United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR C BARR REPRESENTATIVE
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE SMITH:-

1. This in an appeal by the employers before the Employment Tribunal, namely the Lighting Maintenance Company, against the decision of an Employment Tribunal held at London North as long ago as on 1^st September 1998 of which Extended Reasons were sent to the parties on 15^th September 1998, whereby the Employment Tribunal held on a preliminary issue as to jurisdiction, that the Applicant before them, Mr J P Heavey, the employee, had presented his application for his complaints for unfair dismissal and breach of contract within three months of the effective date of termination of his contract of employment, so that the Employment Tribunal held that it had jurisdiction to entertain his claim.
2. In the alternative, the Employment Tribunal held that it was reasonable to extend time. We have had submissions today on behalf of the Appellants from Mr Barr and we were also informed that Mr Heavey had decided not to attend in support of his opposition to the appeal and therefore we have not had any representations or submissions from him today in person but we have of course considered all the documents in the bundle before us including his answer to the notice of appeal in arriving at our conclusions.
3. Before the Tribunal, it was Mr Heavey's case that the effective date of termination of his contract of employment was the 15^th April 1998 so that the presentation of his complaints to the Employment Tribunal on 10^th July 1998 were within time. As we said earlier, the Employment Tribunal upheld that submission and concluded in the alternative that it was satisfied that it was not reasonably practicable for the complaints to be presented before the end of the three month period and it was reasonable for the Applicant accordingly to have presented them on the 10^th July 1998.
4. It was the Appellants' contention on the other hand before the Employment Tribunal that the effective date of termination of Mr Heavey's contract of Employment with them within section 97(1)(b) of the ERA 1996 was the 31^st March 1998 and thus that the applications were out of time. The Appellants further contended before the Employment Tribunal that on the proper construction of the correspondence there can have been no confusion about the effective date of termination in the Applicant's mind and that accordingly it was reasonably practicable for the Applicant to have presented his complaint within the three months time limit so that it was not appropriate that time should be extended. As appears from the findings of the Employment Tribunal Mr Heavey had been employed by the Appellants in various capacities from July 1995. The Employment Tribunal considered various letters passing between the Applicant and the Appellants. There was an important letter of 12^th February 1998 from the Appellants to Mr Heavey informing him that his position as Technical Assistant with the company was to be made redundant as of 10^th February 1998. The letter went on to offer an alternative position as a PAT Electrician and went on to state that Mr Heavey was to be allowed the continued use of his company car and current rate of salary until 31^st March 1998 after which the new terms and conditions would apply. That was the effect of that letter.
5. The Applicant, Mr Heavey, then wrote what is clearly the key letter on this issue, in our judgment, on 31^st March 1998. That letter was in these terms:-

"Mr Paul Murrey-Smith

The Lighting Maintenance Company

Sovereign House, 2 Sovereign Park

Coronation Road, Royal Park

London NW10 7QP

31^st March 1998

Dear Paul

I am writing to you today to make you aware that I have been forced to accept an offer of redundancy from Richard Willmott with effect from 31 March 1998.

An alternative position was made available to me, but the requirements to undertake the job are below my managerial experience and require a detrimental and substantial decrease to my current terms and conditions.

I would like to take this opportunity of thanking you for your encouragement and support during my time at LMC. It is much appreciated.

I RETURN THE ASTRA (KEYS ENCLOSED), THE FUEL CARD, THE PAGER.

Please give my best wishes to all office staff and I wish you and them well for the future.

Yours sincerely

Joseph Heavey"

6. The Employment Tribunal found that it was common ground that the Applicant, Mr Heavey, had ceased to work after 31^st March 1998 and no longer attended work. However, the Employment Tribunal also found that in their words:-

"the Applicant had not resigned by any phrase in the letter of 31^st March to which we have made reference."

7. There matters remained until the Appellants wrote to the Applicant, Mr Heavey, on 15^th April 1998 as follows:-

"Dear Mr Heavey

I refer to our meeting of 10^th February 1998, at which I advised you that the position of Technical Assistant was to become redundant from 31^st March 1998.

You were offered an alternative position as a PAT Electrician and you commenced a trial period on 12^th February. You were asked to signed and return your acceptance of this position which you did not do. I have not heard from you since 26^th March, although you did return your car, keys and Company cards, etc, on 31^st March 1998.

In the absence of your acceptance of this alternative position I have to advise you of the termination of your employment with effect from 31^st March 1998 on the grounds of redundancy.

You are entitled to two weeks notice which you will not be required to work but will instead be paid in lieu. This, together with your redundancy pay, is free of tax under current revenue rules.

Notice two weeks: £284.81 x 2 = £ 569.22

Redundancy £210.00 x 3 = £ 630.00

TOTAL £1,199.22

Any other monies to which you may be entitled will be paid to you in due course.

May I first take this opportunity to thank you for your services and wish you well for your future.

