure to pay the Appellant's wages pending the hearing of his internal appeal amounted to a breach of contract, entitling him to claim damages in the Civil Courts. However, they went on to conclude that the contract did not continue until the disposal of his appeal. They deal with their conclusions at paragraph 7 of their reasons in this way:

"In this case, however, there is no suggestion that that disciplinary procedure was complied with. If it had been, then we would have had no hesitation in holding that it extended the date of termination of the contract. But, in reality, implementing that clause was never in the contemplation of either party. There was no reference to it by either of them in correspondence and both parties acted as though the Applicant had ceased to be entitled to wages after receipt of the money paid to him representing the period between the letter of 26 February and the date of expiry of the original notice. Neither party saw the relationship as continuing. The Applicant's argument has all the hallmarks of someone picking up the disciplinary procedure some months later and arguing that the Applicant would have been entitled to wages and, by extension, that he is now entitled to consider that his contract was extended. That is not, however, the reality of what happened. We find, as a fact, that the contractual relationship between the parties terminated on 27 March 1993. The fact that it so terminated in breach of contract does not prevent that breach being effective in law to determine the contract and we refer the case of Batchelor v British Rail Board 1987 IRLR at 136."

Miss Garner, on behalf of the Appellant, contends that the Industrial Tribunal was wrong in law in concluding that the effective date of termination was 27 March 1993. She submits that the Tribunal ought to have found that the employment subsisted until after the internal appeal hearing in July. In support of that proposition she referred us to J.Sainsbury Ltd. v Savage ICR [1981] page 1, in which at page 7C of the report Lord Justice Brightman held that in that case the contract of employment would have been saved if the employee's appeal had been successful. Since it failed, it was not possible to rely on the contractual provision which provided for suspension without pay pending an appeal, but with full back-pay being made up, if reinstatement was granted following the appeal. Here, there is no limitation on the provision for suspension with full pay dependent on the successful outcome of the appeal. She also referred to Batchelor v British Railways Board in which in a notice of dismissal and in breach of the terms of the contract of employment the employer deleted a contractual provision which provided that no steps would be taken to give effect to the decision (to dismiss) until after an internal appeal had been determined. She points out that no such step was taken here, although we observe that the effective date of termination in that case was the original date of dismissal, notwithstanding the employer's breach of contract. Next she embarked on a review of the cases which decide that a repudiation by one party to an employment contract must be accepted by the innocent party, in particular, Gunton v Richmond-upon-Thames [1980] ICR 755, Boyo v Lambeth Borough Council [1994] ICR 727 and Dietmann v London Borough of Brent [1987] ICR 737.

We accept that proposition of law, although we understand from Miss Garner who appeared below, that no point on repudiation was taken before the Industrial Tribunal. Having considered these submissions, we find that we are unable to detect any error of law in the Tribunal's decision. A notice of dismissal was received by Mr Hatch on 27 February to take effect on 27 March. That was the contractual notice period. There was no actual or anticipatory breach by the employer before the 27 March, unlike the facts in Batchelor. If, as the Industrial Tribunal found this employer had suspended Mr Hatch on full pay pending his appeal, then the effective date of termination would have been extended until 14 July. That did not happen: probably because neither party realised that the relevant contractual position existed. Had Mr Hatch been aware of it and insisted on its performance, then, if the employer indicated a refusal to do so, it would have been in repudiatory breach and the contract would have continued until Mr Hatch accepted the breach. That did not happen. Instead, as we think the Industrial Tribunal was entitled to find, the original dismissal notice on a view most favourable to the Appellant, took effect on 27 March. We note that Mr Hatch received his form P45 and one month's pay in lieu of notice on 13 March and raised no objection.

In these circumstances the appeal must be dismissed.