United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 424_95_0503

Appeal No. EAT/424/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5th March 1996

Before

HIS HONOUR JUDGE N BUTTER Q.C.

MR K M HACK JP

MR N D WILLIS

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MR C CARR          APPELLANT

JOHN HENRY NEWMAN SCHOOL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR S A CLAY

(Representative)

For the Respondents MR S QUANTRILL

(Solicitor)

Messrs Graham & Oldham

Solicitors

Electric House

Lloyds Avenue

Ipswich

IP1 3HZ


 


JUDGE BUTTER Q.C.: This is an appeal by Mr Carr in respect of a decision of an Industrial Tribunal held at Bedford on 10th January 1995. The unanimous decision of the tribunal was that Mr Carr was not dismissed within the meaning of Section 55 of the Act and that therefore the tribunal had no jurisdiction to hear a claim for unfair dismissal.

Before that tribunal Mr Carr appeared in person. The respondents instructed Counsel on their behalf.

Before this tribunal today, Mr Carr has had the advantage of being represented by Mr Clay to whom we are grateful for the arguments which he has presented.

In their extended reasons, the tribunal dealt with the background to the case. Mr Carr had worked on an hourly pay rate basis at the John Newman School under what the tribunal called "a fixed term arrangement ... due to expire on the 22 July 1994". They refer in their reasons to a letter dated 18th May 1994, which apparently arrived on 26th May 1994. That letter appears at the end of the bundle at our page 37 and is in these terms:

"Dear Mr Carr

I am writing to thank you for your hard work and commitment in the delivery of the BTEC modules this year. As you know, your commitment to BTEC for this academic year will be completed on Thursday, 26th May. Your outstanding commitment to the Sixth Form Sociology course continues beyond this date.

As of next year we shall no longer require your services for either BTEC or Sociology. I would like to take this opportunity to wish you well in your future."

One of the points made on this appeal today is that the tribunal have misquoted the letter. I shall refer to this at a later stage.

On 6th June 1994, there was a meeting between Mr Kelly, the Headmaster, and Mr Carr. Mr Carr was upset at having received the letter. He did not return to work thereafter, but did send Doctor's Certificates which showed that he was suffering from stress, and indeed sick notes were subsequently provided which, in effect, took Mr Carr up to the end of July 1994.

Before the expiry of the fixed term agreement, Mr Carr submitted an application to the Industrial Tribunal. It was dated 24th June 1994 and apparently reached the tribunal office on 28th June 1994. In that, he said that his dates of employment were from September 1986 to July 1994. He complained of unfair dismissal. I pause to say that if the matter had proceeded fully before the tribunal the question of continuity of employment would have had to have been considered. In relation to the date "July 1994", it is argued on behalf of Mr Carr today, that a person in his position may be unsure of the precise period of time during which his contract or contracts may run.

The tribunal deal with Section 55 of the Act to which I will return shortly. They then say:

"6. In this case the applicant's IT1 clearly predated the date that the contract expired in July. The letter of the 18 May did not in the unanimous view of the tribunal amount to a dismissal of the applicant. It specifically mentioned his continuing to work to the end of the fixed term."

They say in paragraph 7 of their reasons:

"7. The applicant alleged at the hearing that the letter date the 18 May amounted to a constructive dismissal of him but the tribunal were unanimously of the opinion that there was nothing about the letter which could in anyway be interpreted by the applicant as grounds for claiming constructive dismissal. The applicant himself regarded his employment as continuing to July 1994 according to his IT1 from and certainly submitted sick notes to explain his absence from work until the end of that month.

In all the circumstances the tribunal were unanimously of the opinion that they did not have jurisdiction to hear an application in this matter."

Before this tribunal today, a number of different matters have been argued on behalf of Mr Carr. One concerns an alleged failure by the tribunal to afford natural justice to Mr Carr. The Notice of Appeal, which was drafted by Mr Carr himself, does not refer to this aspect. The matter came before the Employment Appeal Tribunal at a preliminary hearing, as is the normal practice, and was considered by Morison J and others. Whilst he directed that the matter proceed to a full hearing, he did not make any order that the appellant should provide an affidavit as to what had happened and no order was made for production of notes by the Chairman. A note was taken however, on behalf of the respondents; it is not an agreed note, and indeed Mr Carr takes exception to some of its contents, though on a material point it does in fact assist him.

