United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS Y GENN (of Counsel) Russell Jones & Walker Swinton House 324 Gray's Inn Road London WC1X 8DH


 


JUDGE J HICKS QC: Mr Sandell, the Appellant, was employed by the Respondent employers, the London Borough of Hackney, from 29 June 1993 and worked his last day with them on 23 June 1995 in circumstances in which the employer's contention at that time and before the Industrial Tribunal was that his last day of employment was 25 June, which was a Sunday and that, no doubt, is why the last day of actual work was Friday the 23rd. He complained to the Industrial Tribunal of unfair dismissal and also of racial and sexual discrimination in relation to that dismissal.

The Industrial Tribunal rejected the discrimination claims and there is no appeal against that decision. They also found that they had no jurisdiction to entertain the complaint of unfair dismissal on the basis that the employment did, in truth, end on 25 June 1995, as contended for by the employers and therefore the employment had lasted for less than two years. It is against that finding that Mr Sandell appeals and Ms Genn on his behalf has ably argued two distinct points.

We take first what was in order of presentation the second of those points. This is that at the hearing on 17 March 1997, and/or between that date and the promulgation of their Reasons on 7 April 1997, the Tribunal should have taken into account the decision of the House of Lords in the case of R v Secretary of State for Employment ex parte Seymour-Smith [1997] ICR 371, which had been handed down on 13 March. In fact, so far as days of the week are concerned that was a Thursday and the hearing was on the following Monday. Taking that into account, Ms Genn submits, the Industrial Tribunal should have considered whether to exercise its discretion to adjourn the decision to a further hearing, dependent upon the outcome of the Seymour-Smith case, which had been referred by the House of Lords to the European Court with a view to a decision, ultimately, whether, to put it very briefly, unfair dismissal compensation is "pay" for the purposes of Article 119 of the Treaty of Rome and therefore susceptible to the equal treatment provisions of that Article, which have direct application between employers and employees. We say no more about that ground because we propose to allow it to go forward to a full hearing as being arguable and we therefore express no opinion as to whether, when argued, it should succeed or not. But we limit the hearing to that point because we are satisfied that the other point raised by the Appellant is unarguable and should stop here.

The background to that other point is as follows. There was a meeting between Mr Sandell and a member of the employer's management on 23 May 1995, a Dr Whelan. The employers contended, and the Tribunal found as a fact, that at that meeting Dr Whelan gave Mr Sandell notice of termination of employment expiring on 25 June. The Tribunal deals with the fact that the letter written in purported confirmation of that meeting on 26 May mistakenly referred to what had happened as a resignation, a mistake corrected in a letter of 23 June, the very day of Mr Sandell's last day of work and leaving party.

Having reviewed the evidence, including that correspondence, the Tribunal, as I say, found as a fact that the effective notice was the oral notice at the meeting of 23 May and that therefore the mistake in the letter of 26 May did not alter that position. That finding, on the face of it, is a straightforward finding of fact and as such unappealable. The point sought to be raised is that the Tribunal do not, in their Reasons, refer to or express any judgment on the effect of an exchange of letters which was before them, in which on 19 September 1995 (nearly three months later) Mr Sandell wrote to Ms O'Connor, the Directorate Personnel Officer, about his complaints and she replied on 3 October, and it is effectively the reply of 3 October on which the Appellant relies. Ms O'Connor says in it that she had recently taken over responsibility of the personnel service for Finance and that she had investigated the circumstances. It is apparent, therefore, that she was not herself involved in the May and June events. She says:

"It seems clear that the letter sent to you dated 26 May 1995 was incorrect [and that is manifestly so]. This was corrected in the letter to you dated 23 June which notifies you of termination of your employment."

Then in the next paragraph she says:

"In looking at your contract it seems to me that as your last day with the authority was Friday 23 June 1995 you were entitled to one weeks notice which has not been given."

She either does not know about or pays no attention to the meeting of 23 May on which, in the event, the employers relied, and she may well have been right - it is not for us to say - in expressing the view that absent that meeting the correspondence would have shown no effective notice. But then she goes on to say:

"The effective date of your termination of employment is the 23rd June which is the date your contract was terminated."

So she is clearly approaching the matter on the basis that the employment was effectively terminated on that date, albeit without proper notice and that is, no doubt, the reason why she then goes on to say:

"The Council is prepared to offer you damages for the loss of pay to which you would have been entitled to during your contractual notice period. This will amount to a sum equal to a weeks pay."

Ms Genn then puts that in two ways. She says, first, that that was an expression of the opinion of an agent of the employers which the Tribunal should have taken into account. We reject that submission. The opinion of the employers about the matter was neither here nor there and the Tribunal was entitled, and indeed bound, to reach its own decision on the evidence.

Secondly she says that that was a variation of the contractual provisions about notice. That, in our view, is equally hopeless. First of all it does not purport to be anything of the kind. Secondly it was after the notice, if effective as the Tribunal found, had long since expired. Ms Genn expressly and, in our view rightly, disavows relying on the letter as raising any estoppel because there is no evidence that Mr Sandell acted on it to his detriment.

That, in our view, disposes of all the ways - certainly of all the argued ways - in which this letter could have affected the Tribunal's decision and we see no error of law in the fact that they failed explicitly to mention it in their Reasons. We add that the fact that they did not explicitly refer to it in their Reasons is by no means to be taken as showing that they paid no attention to it. Having paid attention to it, in our view, they were under no obligation to discount the sort of arguments that have been raised today, even if they were raised then, of which we know nothing.

For those reasons we would dismiss the appeal so far as that ground is concerned, but as I have already said it shall go ahead to a full hearing on the European point.