United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 769_93_1910

Appeal No. EAT/769/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 October 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR T C THOMAS CBE

MS D WARWICK

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MR C J LUCAS          APPELLANT

OFFMECH BUSINESS SYSTEMS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR B COTTER

(of Counsel)

Messrs Ottaways

(Solicitors)

1 St Peter's Street

St Albans

Herts AL1 3DJ

For the Respondents MR M WEST

Personnel Consultant

Peninsula Business Service Ltd

Stamford House

361-5 Chapel Street

Manchester M3 5JY


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at London South on 13 August 1993. At the hearing the Applicant, Mr Lucas, appeared in person and the Respondents, his former employers, were represented by Mr Hull, a director. The Respondents are Offmech Office Services Ltd.

For Full Reasons given by the Tribunal on the same day, it was unanimously decided that the Tribunal had no jurisdiction to hear Mr Lucas's complaint of unfair dismissal and his application was, therefore, dismissed.

The reason why the Tribunal found that there was no jurisdiction was that it formed the conclusion, after hearing evidence from both Mr Lucas and from the Respondent's director, Mr Hull, that the application to the Industrial Tribunal had been presented after the end of the period of three months, beginning with the effective date of termination. On the facts before it, it was reasonably practicable for Mr Lucas to have presented his application within the three-month period. By virtue of the provisions of s.67(2) of the Employment Protection (Consolidation) Act 1978, the Tribunal did not have jurisdiction to hear his complaint of unfair dismissal.

Mr Lucas was dissatisfied with that ruling. He appealed by notice of appeal dated 22 September 1993.

The case first came on for hearing in the Employment Appeal Tribunal on 21 June 1994 when a Tribunal, differently constituted than the Tribunal today, heard submissions from Mr Cotter, on behalf of Mr Lucas and from Mr West on behalf of Offmech, granted leave to Mr Lucas to amend the notice of appeal and adjourned the matter.

The leave to appeal was granted in respect of the new paragraph 8 of the notice of appeal. That added a further ground of appeal along these lines: that the Tribunal had decided the case against Mr Lucas on the basis of a point which was never raised by the company Offmech and had decided it against Mr Lucas, without giving him the benefit of an adjournment, so that he could take legal advice and consider his position on a point raised for the first time at the hearing. There had been no prior warning of the point in the documents submitted to the Tribunal by Offmech.

The grounds of appeal are, first, that the Tribunal erred in law in coming to the conclusion that it had no jurisdiction. That argument is mainly based on what was the effective date of termination of Mr Lucas's employment. The second ground of appeal is that the Tribunal erred in law in the manner in which it conducted the hearing on which it made that ruling, namely the failure to consider Mr Lucas's position as a non-represented person and failing to advise him that an adjournment might be in his best interests.

The case has to be looked at in the light of the dispute which gave rise to the proceedings. That can be briefly summarized. There is no need to go into many of the details of the case, because this is not an appeal from a decision on merits. The merits have not been considered in view of the jurisdictional ruling.

Mr Lucas's case is set out in his application to the Tribunal. His complaint was that he was unfairly dismissed from his position as a service engineer with Offmech, a position which he had held for many years and which he said in the IT1 had ended on 12 May 1992. If that was the correct effective date of termination of his contract of employment, then the application was presented within the three months' time-limit required by s.67. It was presented on 15 July. He gave details of the grounds of his complaint. It is unnecessary to go into those details save to say this: he said that on 19 February he was informed, following a visit from Mr Hull, that Offmech had no alternative but to terminate his employment and he was given 12 weeks' notice to expire on 12 May. The only other relevant event referred to for the purposes of this appeal was that he says that on 31 March 1992 he was told to leave on the basis that his notice would expire on 12 May.

The notice of appearance put in by Offmech stated that the ground of dismissal was incapability and in the box which asks:

"Are the dates of employment given by the applicant correct?"

it is ticked:

"Yes".

There was no clerical error in the notice of appearance dated 26 August 1992. It spelt in the more detailed grounds for resisting the claim that the company believed that it was fair and reasonable to dismiss Mr Lucas. It was expressly stated that his employment was terminated with effect from 12 May. There was no reference in the IT3 to anything of significance happening on 31 March 1992.

The case came for hearing before the Industrial Tribunal. The Tribunal prefaced the decision by saying that the circumstances of the hearing had been very unusual. They had started to hear the employer's evidence on the unfair dismissal claim. It is not unusual in an industrial tribunal to find, where the employee is unrepresented, the employer brings his evidence first. They then said that towards the end of evidence given by Mr Hull it became clear that, on that evidence and on the documents, the effective date of termination of Mr Lucas's employment was probably 31 March 1992 and the originating application had been presented on 15 July. In those circumstances the Tribunal decided to hold what they describe as "a hearing within a hearing" to determine whether s.67(2) of the Employment Protection (Consolidation) Act 1978 meant that there was no jurisdiction to entertain Mr Lucas's complaint.

