United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS L ELFIELD (of Counsel) MESSRS USMAN & CO Solicitors 6A Blenheim Grove Peckham London SE15 4QL
For the Respondent	MR TOBY HOOPER (of Counsel) MR H POOL Legal Department Securicor Management Services Sutton Park House 15 Carshalton Road Surrey SM1 4LD


 


HIS HONOUR JUDGE CLARK: This is an appeal by the Applicant, Mr Edmundson, against the decision of a Chairman, Ms Christiana Hyde, sitting alone at the London (South) Employment Tribunal on 6 February 1998, dismissing his complaint of unfair dismissal against his former employer, the Respondents, Securicor Guarding Limited, on the ground that it was time-barred. The extended reasons for that decision are dated 26 February 1998 (the reasons).

The Facts

No oral evidence was given below. The case was decided on documentary evidence and submissions on behalf of the parties.

The Appellant commenced employment with the Respondent as a security officer on 10 March 1975.

On 15 May 1997 he attended a disciplinary hearing to answer two charges of misconduct; (a) that he had behaved unprofessionally whilst on duty at a customers premises by urinating into a cup and pouring the contents into the kitchen sink, (b) theft and/or an intention to steal. The interviewing manager, Mr Cruickshank found both charges to be made out and dismissed the Appellant summarily for gross misconduct at that hearing without pay in lieu of notice. Dismissal with effect from that date was confirmed by letter dated 22 May 1997.

Against that decision the Appellant exercised his right of appeal under the Respondent's disciplinary and appeals procedure. His stage I appeal was heard by Mr Sorrell on 9 June 1997. He upheld Mr Cruickshank's decision to dismiss the Appellant summarily on the theft charge alone.

Against that decision the Appellant instituted a stage II appeal. That appeal came before the Personnel manager, Mr Peter Mills, on 27 June. Throughout the disciplinary procedure the Appellant had been represented by his staff association. On this occasion he was represented by Ms Lethbridge-Carr, a Staff Association Officer, and , Cavan Gent.

Mr Mills adjourned the hearing in order to obtain a CCTV recording in relation to the alleged theft charge. Before doing so he expressed the view that Mr Cruickshank had a reasonable belief that a theft or attempted theft had taken place, but indicated doubts as to the procedural fairness of the earlier disciplinary hearings. Before the meeting was reconvened, on Monday 30 June, Mr Mills was telephone by Ms Lethbridge-Carr, who suggested the possibility of the dismissal being converted from gross misconduct to a medical discharge.

Mr Mills acceded to that suggestion and a document was drawn up and signed by Ms Lethbridge-Carr on behalf of the Appellant and dated 1 July 1997 headed "Termination of Employment by Agreement". It read as follows:

"This Agreement is made between Mr E. Edmondson (the employee) and Securicor Guarding Limited (the Company).

IT IS AGREED between the parties as follows:

1. The Company will pay the statutory maximum 12 week's notice to the employee from the 15th May 1997 until the 7th August 1997 inclusive, on a non-taxable basis.

2. The employee will be dismissed with effect from the 15th May 1997 on the grounds of being medically unfit for duty. His employment record will be marked accordingly.

3. In consideration of these arrangements, the employee will refrain from instituting (or continuing) a complaint against the Company before an Industrial Tribunal.

4. The employee accepts these arrangements made by the Company in full and final settlement of all other claims, whether statutory, contractual or otherwise which he has or may have against the Company arising out of or in connection with his employment by the Company and the termination thereof."

We pause to observe that that agreement was not a valid compromise agreement within the meaning of Section 203 of the Employment Rights Act 1996.

On 8 July the Respondent wrote to the Appellant informing him of the outcome of the appeal. The letter recorded; so far as is material:

"Having heard your appeal and considered all relevant facts, and in the light of your unfortunate poor health, Mr Mills rescinded the original decision to dismiss you for gross misconduct in favour of dismissal on medical grounds. This will be recorded on your file as the reason for your leaving.

and later

"Dismissal on medical grounds, effective from 15 May 1997, will enable the following payments:

• You will receive the statutory maximum of 12 (twelve) weeks pay, non-taxable, in lieu of notice. This equates to 48 hours @ 3.85 per hour x 12, a total of £2217.60 net.

