United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	MR B CARR (of Counsel) Instructed by: Mr E Farrelly Messrs Eversheds Solicitors London Scottish House 24 Mount Street Manchester M2 3DB


 


JUDGE PETER CLARK: This is an appeal by the applicant before the Manchester Employment Tribunal, Mr Greenall against that tribunal's decision, promulgated with extended reasons on 11th September 1998, following a hearing on 26th August, dismissing his complaint of unfair dismissal against his former employer, Stanley Leisure PLC, on the grounds that it was out of time.

1. The background is as follows. The appellant commenced employment with the respondent on 22nd June 1981. He rose to the position of Chief Cashier based at the respondent's Stanley Bolton Casino. By January 1998 he had amassed a number of warnings on his disciplinary record, and on 15th January his Line Manager, Mr Doyle, issued him with a final written warning for failing to follow Company procedures resulting in cash shortages. That warning was contained in a letter dated 19th January 1998. Against that penalty he appealed to his General Manager, Ms Wright.
2. On 10th February 1998, Ms Wright dismissed that appeal.
3. On 11th February he attended a further meeting with Ms Wright in respect of further disciplinary matters and was issued with a verbal warning in relation to those matters, but by reference to the final written warning, Ms Wright decided to dismiss him.
4. That dismissal was confirmed by a letter dated 12th February in these terms:

"Dear Mr Greenall,

This letter is confirmation of your dismissal from the Stanley Bolton Casino on Wednesday, 11th February 1998. You will be paid all monies due to you plus twelve weeks pay in lieu of notice as stipulated in your staff handbook.

Should you wish to appeal against this decision you should do so within 7 days of receipt of this letter to Mr J Pickford, Regional Manager, Stanley Bolton Casino, Higher Bridge Street, Bolton BL1 2HA.

If any appeal results in your re-instatement, then monies outstanding from your pay in lieu of notice will be reclaimed by the Company."

5. Thereafter, there followed a succession of appeals against the final written warning, against the verbal warning and against the dismissal. We need not chronicle each and every step in the process which followed.
6. Finally, on 10th June 1998, the appellant was informed by the final appeal authority, Mr Gibson, that his appeal against dismissal was unsuccessful.
7. On 6th July 1998 the appellant presented a complaint of unfair dismissal to the Employment Tribunal. In that document he gave his dates of employment as being from 22nd June 1981 until 11th February 1998. By their Notice of Appearance the respondents resisted the complaint and took the point that the complaint was made outside the primary three-month limitation period provided for in s.111 of the Employment Rights Act 1996. It was that preliminary point which came before the tribunal at Manchester sitting on 26th August 1998.
8. It is quite clear from the tribunal's extended reasons that the hearing proceeded on the basis that the effective date of termination for the purposes of s.97(1) of the Act was 11th February 1998. The tribunal went on to consider whether or not the appellant had shown that it was reasonably practicable to present his complaint within the primary limitation period. In particular, at paragraph 4 of their reasons the tribunal notes that:

"4. … The applicant has confirmed that within a few days of his dismissal on 11 February, certainly within 10 days, he consulted his solicitor and the solicitor advised him, in connection with a complaint to the Industrial Tribunal, that, the state of the employment law of England being what it was at that stage, it was imperative that the applicant pursue the internal appeals procedures. …"

Acting on that advice, he said, he pursued the internal appeals procedure until it was exhausted by his receiving Mr Gibson's letter on 12th June 1998 dismissing the final appeal. The appellant then consulted his solicitor and was, he said, for the first time, advised of the existence of the three-month time limit in s.111 of the Act.

9. The tribunal having directed themselves in accordance with the Court of Appeal judgment in Palmer and Saunders v Southend Borough Council [1984] IRLR 119, concluded that it was reasonably practicable to present the complaint within the primary limitation period, and in those circumstances, dismissed the complaint as time barred.
10. Against that decision Mr Greenall appealed. His appeal came on for ex parte preliminary hearing before a division of this Appeal Tribunal presided over by Mr Justice Holland sitting on 17th March 1999.
11. The matter was allowed to proceed to this full appeal hearing and we see from the judgment given on behalf of the Appeal Tribunal by Mr Justice Holland on that occasion, that the basis for allowing the matter to proceed was as follows, at page 3H of the judgment:

"We are impressed by what appears to be the situation, namely that that procedure [the internal appeals procedure] could, in its turn, have presumably resulted in the rescission of either or both of the decisions under appeal, so that he remained employed; and, in those circumstances, we do raise the point as to whether the effective date of termination was on 11 February, or whether it was on some other and subsequent date, arguably 10 June 1998. We hasten to add that we have not had the benefit this morning of any citation of authority and we have not ourselves, done research into the cases bearing on this topic. We recognise that it may well be that a proper investigation of the law will show that this point simply cannot be maintained, but the particular circumstances of this case do provide an occasion where the merits would strongly suggest a construction favourable to Mr Greenall."

