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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Tallon v Manchester TEC Ltd [1996] UKEAT 210_95_1801 (18 January 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/210_95_1801.html
Cite as: [1996] UKEAT 210_95_1801
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EAT/213/95, EAT/214/95, EAT/215/95, EAT/228/95
HIS HONOUR JUDGE C SMITH QC
MRS T MARSLAND
MR K M YOUNG CBE
MR A MAHIMWALA
MS K MARSH
MS D SINCLAIR
MR D DAWSON
MR A KUFUOR
MRS H CLEMPNER
JUDGMENT
Revised
APPEARANCES
For the Appellants MR M F MANNAN
(Counsel)
For the Respondents MR P NICHOLLS
(Solicitor)
Messrs Dibb Lupton Broomhead
Solicitors
Carlton House
18 Albert Square
Manchester
M2 5PE
JUDGE SMITH QC: This is an appeal by the seven Appellant employees against a decision of the Industrial Tribunal held at Manchester on 4 January 1995, where, on the hearing of a preliminary issue, the Industrial Tribunal held that it had no jurisdiction to hear the Appellants' employees complaints of unfair dismissal or under the Wages Act, since it was the decision of the Industrial Tribunal that their complaints were not presented within the three-month time limit, beginning with the effective date of termination of their employment, and it was reasonably practicable for them to have brought such complaints within that period.
Before I come to the submissions that have been presented to us today on each side; by Mr Mannan on behalf of the Appellants and by Mr Nicholls on behalf of the Respondents, we must deal with the background of the matter. The background can be shortly stated for the purpose of this appeal. All the Appellants were employed by the Respondent on the TEC 1000 project. It is quite clear that they were all employed on fixed term contracts with the exception of Mr Dawson, who had been employed as we understand it on an indefinite basis, since about 1991. He was not treated in any different way and for the purposes of this appeal, we consider he is to be treated as though he had a fixed term contract expiring on 31 March 1994.
There was a lack of funding with the result that redundancies had to be considered. Ultimately a decision was taken to dismiss these Appellants on the grounds of redundancy. There are substantive issues to be tried should the matter proceed to a full hearing before the Industrial Tribunal, as to whether the redundancies were fair dismissals and no doubt issues under the Wages Act. We are concerned, we repeat, with the Industrial Tribunal's decision on the preliminary issue, which we have referred to above.
In our judgment it is quite clear on authority in particular the cases of Adams v GKN Sankey Ltd [1980] IRLR 416 and from Chapman v Letheby & Christopher Ltd [1981] IRLR 440, that where an employer relies on a notice of termination having a particular effect, he is required to demonstrate unambiguously that it has that effect. Any ambiguities in the notice properly construed, must be resolved in favour of the employee, since otherwise an employee may be left in doubt as to where he stands and may lose his statutory rights. It is important in our judgment to appreciate that the starting position here was that the employees were told, unequivocally, by the Respondent's letter of 29 November 1993 as follows:
"I am therefore giving you notice that your employment with Manchester TEC Ltd will terminate on 31 March 1994 due to redundancy."...
What then happened was that as a result of a management decision taken on or shortly before the 13 January 1994, it was decided that the Respondents would seek to bring the notice period forward. Accordingly a meeting was held at which the Appellants were told that their employment was to end on 4 February 1994. A confirmatory letter to this effect was sent to each of the Appellants on 13 January 1994. Counsel for the Appellants, Mr Mannan, has realistically accepted that had the matter stood there, then it would have been clear that the Respondents had, with the apparent consent of the Appellants, been successful in bringing forward the effective date of termination to 4 February 1994. It has rightly been accepted before us that that letter, if it stood alone, does achieve that legal result.
