United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R LIEPER (of Counsel) MESSRS CLARKE WILMOTT & CLARKE Mansion House Princes Street Yeovil Somerset BA20 1EP
For the Respondent	MR J MOFFETT (of Counsel) THE STOKES PARTNERSHIP Kingfisher House Market Square Crewkerne Somerset TA18 7LH


 


JUDGE CLARK

1. The Applicant before the Exeter Employment Tribunal, Mrs Le Mare, commenced her employment with the Respondent firm, Princess Plastics, in June 1989. At all relevant times she was employed as the Financial Secretary; the principal of the firm was Mrs Smiles.
2. By an Originating Application, presented to the Employment Tribunal on 10 March 1999 the Appellant contended that she had been dismissed by the Respondent on 18 December 1998 by reason of redundancy and that she was entitled to a statutory redundancy payment. She was then represented by solicitors.
3. By a Notice of Appearance dated 29 March 1999 and entered by Mrs Smiles the Respondent denied that the Applicant had been dismissed and alleged that her employment ended (other than by dismissal) on 5 February 1999. The claim was resisted.
4. The matter came on for hearing on 7 May 1999, both parties then appearing in person. By a decision promulgated with extended reasons on 18 May 1999 the Employment Tribunal found that the Applicant was dismissed on 18 December 1999 by reason of redundancy and that she was entitled to a redundancy payment of £2,725.96.
5. The Employment Tribunal found the following facts. On 25 September 1998 there was a redundancy situation. It was possible that the factory would close. Mrs Smiles issued the Applicant with 12 weeks notice of dismissal expiring on 18 December 1998 by a letter dated 25 September.

That letter read: -

"Dear Kate, Due to a severe downturn in our work load we unfortunately have to make your position redundant, I hearby give you 3 months notice, so your last days employment will be on Friday 18 December 1998.

I will give you a reference if you require one and wish you all the best in finding employment."

On 18 December 1998 Mrs Smiles handed the Applicant a further letter of that date. A short passage appears in the Employment Tribunal's reasons as follows: -

"your 3 months notice has expired."

The Employment Tribunal went on to find at paragraph 4 of their reasons: -

"Taking that part of the letter in isolation, we come to the conclusion that on the expiration of the 3 month notice period the applicant was dismissed. It is a general rule that notice cannot be withdrawn or extended without the agreement of both parties. Mrs Le Mare had not agreed to the extension of the notice period and therefore the original 3 month period must stand. The letter of 18 December goes on:

I hearby give you a further 3 months notice from today's date which will expire on the 12 March 1999. You will be fully employed until this date, at which time I hope our work load has significantly improved."

6. On that basis the Employment Tribunal found that the Applicant was dismissed on 18 December 1998 and was entitled to a redundancy payment.
7. It follows that the Employment Tribunal upheld the Applicant's case and rejected that of the Respondent.
8. Although no findings of fact are made by the Employment Tribunal as to what happened after 18 December 1998, it seems that the Applicant continued in her old employment until on 22 January 1999 she gave the Respondent notice of termination of her employment to expire on 5 February 1999. She finished work on that date.
9. Against the Employment Tribunal's decision the Respondent appealed, having instructed solicitors, by a Notice dated 8 June 1999. The appeal was permitted to proceed to a full hearing at a preliminary hearing held on 11 November 1999.
10. In the appeal it is now common ground between Counsel that the Employment Tribunal were wrong in law to find that the Applicant was dismissed on 18 December 1998. They overlooked Section 138(1) of the Employment Rights Act 1996, which provides:

"(1) Where-

(a) an employee's contract of employment is renewed, or he is re-engaged under a new contract of employment in pursuance of an offer (whether in writing or not) made before the end of his employment under the previous contract, and

(b) the renewal or re-engagement takes effect either immediately on, or after an interval of not more than four weeks after, the end of that employment,

the employee shall not be regarded for the purposes of this Part as dismissed by his employer by reason of the ending of his employment under the previous contract.

11. It is accepted by Mr Moffett that on 18 December 1998 the Applicant's contract of employment was renewed on the same terms as before. Hence, there was no dismissal on that date as a result of the original notice of 25 September 1998. We agree with that analysis of the effect of Section 138(1).
12. The Employment Tribunal were in error as a matter of law. Does that mean that the appeal succeeds without more?
13. No, submits Mr Moffett. He contends that by relying on Section 138(1) of the Employment Rights Act, the Appellant is taking a new point on appeal. If she is to be permitted to do so, then he should be allowed to respond by taking what he accepts is a new point in turn. He wishes to rely on the provisions of Section 136 of the Act to argue that during the obligatory period of the employers second notice dated 18 December 1998 the employee gave notice in writing to terminate the contract on 5 February 1999, a date earlier than the expiry date of the employer's second notice, 12 March, and that in the absence of a counter-notice served by the employer under Section 142 the true analysis is that the Applicant was dismissed by reason of redundancy on 5 February 1999 and thus the Employment Tribunal's decision that she was entitled to a redundancy payment can be supported in law.
14. We have considered the effect of the Court of Appeal decision in Jones –v- Governing Body of Burdett Coutts School (1998) IRLR 521, and Glennie –v- Independent Magazines (UK) Ltd (1999) IRLR 719 on Appellants seeking to take a new point on appeal, and Hellyer Bros Ltd –v- Mcleod (1987) ICR 526, where the Respondent to the appeal wish to take a new point in support of the decision below. The rule is the same in both cases. A new point will only be allowed in exceptional circumstances, particularly where no issue of jurisdiction arises as in this case and further findings of fact by the Employment Tribunal will be necessary.
15. Mr Moffett's new point plainly falls foul of that rule. The question is whether Mr Leiper is seeking to take a new point. In our judgment he is not. It is right to say that Mrs Smiles did not refer to Section 138 below, but her case, that there was no dismissal, necessarily depended on the application of Section 138 to prevent dismissal taking place on 18 December 1998. No further findings of fact are necessary to deal with the Appellant's submission.
16. In these circumstances we shall not permit Mr Moffett to take the Section 136 point. The Employment Tribunal was in error in finding that the Applicant was dismissed on 18 December 1998 by virtue of the operation of Section 138(1). Her claim for a redundancy payment therefore fails on the basis on which it was advanced below. The appeal must be allowed and the Employment Tribunal's award set aside.