United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P THORNTON (of Counsel) Instructed by: Ms Frances Low Solicitors Department London Underground Ltd 55 Broadway London SW1H 0BD
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT


 


MR JUSTICE MORISON (PRESIDENT): In this case the employee, Mr Fitzgerald, had been employed by the respondent appellants, London Underground Ltd ["the employer"], as a Train Guard on a fixed term contract which was to run from 14th March 1994 to 17th March 1995, and then under a further fixed term contract from 18th March 1995 to 19th March 1996. Under what was section 142 of the Employment Protection (Consolidation) Act 1978 but now section 197 of the Employment Rights Act 1996, an employee loses his right not to be unfairly dismissed where he is employed on a fixed term contract for a period of one year or more and the contract contained a provision expressly excluding that statutory right. But the statute only excludes that right when "the dismissal consists only of the expiry of that term without its being renewed" (section 197(1)(a)).

Section 95 of the 1996 Act (formerly section 55 of the 1978 Act) defines the circumstances in which an employee is dismissed for the purposes of the relevant part of the Act.

It provides, so far as is relevant to this appeal:

" (1) ... an employee is dismissed by his employer if (and, only if)-

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

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

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

In this case, the Industrial Tribunal concluded that the employee's contract was for a fixed term of more than one year; that it contained the relevant clause excluding the unfair dismissal provisions; but that the "dismissal" did not consist only of the expiry of the contractual term.

The relevant passage in the judgment of the Industrial Tribunal is:

"In the Tribunal's opinion, the Applicant's dismissal did not consist only of the expiry of the term; it was clearly linked to a dismissal related to the capability of the employee, not only referred to in the Respondent's Notice of Appearance but also implied in the letter of 9 July 1996 from the Respondent's Head of Litigation advising that the exclusion clause point was to be argued in addition to the matters referred to in the Notice of Appearance."

It seems to us that the Industrial Tribunal have erred in law. The phrase "it was clearly linked to a dismissal related to the capability of the employee" must involve the Tribunal in concluding that there was a dismissal falling within subparagraph (a) of section 95(1) of the 1996 Act, since it was not and could not have been suggested that the employee himself terminated the contract. There was no foundation in fact for a finding that the contract had been terminated either by notice or without notice under subparagraph (a). The employers had written to the employee on 14th February 1996 informing him that his fixed term contract would terminate on its expiry date "in accordance with paragraph 1 of your contract of employment ...". In fact the relevant form of contract did not have numbered paragraphs but we think that it is simply wrong to suggest that a letter informing an employee that the contract will expire, in the language 'I am writing to confirm that your fixed term contract will terminate' and that he would thereafter cease to be employed, amounts to a notice of termination amounting to a dismissal. There is, we think, a clear distinction between telling someone that a contract will end through effluxion of time, on the one hand, and exercising a power contained in a contract to bring it to an end by notice, on the other.

Further, we think it was wrong of the tribunal not to have addressed themselves to the provisions of section 95 and conclude, if that were their decision, that there was a dismissal within subparagraph (a). The phrase "it was clearly linked to a dismissal" was not a satisfactory conclusion since it begs the question 'what dismissal'. Had they confronted the requirements of section 95 we have no doubt that the tribunal would have appreciated that their conclusion that the letter concerned was a dismissal simply could not stand. It seems to us that the dismissal in this case clearly fell within subparagraph (b) of section 95(1) rather than subparagraph (a).

The second reason for their finding was dependent upon documents generated after the dismissal, in connection with the tribunal proceedings. As a matter of principle, it seems to us that the question whether the employee's contract ended on 19th March (the effective date of termination) by reason of a dismissal within subparagraph (a) or subparagraph (b) was not to be resolved by events that occurred afterwards. Further, in principle the question whether there was a dismissal within subparagraph (a) was not sensibly to be resolved by looking at the subjective intention of the employer. Just as an employer could not be heard to avoid dismissal by saying he did not intend what he wrote to have that effect; so, also, the converse. Finally, it would be open to an employer who was entitled to take the exclusion point not to take it. Whether he takes the point or not cannot alter the correct legal analysis.

It seems to us that the Industrial Tribunal have fallen into the trap of allowing their heart to rule their heads. It must be emphasised that it is their responsibility to do justice according to law; that means that the law must be applied even if they had misgivings about the consequences of their decision. They are not there to do justice according to the way they think justice should be done.

Accordingly the appeal is allowed. It is our conclusion that the Industrial Tribunal does not have jurisdiction to adjudicate upon the complaint of unfair dismissal, and we make that clear because a date had been fixed, namely tomorrow, for the hearing of the complaint of unfair dismissal which in the light of our decision will not now take place.

We would also like to add that the respondent to this appeal, the employee, did not appear as he was entitled not to do, but that in reaching our conclusion we have fully considered the material which he provided to us. Indeed, we are grateful to him for giving us a copy of the contract and the letter of 14th February to which we have referred.