United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J BENNETT (Representative)


 


JUDGE PETER CLARK: The employee and respondent to this appeal, Mrs Rainbird, commenced employment with the appellant as a cashier in their Hertford Road, Enfield betting office on 25th September 1987.

On 30th March 1996, Grand National Day, the appellant was working at the office with the Branch manager, Mr Robins, an employee known as Clare, and a casual employee called Nick. It is the busiest day of the year for bookmakers. During the course of that day Nick was, in the vernacular, "winding up" the respondent. The manager did nothing to stop this behaviour and in mid-afternoon the respondent left the premises before her work was completed.

On 1st April she wrote to the District Manager, Mrs McKenzie, to apologise for walking out but explained that she had been provoked. The letter was copied to the Area Manager, Mr Hunt.

Thereafter a meeting was arranged at the Head Office between the respondent and Mrs McKenzie on Friday, 12th April. The respondent thought it was to be an informal meeting, but it soon turned into a disciplinary hearing. After a short adjournment Mrs McKenzie returned to say that the respondent was summarily dismissed. The respondent was shocked and upset and after being escorted from the building returned home with her daughter.

On Monday 15th April the respondent was telephoned by Miss Hamilton of personnel. She said that she wanted to arrange a meeting with Mr Hunt. The respondent expressed surprise because she said the contract had been terminated by Mrs McKenzie, but Miss Hamilton replied that the occasion had not been a satisfactory conclusion and the dismissal had been overruled.

On 16th April Miss Hamilton telephoned the respondent again to repeat that the dismissal had been revoked, and on 17th April Mr Hunt wrote to the respondent to confirm that fact. The applicant, the tribunal found, was confused, and told them, and they accepted, that she did not take the view that Mr Hunt's action was genuine. Nevertheless, she agreed to attend a meeting with him which took place on 1st May 1996.

On that day a meeting took place at which Mr Hunt confirmed that the dismissal had been overturned and that the respondent could return to work but said that no decision had yet been made as to what form the disciplinary action would take. She said she preferred to await the outcome of the disciplinary hearing.

The respondent was then invited to attend a disciplinary hearing on 9th May but that letter crossed with one from the respondent to Mr Hunt in which she said she would not attend the meeting because she had no further interest in doing so.

On 8th May she received a further letter from Mr Hunt requesting her to attend a disciplinary hearing on 9th May. She did not attend and Mr Hunt decided to deal with the disciplinary process in her absence.

As a result, on 14th May he wrote to her to say that he had reviewed the disciplinary proceedings and had decided to offer her reinstatement in her old job, saying that the offer remained open until the close of business on 20th May 1996.

However, on 9th May the respondent had filed a complaint of unfair dismissal at the Central Office of Industrial Tribunals, and she never accepted the offer of reinstatement.

Her case came before an Industrial Tribunal sitting at Stratford on 10th October 1996. She appeared in person; and the appellant was represented by a personnel manager, Mr Jolly.

Mr Jolly, relying on a decision of this appeal tribunal in Martin v Yeoman Aggregates Ltd [1983] ICR 314, submitted that a dismissal which had been revoked is no dismissal, therefore the application must fail. That submission was rejected by the tribunal which found that dismissal took place on 12th April 1996, and that it was unfair, both substantively and procedurally. It went on to find that the respondent had contributed to her dismissal to the extent of 10% by walking out on 30th March. The issue of remedies was adjourned until 14th November, with a view to allowing the parties an opportunity to reach agreement if they could.

Extended reasons for the tribunal's first decision were sent to the parties on 4th November 1996, and on 14th November the tribunal was reconvened. On that occasion according to the tribunal the parties reached agreement and compromised the claim on payment by the appellant of a sum of £2,000 to the respondent in full and final settlement of the claim.

That settlement was recorded in a decision with summary reasons promulgated by the tribunal on 3rd December 1996. The decision reads:

"1 Following the finding of this Tribunal on the 10 October 1996 and promulgated to the parties on 4 November 1996 and during the remedy hearing before us today, we are delighted to be able to confirm that the parties have agreed between themselves that the Respondent will pay to the Applicant the sum of £2000 within fourteen days from the date of this order, which sum will be accepted by the Applicant in full and final settlement of both her basic and compensatory awards which arise form our earlier finding.

2 Accordingly and at the parties request we make no formal order in regard thereto."

The tribunal go on to set out summary reasons for that decision.

On 12th December 1996 the appellant gave Notice of Appeal against both decisions.

