United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR KEN CADOO (of Counsel) Messrs Wadesons Solicitors South Bank House Black Prince Road London SE1 7SJ


 


JUDGE COLIN SMITH QC: This is a preliminary application for leave to proceed to a full hearing by the appellants, B T Rolatruc Ltd, against the decision of an Industrial Tribunal sitting at Leeds on 27th September 1996, when the Industrial Tribunal held that the claim of Mr K Elvin, the respondent, that he had been unfairly dismissed by the appellants from his employment with them as a service engineer had been presented in time, i.e., within the three month time limit. We have reminded ourselves that the appellants before us have only to show an arguable point of law to be entitled to proceed to a full hearing of their appeal. We have had the benefit of hearing Mr Cadoo this morning, and we have also carefully considered the matters set out in the Notice of Appeal and in the skeleton argument which he has submitted to us on behalf of the appellants.

By its decision the Industrial Tribunal held that the effective date of termination of the respondent's contract of employment was 1st April 1996, so that his complaint presented on 25th June 1996 was presented in time. It is the appellants' contention that the Industrial Tribunal should have held, as a matter of law, that the effective date of termination of the contract was 1st March 1996, so that the complaint was out of time. The appellants rely principally upon their letter to the respondent dated 29th February 1996 for this contention.

By its findings of fact, the Industrial Tribunal found that by a letter dated 28th February 1996 the respondent, Mr Elvin, had given the appellants before us notice of termination of his contract of employment with notice, but without specifying the period of notice. However, at paragraph 2(c) of the decision the Industrial Tribunal found as a fact that the respondent's letter was accepted by the appellants, B T Rolatruc Ltd, as giving one months' notice. This finding was clearly based upon the statement in the appellants' letter of 29th February 1996, namely:

"You will not be required to work your one month's notice and will be paid your one month's pay in lieu of notice."

The Industrial Tribunal then analysed the legal position, as they found it to be, on the construction of the two letters. The Industrial Tribunal held that it was the respondent, Mr Elvin, who had given notice of termination and not the appellants. They pointed out that there were no words of dismissal in the appellants' letter; all that that letter did, in the view of the Industrial Tribunal, was to have the result that the respondent could not be required to work out his notice. The Industrial Tribunal found that although the respondent had been off sick and not able to work when he handed over his resignation letter of 28th February, it was a possibility that the respondent would be fit to resume work during the notice period. In the light of that analysis of the exchange of letters, the Industrial Tribunal held, applying TBA Industrial Products Ltd v Morland [1982] IRLR 331 and J R Lees v Arthur Greaves (Leeds) Ltd [1974] IRLR 93, that it was the respondent's letter and notice which was causative of the termination of his employment, whereas the letter from the appellants was not causative of anything. The Industrial Tribunal found that the fact that in their letter the appellants had stated that the respondent would not have to work out his notice and would be paid one month's pay in lieu of notice, did not affect the legal result, because the appellants' letter was not a letter of termination at all, so that the principles laid down by the court in the case of Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53, did not have application.

Alternatively, the Industrial Tribunal held that at most the appellants' letter was ambiguous, since it did not make clear that the appellants were purporting to terminate the respondent's contract on 1st March 1996. On one reading of the letter it left unchanged the original intention that the respondent's contract was not to come to an end until the end of the period of notice, namely on 1st April 1996, but that he would not have to work out his notice. Whereas, on another reading, it intended to terminate the contract on 1st March 1996. In such a situation of ambiguity, the Industrial Tribunal applied the dicta of Browne-Wilkinson J, as he then was, in the case of Chapman v Letheby and Christopher Ltd [1981] IRLR 440, and they set out the dicta upon which they relied.

It is submitted, in effect, in the skeleton argument and by Mr Cadoo today, that the Industrial Tribunal should have considered oral evidence given before the tribunal to the effect that it was accepted by the respondent that it was the intention of the appellants was that the contract should terminate on 1st March 1996. However, in our judgment, the issues relating to the effective date of termination before the Industrial Tribunal and accordingly to the issue of jurisdiction before them, turned entirely upon the proper construction of the two letters before them, not on oral evidence given after the event at the tribunal as to what was intended by the letters or what may have been intended by the letters. Accordingly we reject that approach to the matter. It is also pointed out to us, correctly, that there was a letter before the Industrial Tribunal which established that by 14th March 1996 the respondent had taken another job; but, in our judgment, that is no more than consistent with the situation that had been reached to the effect that the respondent was not being required to work out his notice, although the notice period remained in effect with regard to termination of his contract. In such circumstances it is plain that he was free to work, and therefore that would not have carried the matter any further in favour of the appellant's case in our judgment. In our judgment the Industrial Tribunal was clearly right to construe the appellants' letter as not being a notice of termination given by the appellants to the respondent. As the Industrial Tribunal put it in paragraph 3(b) of the reasons:

"There is no suggestion in the respondents' letter, [we interpose to note that the respondents before the Industrial Tribunal were of course the appellants before us] Exhibit R2, that they are not accepting his notice as such but are dismissing him. Although the applicant was sick and not able to work at the time, he was acknowledging that the respondents were entitled (as he believed) to one month's notice and that is what he was giving them. One presumes. although this was not said in evidence, there was always the possibility, if unlikely, that the applicant would be able to resume work during the one month period of notice. The Tribunal therefore finds that the notice given by the applicant was causative of the termination of his employment. The letter from the respondent was not causative of anything ..."

In our judgment, the Industrial Tribunal correctly construed the appellants' letter of 29th February 1996, and correctly applied to it the authorities to which the Industrial Tribunal referred. The effect of the appellants' letter was not to alter the one month notice period given by the respondent, it did no more than to amount to a unilateral statement that the appellants would not require the respondent to work out the notice period, and did not amount to a termination letter substituting a termination date of 1st March 1996. Accordingly it was the respondent's letter which remained causative of the termination of the contract of employment by notice with effect from 1st April 1996.

Alternatively, we also consider that the Industrial Tribunal was right in its finding that at most the appellants' letter created an ambiguity, in which case the Industrial Tribunal, in our judgment, correctly construed the letter against the meaning contended for by the appellants in reliance on the dicta of Browne-Wilkinson J in Chapman. Here again, despite the careful skeleton argument and the submissions of Mr Cadoo, we consider that the Industrial Tribunal were clearly right so that no point of law arises on appeal. Accordingly, in our judgment, in this particular case there is no arguable point of law, and the matter will simply have to proceed before the Industrial Tribunal with regard to the substantive issues raised by the respondent's claim that he was unfairly dismissed. We must dismiss this application.