12. Since that preliminary hearing Mr Greenall has consulted solicitors, Ramsbottom & Co of Blackburn, and he tells us that he has received the opinion of Counsel experienced in employment law, Mr Paul Gilroy. Today, he appears in person before us as he did before Mr Justice Holland's tribunal.
13. This being an inter partes hearing, the respondent is represented by Counsel, Mr Bruce Carr, to whom we are indebted for a careful and thorough skeleton argument. Mr Carr has drawn attention to the decision of this tribunal, Mr Justice Browne-Wilkinson presiding, in Robert Cort v Charman [1981] ICR 816, for the proposition that where the letter of dismissal is clear in its terms, and the dismissal is said to take immediate effect but with pay in lieu of notice, then the effective date of termination is that original date. We are aware of the earlier cases where a distinction is drawn between a summary dismissal with pay in lieu of notice and dismissal on notice but without a requirement that the employee works out the notice and indeed where the balance of pay is paid in one lump sum.
14. However, it seems to us on the facts, that this is plainly a case in which dismissal took effect immediately on 11th February 1998 with payment of the notice monies in lieu of his having to work out notice. Furthermore, it is clear to us that from that date Mr Greenall himself proceeded on the basis that his employment had been terminated on 11th February, hence the dates of employment which he has put in his Originating Application.
15. Even more fundamentally, Mr Carr, correctly in our judgment, takes the point that before the Employment Tribunal it was not suggested by or on behalf of Mr Greenall that the effective date of termination was other than 11th February 1998. In these circumstances, following the Court of Appeal decision in Jones v Burdett Coutts School [1998] IRLR 521, it would not, it seems to us, properly be open to the appellant to take the point before us that the effective date of termination of his employment was other than 11th February 1998.
16. In these circumstances, having had the benefit of citation of authority, including the Court of Appeal decision in Sainsbury v Savage [1981] ICR 1, which deals with the distinction between a dismissal which is effective unless and until an internal appeal results in reinstatement and a dismissal where the dismissal is suspended pending the outcome of that internal appeal, that there can be no argument but that the effective date of termination was 11th February 1998.
17. Accordingly, this complaint was brought outside the primary three-month limitation period.
18. It is not entirely clear to us whether the appeal was also allowed to proceed in relation to the tribunal's finding that it was reasonably practicable to present the claim within the primary three month limitation period. In fairness to Mr Greenall, we have considered that finding by the tribunal and we have concluded that it is a finding open to the Employment Tribunal and one with which we cannot properly interfere. We bear in mind the words of May LJ in Palmer that the question of reasonable practicability is essentially a question of fact for the Employment Tribunal. We have also been referred by Mr Greenall to the Court of Appeal decision in London International College Ltd v Sen [1993] IRLR 333, a case which Mr Carr very properly drew to Mr Greenall's attention and he in turn brought to our notice. The then Master of the Rolls, Sir Thomas Bingham, made certain remarks concerning the earlier decided cases, including Dedman v British Building & Engineering Appliances Ltd [1973] IRLR 379 CA and Riley and another v Tesco Stores Ltd [1980] IRLR 103 CA, and the principle emerging from those cases that an applicant is not able to go behind advice, albeit wrongly given to him, by a solicitor or other adviser for the purpose of arguing that it was not reasonably practicable to present his claim within time. We have considered those observations, but we note that the Master of the Rolls did not seek to depart from the earlier well-established principle.
19. In these circumstances, it seems to us that it was open to the Employment Tribunal to find that even if the appellant was given bad or inadequate advice by his solicitor as to the time limit for bringing a complaint of unfair dismissal, that is not a matter on which he could rely for the purpose of showing that it was not reasonably practicable to present his claim within time.
20. In these circumstances and not without sympathy for Mr Greenall, we shall dismiss this appeal.