As a preliminary question we raised with Mr Bennett, now appearing on behalf of the appellant, the question as to why no extended reasons for the Industrial Tribunal's remedies decision had been obtained. He accepts that no request to the tribunal was made for those reasons.

Rule 3(1)(c) of the Employment Appeal Tribunal Rules 1993 provide that an appellant will lodge with his Notice of Appeal extended reasons for the decision of the Industrial Tribunal appealed against. That has not been done. Rule 39(2) permits us to dispense with summary reasons in an appropriate case, however, such cases are rare. See William Hill Organisation v Gavas [1990] IRLR 488. We shall return to the absence of extended reasons when we consider Mr Bennett's second submission in this appeal.

He takes two points, the first is whether a dismissal communicated to an employee on a Friday and withdrawn by a senior manager on the following Monday amounts to a dismissal in law. Secondly, whether an employee who has been offered full and unconditional reinstatement, but has failed to take up that offer, has failed to mitigate her loss.

As for the first point, we have considered the case of Martin. We note that at the beginning of the judgment, Kilner Brown J, giving judgment on behalf of the appeal tribunal said this:

"It has come as a matter of great surprise to us that neither counsel had been able to find authoritative decision on the precise points which fell to be decided by this Industrial Tribunal."

The facts shortly in that case were that the employee was verbally dismissed by a director of the appellant company, Mr Hammond.

"Within a matter of five minutes Mr Hammond realised that he had said things in a fit of temper which he was not authorised to do and which were in breach of the agreed procedures for dealing with a disciplinary situation. So Mr Hammond comes back again and say of this occasion 'You are suspended without pay for two days'. Mr Martin was not having any of that and off he went."

Later that same day Mr Hammond instructed the personnel manager to write a letter to the employee indicating that he had been suspended with pay for two days to allow time for a rational decision to be made.

The Employment Appeal Tribunal upheld the Industrial Tribunal's decision that the employee had not been dismissed as a matter of law. This was an appeal by the employee not the employer. In giving its reasons for that conclusion the appeal tribunal took the view that in certain cases it was possible for an employer to recover from dismissary words and in effect to revoke the original dismissal.

For ourselves, we take the view that that case was decided per incuriam. In particular, the case of Harris and Russell Ltd v Slingsby [1973] ICR 454 a decision of the National Industrial Relations Court was not cited to the appeal tribunal for the well-known contractual principle that notice of termination once given and accepted by the other party cannot be unilaterally revoked. However, it is possible to explain the decision in Martin on the basis that the original words of dismissal were revoked before the employee had indicated his acceptance of the repudiatory breach by the employer.

The Industrial Tribunal in this case plainly concluded that it was too late for the employer to revoke the words of dismissal uttered on 12th April on the following Monday. Bearing in mind the employee's reaction on the Monday when telephoned by Miss Hamilton, which was that the contract had been terminated by Mrs McKenzie on the preceding Friday. We do not find the tribunal's decision surprising, let alone an impermissible option. In these circumstances we take the view that the tribunal was entitled to distinguish the case of Martin on its facts, and to conclude that dismissal took place on 12th April.

As to the second point, we return to the absence of extended reasons. It now appears that the appellants wish to challenge the tribunal's record of decision made in their decision promulgated on 3rd December 1996. It is said that there was no agreement to pay £2,000 in full and final settlement of the claim. Rather that a calculation in principle of loss amounting to £2,020.40 was reached and that at the invitation of the Chairman, Mr Jolly accepted that that could be agreed at £2,000.

We have been referred to a letter of 6th December 1996 written by Mr Jolly to the Chairman of Industrial Tribunals hearing this case, in which it seems to us, that having taken advice and having been advised that there may be grounds for appeal on the first point, that the employer was seeking to rewrite the remedies decision, so as to leave open the right of appeal on the question of liability, a matter which did not occur to Mr Jolly as we understand it at the hearing itself.

We are not prepared to go behind the written decision of 3rd December, particularly in the absence of extended reasons for that decision which might have thrown further light on to this submission. In our judgment it is abundantly clear and we have been told that this accords with Mr Jolly's notes, that the question of mitigation was raised at the initial hearing; that the Chairman said it should be raised again at the remedies hearing; it was, but the tribunal never adjudicated on the question of mitigation because before it could do so, the parties reached an agreement which settled the whole proceedings. In these circumstances, we see no grounds for interfering with the tribunal's decision, either that following the original hearing nor that following the remedies hearing. In these circumstances, this appeal must be dismissed.