Yours sincerely

Richard Willmott

Deputy Managing Director"

8. It has been strong submitted to us by Mr Barr on behalf of the Appellants that the Employment Tribunal misconstrued the exchange of letters on 12^th February 1998, the 31^st March 1998 and 15^th April 1998, and that on the proper construction of those letters it was beyond doubt that the contract of employment had been terminated by the Appellants on 31^st March 1998 and that the Applicant, Mr Heavey, by his letter of 31^st March 1998 had accepted a termination of his contract of employment with immediate effect on the grounds of redundancy and thus that 31^st March 1998 was the effective date of termination. It was further submitted that the letter of 15^th April 1998, properly construed, only served to confirm the clear understanding that Mr Heavey's employment had been terminated with effect from 31^st March 1998.
9. We have carefully considered the arguments and the Employment Tribunal's decision and have concluded that the decision of the Employment Tribunal is, with respect, erroneous and places upon the relevant correspondence to which we have referred above a construction which those documents simply will not bear read with ordinary commonsense. In our judgment, the Applicant's own letter of 31^st March 1998 is clear in its terms and amounts to an unqualified acceptance of the employers' previously stated intention to terminate his contract on the grounds of redundancy, as of the 31^st March 1998. The terms of the Applicant's letter of 31^st March 1998, in our view, is simply not susceptible of any construction other than that the Applicant, Mr Heavey, was then and there accepting termination of his employment by accepting the offer of redundancy with immediate effect.
10. This is made even plainer in our view by the physical return by Mr Heavey on the same day of his company car, the fuel card and his pager. In our judgment, had he been asked to turn up for work the next day the Applicant, Mr Heavey, could lawfully have refused to present himself for work in reliance upon that letter. Nor in our judgment does the letter of 15^th April, properly construed, in any way alter the position. Indeed, that letter in terms confirm that the termination of the Applicant's employment had taken place on the 31^st March 1998. The fact that the letter refers to the Applicant's entitlement to two weeks' notice in our judgment made no difference since the letter made clear that there was no requirement to work during that period but rather that there was to be a payment made in lieu of notice. This statement did not have the effect of extending the contract for a further two weeks, since the effect of the letter in so far as it referred to notice was that the money in lieu of notice was, as a matter of law, a payment by way of damages for breach of contract. See the analysis of Dixon v Stainor [1973] Ltd ICR 157 particularly at page 158 at letter G.
11. The Applicant's contract of employment had already been terminated on 31^st March 1998 and thus it could not be extended by the terms of the letter of 15^th April 1998 and the payment of two weeks' salary in lieu of notice was properly construed, a payment by way of damages for breach of contract arising from the termination of Applicant's contract without due notice.
12. Accordingly, in our judgment it was erroneous for the Employment Tribunal to conclude as it did in paragraph 4 of its decision that the only effect of the Applicant's letter of 31^st March 1998, was that the Applicant ceased to work in an unauthorised manner. In our judgment, the terms of that letter plainly amounted to an acceptance by the Applicant of the employer's decision to make him redundant on 31^st March 1998 in accordance with their earlier letter to him of 12^th February 1998.
13. Equally, in our judgment, the Employment Tribunal misconstrued the effect of the letter of 15^th April 1998. Accordingly, we find that the Employment Tribunal should have held that the application was out of time. We consider that it is appropriate for us to substitute our own finding in relation to that decision since the decision turns upon the proper construction of letters which we have had a full opportunity of considering.
14. We turn next to consider the Employment Tribunal's decision to extend time on the basis that it was not reasonably practicable for the Applicant, Mr Heavey, to present his complaints in time. In our judgment, this decision by the Employment Tribunal was based entirely on a finding that there was an understandable confusion, on the findings of the Employment Tribunal, in the Applicant's mind as to the effect of the correspondence and that he had in some unexplained way been confused into thinking that the effective date of termination was 15^th April 1998.
15. In our judgment, there was no objective evidence upon which the Employment Tribunal could reach such a conclusion. The effect of the correspondence, and in particular, the Applicant's own letter of 31^st March 1998, together with his conduct in handing back the car, the fuel card and the pager, were only consistent with the clearest understanding on his part that his employment had been terminated on 31^st March 1998. On any objective view of the correspondence in our judgment there was simply no room for any misunderstanding on the part of the Applicant which could properly have confused him as to when his employment had been terminated, namely, 31^st March 1998. We appreciate and bear fully in mind that we should be very slow to interfere with the Employment Tribunal's decision on what is a question of fact but in our judgment the conclusion reached by the Employment Tribunal was with respect to manifestly wrong and was based upon their own misconstruction of the correspondence in the first place. Properly construed in our judgment the correspondence could not have confused the Applicant.
16. Accordingly, for those reasons, we have concluded that the proper order here is for us to set aside the order of the Employment Tribunal and substitute our own decision that the complaints were out of time and that it was reasonably practicable for them to have been presented within time and that accordingly we must substitute an order that the Applicant's complaints for unfair dismissal and breach of contract should be dismissed.