United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R WESTON (Representative) Citizens Advice Bureau Sussex Lodge 44 Station Road Taunton Somerset TA1 1NS
For the Respondents	MISS L CHUDLEIGH (Of Counsel) Messrs Veale Wasbrough Orchard Court Orchard Lane Bristol BS1 5DS


 


MR JUSTICE LINDSAY: On 13 September 1996 there was promulgated the decision of the Industrial Tribunal in a case which, at that stage, had eleven former employees as Applicants and two companies as Respondents: Brendon Foods Ltd as first Respondent and Bridgwater Beef Co Ltd the second Respondent. Amongst the eleven Applicants at that stage were a Mr Ralph, Mr Kent, and Mr Boothe. Each of those three, who are the only three we are concerned about in this appeal, had claimed unfair dismissal and unfair selection for redundancy against the first Respondent, Brendon Foods Ltd.

We do not quite know how it came about but it was the case that a number of preliminary points had been identified as proper to be taken before a full hearing of the complaints of the Applicants. The first to be taken of the preliminary points concerned whether the Applicants (and we are, as I say, only now concerned with three of them) had launched their IT1 applications in time. The only Respondent who is interested in this point at this stage is the first Respondent, Brendon Foods Ltd., for whom Mr Weston has appeared. The second Respondent, we suspect, will take an interest in this matter in connection with questions that arise as between Brendon Foods Ltd and Bridgwater Beef Co Ltd, in relation to a transfer between them. That was one of the other preliminary questions that was identified but it does not concern us, at all events at this stage.

The question that concerned the Industrial Tribunal was whether the three that we are interested in had lodged their complaints within the time required. The time required is set, or was at the time set, by Section 67(2) of the 1978 Act, which I shall read:

"(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."

That reference to the effective date of termination throws one back, or did at the time throw one back, to Section 55(4), only part of which need be read:

"In this Part "the 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;..."

In each case here the employment is said by the Applicants to have ended on 22 March 1996. The IT1 Originating Applications were received by the Industrial Tribunal on 18 June 1996. They are all date-stamped to that effect, and, of course, that date is within three months from 22 March. So that if 22 March, as the former employees claim, is the correct starting date, then their claims cannot be barred on the ground that they are out of time, but, of course, that leaves the question - was the 22 March 1996 the effective date of termination? The first Respondent asserted before the Industrial Tribunal that the correct date was 22 February 1996, and, if that is the case, then the Applicants' applications were out of time. The decision of the Industrial Tribunal was a unanimous decision that the applications were dismissed for that reason.

It is necessary to look in a little detail at the sequence of events, because there were, unusually, here two forms of notice given to employees. It is sufficient to take the notices and their forms from the matters found in the Extended Reasons. At paragraph 2 the Industrial Tribunal says this:

"The following are the relevant facts. On 29 December 1995 a notice was given, the relevant part of which reads as follows:

"... Brendon Foods Limited will close on 22 March 1996. ... I am writing, therefore, to give you formal notice to terminate your employment with Brendon Foods Limited. Your contract of employment will terminate on 22 March 1996 during which period you will be required to work normally.

You will be aware that under your contract you are entitled to 12 weeks notice. If it becomes necessary for Brendon Foods Limited to close on a date earlier than 22 March 1996, we reserve the right to give you only your contractual entitlement to notice"."

So that is a termination with notice, with the notice expiring on 22 March 1996, and, if that had been the position and nothing had changed, then Miss Chudleigh, for the first Respondent, accepts that 22 March would have been the proper date and hence the IT1 applications on 18 June would have been in time. But one has to continue, and, to continue with the way in which the Industrial Tribunal expressed it, it runs as follows;

"In fact that occurred, [that is a reference back to the right being exercised to give the employees only their contractual entitlement to notice] and on 19 February another letter was written, the relevant part of which is as follows:

"We refer to the notice ... 29th December 1995, in which we reserved the right to give you only your contractual notice. We are now exercising that right, and accordingly advise you that your contract of employment will terminate on 22-2-96. At 22-2-96 you will still have [4] weeks un-expired contractual notice.

You will receive pay in lieu of notice to cover the period from 23-2-96 to 22-3-96 the latter date being the end of your contractual notice period"."

It is to be noted that the Industrial Tribunal applies that letter to the case of each of the Applicants. There might have been grounds to distinguish between the various Applicants depending on the precise form of letter sent to each, but, so far as concerns facts found, which is what we are concerned with, that letter is found to apply equally to all, and we have not had any argument to counter that. So that is a letter of 19 February, which was a Monday, and proposing to terminate employment on 22 February, but describing itself as exercising the right to give only contractual notice in the way that we have read out.

We shall assume in the employer's favour that it is possible during the currency of one notice to give another notice effective at the same end date or an earlier end date or even a later end date. The case of Stapp v Shaftesbury Society [1982] IRLR 326 would give support for such a view. So we would not hold that the first letter necessarily took effect or that it could not have been countermanded by some second letter. Plainly the second letter, on any reading, was, within Section 55(4), a case of employment being terminated by notice because, even on the most extreme form of construction, it would be notice on 19 February to terminate employment on 22 February. So the passage in Section 55 within which this falls is plainly that of sub-section (a); hence the "effective date of termination" means the date on which the notice expires. But what is the date on which that notice expires? There is here, as it seems to us, a considerable degree of confusion within the very short lines which the Industrial Tribunal cited in paragraph 2:

"... we reserved the right to give you only your contractual notice. We are now exercising that right,..."