The Tribunal heard evidence from Mr Lucas, took into account documents, including the P45 and another document, which we have been shown a copy of, referred to as document 22. That is a manuscript document on an Offmech compliment slip dated 31 March 1992 which says:

"C.J. Lucas. Holiday pay 7.31 days. 379.55

Tax 94.75

N.I.C. 34.30 128.95

250.60

Add payment in lieu of

notice 1/4/92-12/5/92 1,540.38

£1,790.98".

In regard to the evidence they had heard and those documents, the Tribunal found the facts as follows:

"4. Mr Lucas was given 12 weeks' notice of dismissal. That dismissal was to take effect on 12 May. He was actually summarily dismissed on 31 March within the notice period with pay in lieu of notice up to 12 May. It is absolutely clear on the evidence that the effective date of termination was 31 March 1992. After he was dismissed Mr Lucas consulted a solicitor: he did that a few days, perhaps a week, after the dismissal. Mr Lucas told us that the solicitor was aware of the time limit for unfair dismissal and both he and she were working on the basis that the effective date of termination would be 12 May. The Originating Application was presented at the Central office of the Industrial Tribunals on 15 July 1992; that is some 15 days out of time."

It was for those reasons that the Tribunal found that they had no jurisdiction and dismissed Mr Lucas's complaint.

The Chairman of the Tribunal has been helpful in providing notes of evidence, both of Mr Lucas and Mr Hull and has also provided explanations of the circumstances in which this decision was made. The letter from the Chairman explains that Mr Lucas was not represented, that the procedure and statutory provisions were explained to him by the Chairman, along with the relevant law relating to capability. The Chairman explains that it was during Mr Hull's evidence that the question of the Tribunal's jurisdiction was raised and the Chairman then explained the provisions of s.67 and explained that, if there was a jurisdictional question, the Tribunal had to take it, because s.67 was worded in a way that precluded jurisdiction on time-limits, the wording being that the Tribunal shall not consider a complaint unless it is presented within three months.

The Tribunal considered that the best way to resolve the problem was to hear Mr Lucas's evidence to see in the first place whether there was a conflict between his evidence and Mr Hull's as to whether the application was presented out of time. The Tribunal also considered the question of reasonable practicability. The evidence given by Mr Lucas indicated that the claim was out of time and that it was reasonably practicable to present it within the time limit. It is explained that, in those circumstances, having regard to Mr Lucas's evidence, there was no useful purpose in suggesting there should be an adjournment.

Before us the main argument advanced in support of the Tribunal's decision has been for this proposition: that, having regard to the evidence, it was open to the Tribunal to conclude, as it did, that this was a case of summary dismissal more than three months before the presentation of the originating application. As it was open to the Tribunal to reach that conclusion on the facts, it was not open to the Employment Appeal Tribunal to interfere with the conclusion. In those circumstances, the appeal should be dismissed.

Mr West, who presented these arguments for Offmech, supported his submissions by reference to a number of cases. All of the cases were concerned with what was, in the particular circumstances of those cases, the effective date of termination of the contract of employment. The effective date of termination is at the heart of the dispute because, under s.67(2), the limitation period of three months begins with that date.

The effective date of termination is defined in the 1978 Act in s.55(4). Three definitions are given. Only two of them are relevant:

"(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;"

Mr West referred to various decisions on the effective date of termination: Robert Cort & Son v Charman [1981] ICR 816, Crank v Her Majesty's Stationery Office [1985] ICR 1, Dedman v British Building & Engineering Appliances Ltd [1974] ICR 53 and, in our view, most helpfully to his case, the Court of Appeal decision in Stapp v The Shaftesbury Society [1982] IRLR 326. We intend no discourtesy to Mr West when we say that we do not find it necessary, for the purposes of deciding this appeal, to refer to any of the authorities other than Stapp v The Shaftesbury Society.