• You will receive 5 (five) weeks holiday pay, taxable, payable to full time employees who joined the Company before May 1979. This equates to 48 hours @ £3.05 per hour x 5, a total of £924.00 gross.

• You will receive the holiday pay, taxable, for the time accrued from 01 May 1997 to 15 May 1997 inclusive. Holiday is accrued at the rate of approximately four and a half hours per week (totalling 240 hours per year for those entitled to five week holiday). This equates to 9 hours for the two weeks to 15 May @ £3.85 per hour, a total of £34.65 gross.

Payments will be made by credit transfer into your bank account by the close of business on 15 July 1997."

Those payments were duly made.

The Appellant was invited to sign a termination of employment by agreement form in the same terms as those signed by his representative. He did not do so.

He presented his Originating Application to the Employment Tribunal on 7 October 1997. The effective date of termination (EDT) of employment was said to be 8 July 1997.

By their Notice of Appearance the Respondent took the point that the EDT of the contract was 15 May 1997, and consequently the complaint was out of time.

It was that limitation point which came before the Chairman as a preliminary issue.

The Chairman's Decision

Having set out the chronology, directed herself to the relevant statutory position as to time limits (Section 111) and the definition of EDT (Section 97(1)), the Chairman set out the parties' rival submissions and accepted those advanced by Mr Hooper on behalf of the Respondent. She found that the EDT was 15 May 1997 and that there were no grounds for finding that it was not reasonably practicable to present the claim within three months. Accordingly, it was dismissed.

The Appeal

As so often happens in these cases, where various arguments are deployed on either side, the point in the appeal boils down to a single issue which in this case can be formulated in this way; was the dismissal on 15 May 1997 rescinded, and a fresh dismissal effected, for a different reason by the Respondent's letter of 8 July? If so, the appeal succeeds. If not, the original EDT of 15 May stands, and the appeal fails, no point being taken on reasonably practicability.

Miss Elfield submits that the original dismissal was rescinded and a fresh dismissal took place by reason of medical incapacity with effect from receipt by the Appellant of the letter of 8 July. She has referred us to cases in which the dismissed employee is reinstated or re-engaged as a result of the internal appeal process. See Howgate v Fane (1981) IRLR 161; High v British Railways Board (1979) IRLR 52 and British Broadcasting Corporation v Beckett (1983) IRLR 52.

As has often been observed, each case depends on its own facts. We accept that where an employer, as a result of the appeal process, finds that the original reason does not justify dismissal, but a different reason might, the employer ought to rescind the original dismissal and effect a fresh dismissal based on the new reason National Hart Hospital v Nambiar (1981) IRLR 196, approved in the speech of Lord Bridge in West Midlands Co-operative Society Limited v Tipton (1986) ICR 192. That is because, in defending a substantive claim of unfair dismissal, it will not be open to an employer to rely on a reason for dismissal which post-dates the dismissal. Devis v Atkins (1977) AC 931.

However, we must not confuse the question of fairness with the question, what is the EDT in this case. We have carefully considered the Respondent's letter of 8 July 1997. It is clear , as a matter of fact, that it was open to the Chairman to construe it as expressly stating that the dismissal was effective from 15 May 1997 (reasons, paragraph 6), and to accept the submission made by Mr Hooper on behalf of the Respondent and recorded at paragraph 10 of the reasons in this way:

"The letter of 8 July 1997 recited in the clearest terms that what was changed was the reason for the dismissal not the date."

Looking at the structure of that letter, it is plain that Mr Mills was rescinding the original decision to dismiss the Appellant for gross misconduct in favour of dismissal on medical grounds. The reason was purportedly changed, not the fact of the initial dismissal.

That is borne out by the express reference to dismissal on medical grounds effective from 15 May 1997, and the calculation of consequential gross pay in lieu of notice from that date, rather than net pay being made up to 8 July from 15 May, and thereafter 12 weeks gross pay in lieu of notice.

We have disregarded the so-called Termination of Employment by Agreement document, which we consider only goes to obscure the real issue in the case.

In these circumstances, we can find no ground in law for interfering with the Chairman's decision and this appeal must be dismissed.