That suggests that what is being given is the full period of contractual notice which has been reserved to be given, but the letter goes on to point out that:

"... At 22-2-96 you will still have [4] weeks un-expired contractual notice."

The concluding part cited by the Industrial Tribunal points out that the end of the contractual notice period is 22 March 1996. Looking at that part "we are now exercising that right" would thus suggest that what is being given is a notice that expired on 22 March 1996 and that employment was brought to an end on that later date. Yet, confusingly, as it seems to us, in the very same paragraph the letter says "your contract of employment will terminate on 22 February 1996".

It is plain that, as a document, the letter of 19 February must be read as a whole. The clarity of the expression "your contract of employment will terminate on 22 February 1996" is completely muddied by the reference to there then being exercised a right to give contractual notice in the circumstance that the contractual notice period is, within the very same letter, described as expiring on 22 March.

One cannot pick little bits from the letter. The document has to be read as a whole. Now that is an unfortunate confusion that had been brought about solely by the form which the employers chose to use in their letter of 19 February. The Act, Section 67(4), which we have cited, gives no discretion to an Industrial Tribunal to allow an application otherwise out of time to be in time save in the very limited circumstance where the Industrial Tribunal is satisfied that it had not been reasonably practicable for the complaint to be presented before the end of the three month period. There is, unfortunately, unlike a number of other provisions in this area, no alternative open where, for example, the demands of justice so require.

So far as concerns the exception about the reasonable practicability of presenting proceedings earlier, that was dealt with by the Industrial Tribunal in their paragraph 8:

"There is no suggestion that it was not reasonably practicable to present the claims in that period. The cases hinge entirely on the effective date of termination."...

So that possibility was expressly rejected. However, that, as it seems to us, is not the end of the matter. We have had a number of authorities cited to us, none of them on all fours with the problem which is before us, which is one of a confusing notice having been given to employees in a draft formulated by the employer.

There are, as it seems to us, in the second letter, mutually conflicting provisions, with no other passages in the letter of 19 February which can be relied upon as assuredly pointing to the true intended meaning. However, at this point, a well-established rule of construction comes to the employees' aid: in case of doubt a man's own legal acts should be construed against him since the person who dictates the terms of the transaction cannot complain of his not being given the benefit of the doubt. He cannot complain of not being given the benefit of the doubt because it is his fault that the doubt has been created. The benefit of the doubt - that is to say, which was truly intended by the 19th February letter, a termination as at 22 February or an exercise of the right to give a contractual notice which expired on 22 March - the benefit of that doubt must, it seems to us, be given to the employee and not to the employer whose draftsmanship caused that doubt to come into existence. There is some assistance, again, to be found in the Stapp case [1982] IRLR 326, where, at paragraph 16, the Court of Appeal in the judgment of Lord Justice Stephenson said:

"I entirely agree with Mr Widdup's submission that, perhaps even more than a notice to quit premises, a notice to terminate employment must be construed strictly against the person who gives it, the employer, and if there is any ambiguity it must be resolved in favour of the person who receives it, the employee. Such a case was the case of Chapman v Letheby & Christopher Ltd, reported in [1981] IRLR 440; and I entirely agree with what Mr Justice Browne-Wilkinson there said about ambiguity in such a document as this."

In that particular case, no ambiguity was found, and I should add that Chapman v Letheby has not been cited to us, but plainly that is a view that accords with the contra proferentem rule to which I was earlier referring.

Applying that approach, that doubt must be construed against the employer and in favour of the employee. It seems to us that we must therefore take the position to have been that there was an exercise of the right to give contractual notice, contractual notice ending on 22 March 1996. On that basis, of course, the application to the Industrial Tribunal on 18 June were within time.

It might be said that there is another route to the same conclusion. The first letter of 29 December 1995 was crystal clear and the employment termination that it related to was to take effect on 22 March. It might be said that that letter was to stand unless it was clearly countermanded, and that the confusing terms of 19 February were not sufficiently clear to over-rule or override the earlier clear provisions of the letter of 29 December.

The Industrial Tribunal did not, it would seem, notice the conflict between the two passages in the letter of 19 February which we have described as inconsistent and in contention with one another. They did not notice the doubt that the employer had created by the form in which he had couched his second letter and they therefore did not see that the employer could not complain of not being given the benefit of that doubt. In that respect, we see that the Industrial Tribunal erred in law. We would not wish to associate ourselves with any suggestion of fault or blame in that regard. The Applicants at that stage did not have a legally qualified representative to present their case. But we must take notice of the error of law even whilst excusing it.

Accordingly we allow the appeal. We remit the matter to the Industrial Tribunal for it to consider which is the better course, namely to have yet further preliminary hearings to deal with such preliminary points as refer to the transfer between the two Respondents, or. on the other hand, whether it is better to go straight to the main body of the claims. That is a matter on which we could not, on the information available to us, take any view. We leave that to the Industrial Tribunal. So we allow the appeal and remit the matter to the Industrial Tribunal. We make no order as to costs.