Stapp v The Shaftesbury Society was a case similar to this in this respect: that notice was given to an employee terminating his contract of employment and then, during the period of notice, he was, on the facts of that case, summarily dismissed. The Tribunal held that the effective date of termination in that case was the date on which he was summarily dismissed. It did not matter whether or not he was under notice. In fact, it did not matter whether he was wrongfully dismissed or rightfully dismissed. The importance of the case for present purposes is that it is quite clear from the judgment given by Lord Justice Stephenson and by Sir David Cairns that the question whether somebody under notice has been summarily dismissed or not depends on the actual communication between the employer and the employee. Stephenson LJ observed that if there was any ambiguity in the communication it has to be resolved in favour of the person who receives it, that is, the employee. In that case, he could find no ambiguity. The communication relied on as effecting the summary dismissal was a letter. The Court of Appeal, like the Industrial Tribunal and Employment Appeal Tribunal before them, had no difficulty in deciding that the letter did terminate employment summarily. It was not simply a request or instruction to the employee to stay away from work for the remainder of the period of notice. Stephenson LJ said that, having regard to the wording of that particular letter, he could not believe that the employee:

"or any reasonable employee receiving that letter would have any real doubt about what it was telling him, namely that his employment was thenceforth at an end."

That case is helpful as indicating the approach which a Tribunal should adopt to deciding whether someone was summarily dismissed, in which case s.55(4)(b) would apply, or whether a person was under contract of employment terminated by notice, in which case the effective date of termination was the date on which notice expired. Mr West's submission was that the Tribunal in this case were entitled to come to the view that 31 March was the date on which full performance of the contract ceased. Mr Lucas went home with pay in lieu of notice and he was not to return. In those circumstances, the effect of what happened on 31 March was that the contract of employment, which was originally to terminate on the expiration of the notice, terminated on that day as a result of the summary dismissal.

We are unable to accept Mr West's submissions. In our view, the Tribunal erred in law in the determination of this question. The only correct conclusion on the documentary and oral evidence before it was that this was a s.55(4)(a) case. That means that the contract was terminated by notice, a notice which expired on 12 May and, therefore, the application was presented within the three months.

Mr Cotter has argued the case in favour of Mr Lucas. Having taken us to the notes of evidence and the relevant documents, he submitted that the correct analysis of the situation is as follows: that it was common ground that the dismissal on 19 February 1992 was a termination of contract of employment by notice, which did not expire until 12 May. That dismissal was never actually revoked. The evidence of the language used by the employer on 31 March was not consistent with there being a summary dismissal on that date. If there was any ambiguity in what was said by Mr Hull on that date, that should be construed in favour of Mr Lucas, in accordance with the Court of Appeal's decision in Stapp. He pointed to the fact that payment in lieu of notice to Mr Lucas on 31 March was not conclusive on the question of a summary dismissal. He submitted that the employer's intention was clear, as stated in the notice of appearance. It was not the employer who raised the question of summary dismissal. The Tribunal came to a decision whereby the employers were held to have dismissed the applicant summarily, but the employers never asserted such a fact as part of their defence to the claim.

The employers never said that there was a summary dismissal. They never took any point on the facts that there was a time-limit problem with the case. We agree that the Tribunal must itself be satisfied as to the jurisdiction of the Tribunal, but here the Tribunal was faced on the IT1 and the IT3 with an agreed fact, that is, termination on 12 May. If the Tribunal felt unhappy about that as a correct statement, they were entitled to look into it further. But there was nothing in the notes of evidence or the documents which unambiguously displaced what was clearly a prior termination of the employment contract on notice.

In those circumstances, we agree with Mr Cotter that the decision of the Tribunal to the effect that there was a summary dismissal on 31 March 1992 cannot be supported. There was a failure on the part of the Tribunal to appreciate the law was on this matter or a failure on the part of the Tribunal to identify the relevant facts to which the law should be applied.

In those circumstances, we shall allow the appeal.

As to the new point that was raised by paragraph 8 of the notice of appeal, which gave rise to the adjournment of the first day of the hearing of this appeal, Mr Cotter made a number of points on which it is unnecessary to express a concluded opinion. His case was that, although the Tribunal had a discretion to regulate its own proceeding, it was up to it to decide what was the most just way of handling the case. The course adopted by the Tribunal here was not a just handling of the case, having regard to Mr Lucas being unrepresented faced for the first time by the Tribunal with a point that had not been taken by the employer. The Tribunal should have been careful to make sure he was given a fair opportunity to deal with his case. That had not been done here.

All we say is that it might have been better to adjourn the matter, but from what we have seen on the notes of evidence and the documents, there really was no prejudice to Mr Lucas by refusing to adjourn the matter because the Tribunal heard the evidence. We have not had any indication from Mr Cotter that there was any evidence, which would have been available, other than that of Mr Hull and Mr Lucas. In our view, the error of law by the Tribunal in this case was in its misapplication of the law to the facts.

For those reasons, the appeal is allowed. Subject to any further submissions, this matter will now proceed in the Industrial Tribunal to be heard on the merits. We Order a legal aid taxation of the Appellant's costs.