However, the submission is made to us by Counsel for the Appellants that the matter certainly did not stop there, because on 1 February 1994 the trade union representative Mr Wilkinson, then representing all these Appellants, wrote to the Chief Executive of the TEC asserting that as things stood he would be contending on behalf of the Applicants, that, if the dismissals were to go ahead, they would be unfair, and suggesting that the simple solution would be to withdraw the redundancies. He concluded in his letter with a direct reference to the position with regard to termination as then understood by the Appellants that:
"... they are due to finish on 4 February 1994"
Mr Read, the Chief Executive of TEC, replied to that letter on 1 February 1994 - that is before the 4 February 1994 - in which he stated on two separate occasions that the Appellants' contracts expired on 31 March 1994. With regard to the arrangements made on 4 February 1994 he stated:
"Your letter states that the employees are to leave on 4 February. All the staff affected are being paid until 31 March, but have been given the opportunity of leaving earlier if they so wish."
Reliance is particularly placed by Counsel for the Appellants on the words "but have been given the opportunity of leaving earlier if they wish". He submits that this can only be interpreted as meaning that there was no obligation upon them to leave on 4 February 1994. He submits that looking at the three letters together, namely 25 November 1993, 13 January 1994, and 1 February 1994, the Respondents had not made the position sufficiently clear and failed to demonstrate unambiguously that the effective date of termination was 4 February 1994.
Mr Nicholls, for the Respondents, submits that there is nothing in the letter of 1 February 1994 can detract from the clear position achieved by the letter of 13 January 1994. He further submits that the Industrial Tribunal found as a fact that the letter of 1 February 1994 does not qualify, let alone over-ride, the letter of 13 January 1994.
In our judgment it is very important to bear in mind that letters of this kind must not be construed in a technical way, but should be looked at as they would be understood by an ordinary reasonable employee. We have of course reminded ourselves that what is the effective date of termination is, at the end of the day, a question of fact. It is only if the Industrial Tribunal have reached a conclusion that is plainly erroneous that we can interfere. However, it is also right to say that at the end of the day it is a matter of construction of the relevant letters and if we conclude that the Industrial Tribunal's decision is plainly wrong, then in our judgment we can interfere. We should particularly mention that the experienced lay Members of this Employment Appeal Tribunal are both very strongly of the view that any reasonable employee would be left in a genuine state of doubt as to whether his employment had in fact been terminated on 4 February 1994 on a reading of the three letters, which we have referred to above.
In our judgment the wording of Mr Read's letter is open to the interpretation that no firm decision had been taken by the Respondents that the Appellants had no right to work on beyond 4 February 1994, and accordingly created an ambiguity, put at its lowest, prior to 4 February 1994, as to what the true position was. We accept that as at 13 January 1994 there was evidence that the Appellants knew at that time that the Respondents were then saying that the effective date of termination was 4 February 1994, but the fact remains in our judgment that negotiations were still continuing and the exchange of letters between Mr Wilkinson and Mr Read took place before the deadline of 4 February 1994. In our judgment, the Industrial Tribunal erred in holding that the later correspondence did not create an ambiguity as to just what the Respondents were stipulating for, especially in the light of the general reluctance, in the absence of unambiguous action by an employer, on the part of the Courts to construe an employer's action as shortening the notice period.
We should emphasise that in our judgment the position here is different from a case like Stapp v The Shaftesbury Society [1982] IRLR 326 where an employer had stated "I must ask you to relinquish your duties with effect from today 7 February 1981" and thereby summarily dismissed him. In that case the employer was clearly summarily dismissing with immediate effect in a wholly unambiguous way. In our judgment the present case is crucially different because at all times up to 4 February 1994 the parties remained in negotiation, and in our judgment the earlier clarity of the Respondent's position had been rendered ambiguous by the letters passing between Mr Wilkinson and the Chief Executive Mr Read.
We should say finally that we are pleased to reach this conclusion, since it was only on the day before the hearing at the Industrial Tribunal that, for the first time, the Respondents sought to maintain that the effective date of termination was 4 February 1994, on the basis of the letter of 13 January 1994. At all material times prior to that date, they had fully accepted that the effective date of termination was 31 March 1994 and that the applications were brought in time. So, for the reasons we have given, the appeals are allowed and we order that the Industrial Tribunal had jurisdiction to hear these complaints so that all the cases are remitted to the Industrial Tribunal, either the same Tribunal or a fresh Tribunal, to proceed to a substantive hearing of these complaints.