What appears to have happened before the tribunal is that Mr Carr did give evidence, but there then came a stage when Counsel for the respondents asked the Chairman to deal with the question of whether there had been a dismissal or not, and submitted that the IT1 was premature, that there had been on any view, it was contended, no dismissal at that date. The tribunal it seems then adjourned to consider the matter, reached a conclusion that that argument was correct. Mr Carr says that he was not given the opportunity of dealing with the point or arguing the matter in the way he should have been permitted to.

Mr Carr also complains concerning the IT3. This in its original form admitted a dismissal but an amendment was allowed by a different Chairman of the Industrial Tribunal just before Christmas, to permit the employers, the respondents, to raise different matters. That IT3 does in fact raise a whole series of points which Mr Carr would have had the opportunity of considering. One of the contentions put forward in it was that there had not been a dismissal the date of presentation of the application. One of Mr Carr's grievances is that the overall effect of what happened is that he has been prevented from making any new application.

We have considered these matters with anxiety. We feel it necessary to return to consider the specific question which arise.

In relation to paragraph 9 of the skeleton argument which has been prepared on behalf of the appellant, Mr Carr would like us to rule on four specific points:

(a) whether the Industrial Tribunal should have allowed the respondent to amend their IT3 after the time which prevented Mr Carr from making a fresh application.

So far as that is concerned, the tribunal did have a clear discretion, and it is not appropriate for the Employment Appeal Tribunal to interfere with the exercise of that discretion unless it is plain that no reasonable tribunal could have exercised its discretion in that way. We are unable to say that.

In relation to (b) we consider it appropriate in deciding whether there was any failure by the tribunal to give Mr Carr the opportunity of addressing it to say that he did give evidence but, it would seem, may not have taken on board sufficiently the jurisdiction point which undoubtedly did arise. We turn therefore to consider that particular point.

This involves consideration of Section 55 of the 1978 Act. Under Section 55(1) it provides:

"(1) In this Part, ... "dismissal" and "dismiss" shall be construed in accordance with the following provisions of this section

(2) Subject to subsection (3), an employee shall be treated as dismissed by his employer if, but only if,-

(a) the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice, or

(b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract, or

(c) the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct."

Subsection (4) deals with the effective date of termination.

Under Section 67, headed "Complaint to industrial tribunal", it is provided by subsection (1):

"(1) A complaint may be presented to an industrial tribunal against an employer by any person (in this Part referred to as the complainant) that he was unfairly dismissed by the employer.

(2) Subject to subsection (4), 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."

Subsection (4) is self-explanatory, and I do not think that I need make any specific references to the remainder of that section.

As to the argument presented by Mr Clay concerning the word "presented", we are with respect entirely unable to accept that. It seems to us that plain in the context that the word "presented" means "applied for".

In relation to the question of notice, subsection (4) refers. We are not able to accept the argument that the effect of a fixed term contract is that the employee is given notice at the outset. Fixed term, in fairness, is a phrase capable of more than one interpretation.

As to (c) in the skeleton argument, we have considered the case of Throsby v Imperial College [1977] IRLR 337, see in particular paragraph 18. There Mr Throsby was able to make another application, and in that sense the case is distinguishable from the present one but the basic principle is not, in our judgment, distinguishable. We have considered the earlier case of BBC v Ioannou [1975] IRLR 184, and also have looked and considered the much more recent case of Boateng v London Borough of Hackney, a judgment of the Employment Appeal Tribunal presided over by Mrs Justice Smith, given on 6th February 1995.

I return finally to the decision of the Industrial Tribunal. We accept that they misquoted the letter of 18th May 1994. We find it impossible to say however that the tribunal were not entitled to reach the conclusion which they did, namely that the letter did not amount to a dismissal.

We have considered all the arguments presented to us. Mr Carr, I know, will appreciate that it is not for this tribunal today to re-try the matter. We have to consider whether it has been shown that as a matter of procedure or law, the tribunal below have erred. Having considered all the points raised we are unanimously of view that that has not been established with the result it must follow that this appeal fails and is dismissed.